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Same Sex: Submissions

I have lived and maintained a relationship with David Cox for almost twenty-five years, since 18 December 1981. Our relationship goes back to when we first started to see each other in 1978, when we were both eighteen. We are Australian citizens, and we have lived for the past ten years in Washington DC. We are the same sex and the same age, forty-five.

There are three issues we’d like to bring to the attention of the Inquiry:

1. Even though ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation enterd into force for Australia on 15 June 1974, the Department of Foreign Affairs and Trade did not comply with its provisions for more than twenty years.

2. The Australian Government does not press foreign states to recognise same-sex relationships under the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.

3. The Commonwealth Superannuation Scheme does not recognise same-sex relationships for benefits purposes.

The remainder of this submission outlines how these three things have affected us over a period of fifty cumulative years of public service to Australia.

In 1988, David was offered an assignment to Athens, Greece, by his employer, the Department of Foreign Affairs and Trade. By minute of 14 March 1988, he sought official recognition of our relationship in accordance with the process for unmarried couples of the opposite sex, outlined in the Department’s Administrative Circular No. 143/87 of 14 September 1987.

The Department declined his application on 5 April 1988, citing the Public Service Board’s News Release No. 9 of 10 August 1984 which states, “Conditions of service applicable to officers serving overseas including fares and other allowances do not extend to homosexual partners”. One wonders why this sentence was included in the News Release announcing the Board’s alleged “policy of non-discrimination against homosexuals in relation to employment in the Australian Public Service”. “The Department is not able to recognise your relationship with Mr Corbitt”, David was told, “nor are you eligible for accompanied rates of allowances and entitlements”.

At the time, I was employed at the Australian Institute of Sport. I applied for leave without pay for the duration of David’s posting. Public Service Board Determination 1983/10 allowed for the granting of leave without pay to accompany a spouse on a posting overseas (clause 2.3.13). Acting  on the advice of the then Department of Industrial Relations, the Institute would not approve leave under that provision, approving leave “for private purposes” instead (clause 2.2.35), which would not count as service and denied me the opportunity to continue my superannuation contributions.

David took up his assignment in Athens in May 1988, and I went with him at our own expense. Not only were we deemed not to be entitled to accompanied rates of allowances and entitlements, benefits which accrue as a matter of course to couples of opposite sex, but being in Greece as a tourist meant that I had to leave and re-enter Greece every three months. The alternative was to tackle the bureaucracy, not always with success, for short extensions to my Alien’s Residence Permit. I was not permitted to seek employment.

A year later, we decided to broach the subject with the Department once more. David wrote to the then Senior Administrative Officer at the Embassy on 24 May 1989, taking issue with the Department’s refusal to recognize our relationship. “This blatant bigotry continues to cause us heartache as well as placing an unfair financial burden on our household”, he wrote. “It stands an affront to our human rights and it is contrary to the former Public Service Board's policy of non-discrimination, of equal employment opportunity, and of the recognition of relationships of this type in the conferring of employment benefits… It is shameful that the meaning of words and phrases is being used to deny my rights: surely equitable application across the workforce is a matter of common decency”.

The Senior Administrative Officer forwarded David’s minute to the Department under cover of a supportive letter of his own. The response from the Assistant Secretary, dated 28 June 1989, reaffirmed the earlier refusal.

We returned to Canberra from Athens in May 1991. In December 1994, the Department finally agreed to recognise same-sex relationships. Clause 9.3 of the Department’s “Agency Bargain” was the authority. “Conditions applying to staff in recognised de facto relationships will apply regardless of sexual preference”, it stated.

In August 1995, David was assigned to Washington DC. He applied for recognition of our relationship on 24 August 1995, and it was granted. I was working at the Australian Sports Commission at the time. The Commission granted leave, without making a distinction between whether or not it was leave for prescribed purposes or leave for private purposes.

But that’s not the end of the story.

When he agreed to accept the assignment, David was told that the Department would press the United States Government “as hard as you want” to recognise our relationship for the purposes of privileges and immunities under the Vienna Convention on Diplomatic Relations. In fact, although we were comfortable for our relationship to be used to build on Australia’s tradition of moving civil rights forward, we found that Embassy management was not interested in pressing the United States Department of State on the matter.

The Embassy filed an application with the Department of State for David’s accreditation under the Convention on 1 December 1995, naming me as a family member. It was the first time any embassy had asked, and it was written up in the November 1996 issue of the American Foreign Service Association’s Foreign Service Journal. “The Australian request generated a cable from State to American embassies in more than 20 countries soliciting information about other countries’ policies on the issue”, the article reads. “In the cable, the department said no such request had been received before”.

In its exequatur of 11 January 1996, the Department of State wrote “The Embassy’s request for extension of privileges and immunities to

Mr Corbitt as a family member is under review and will be addressed subsequently”. It remained under review for the length of David’s three-year assignment: State’s way, we presume, of not offending with a refusal.

All this might have been palatable to us except that the Department of State accepts common law partners of the opposite sex as dependents and extends privileges and immunities to them. We would have felt more supported if the Department had at least asked State for a decision from time-to-time instead of letting its application languish. Had we continued to challenge State, it might have resulted in a change that would have benefited many other members of embassies and consulates in the United States, not just our own.

The third matter is where we feel most discrimination, and that is the matter of superannuation. Both of us have holdings with the

Commonwealth Superannuation Scheme (CSS) from when we worked in the Australian Public Service, but neither of us will obtain a benefit if the other dies. “A spouse will receive a CSS benefit provided that he/she had a marital relationship”, states the literature. “A marital relationship is where two people of the opposite sex live together as husband and wife in a permanent and bona fide domestic relationship for a continuous period of at least three years prior to the date of death”.

It doesn’t seem to matter to the CSS Board that we have lived together in a permanent and bona fide domestic relationship for a continuous period of a quarter century already. Because we are the same sex, one of us will be robbed of the pension earned by the other. If the law is not changed, the biggest insult by the Australian Government will come when one of us dies.

Thank you for the opportunity to contribute.

Michael Corbitt

9 May 2006