Australian Capital Territory
HUMAN RIGHTS OFFICE	

Level 12, 14 Moore St	GPO Box 158
Canberra City	CANBERRA   ACT  2601
	
TTY:   (02) 62070525	Tel:     (02) 62070576
Internet: http://www.hro.act.gov.au	Fax:    (02) 62070587

Ms Elizabeth Kelly
A/g Chief Executive
ACT Department of Justice and Community Safety 
PO Box 158
Canberra ACT 2601

Dear Ms Kelly,

Recognition of same sex relationships in the ACT: Submission on Discussion Paper 
I fully support the Government’s stated commitment to implement full equality for gay, lesbian, bisexual, transgender and intersex people in the ACT, to the extent of its legislative power. We welcome the opportunity to comment on this Discussion Paper and note that substantial law reform has already improved the status and protection of people in same sex relationships. 

The 2005 report on homophobia published by the Australia Institute confirms that nationally gay men and lesbians continue to experience discrimination, harassment and exclusion. However, it is encouraging to note that majority opinion is accepting of homosexuality. The recent Australian Survey of Social Attitudes found strong support in the ACT for legal recognition of same-sex relationships. Recognition of same-sex relationships is important to ensure that minority prejudices are not legitimated and reinforced by the legal framework. It is vital in this context that same-sex relationships are not accorded ‘second-class’ status to heterosexual relationships. 

The Discrimination Act 1991 (ACT) prohibits discrimination in public life on grounds of sexuality, transsexuality, and relationship status, and provides for remedies where individual complaints of discrimination are substantiated. The Human Rights Act 2004 (ACT) (‘HR Act’) provides positive guarantees of equality under section 8, privacy under section 12, protection of the family and children under section 11 and establishes a framework of compliance within which new laws and government policy must be developed and existing laws interpreted under section 30. The Act enables the application of international and comparative human rights jurisprudence under section 31. These provisions should inform assessment of the best legislative option for relationship recognition, as the current difference of treatment between heterosexual and homosexual couples appear to breach sections 8 and 12, and possibly 11, of the HR Act. For constitutional reasons there is no right to marry in the HR Act, as under article 23 of the ICCPR, so case law on this point is not considered.

The Discussion Paper canvasses three options for formal recognition of same sex relationships:
•	a registration scheme to be operated by the Registrar-General’s Office; 
•	civil unions which would involve a ceremony as well as registration; and/or 
•	defining marriage to include same sex relationships under ACT law.  
The intended effect of all the options is to accord same sex couples equal rights with opposite sex married couples, to the extent that ACT law can achieve this.  

Marriage is the preferred option
The Discussion Paper asks the question ‘whether further legislation should provide to same sex couples all of the legal rights which a married opposite sex couple would have’(para 1.1). Substantive equality can only be ensured through granting same sex couples the right to marry – this can be achieved through enacting a law stating that under ACT law the definition of ‘marriage’ includes a lawful union of two people of the same sex. While marriage is the central social institution for validating intimate and committed relationships, this is the preferable way to accord equal rights and social status to people, regardless of sexual orientation. Set out below are some supporting arguments under specific rights in the Human Rights Act 2004 (HRA). 

Non-discrimination and equality before the law  - section 8 Human Rights Act 2004
Subsection 8(2) of the HRA provides that everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind. Subsection 8(3) of the HRA provides that ‘everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.’ The Examples of discrimination from which people are entitled to be protected under the Act, although not exhaustive, expressly include ‘sexual orientation’.

These primary sources of these provisions are the rights of equality and non-discrimination in articles 2(1), and 26 of the International Covenant on Civil and Political Rights (‘ICCPR’). There is a strong emphasis on non-discrimination in the ICCPR because ‘discrimination is at the root of virtually all human rights abuses.’ Article 26, which protects equality before the law and equal protection of the law, requires that laws themselves, as well as their application, are non-discriminatory. Legitimate distinctions, where the criteria for any differential treatment ‘are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’, may not amount to prohibited discrimination.

The Human Rights Committee found in the case of Toonen v Australia that the rights of privacy (article 17) and non-discrimination (article 2(1)) in the ICCPR were breached by laws criminalising private homosexual acts between consenting adults. No finding was made of a breach of the right to equal protection of the law under Article 26, despite it being argued by the complainant. The Committee did, however, confirm that the term ‘sex’ in articles 2(1) and 26 is to be taken to include sexual orientation.

In the case of Young v Australia the Human Rights Committee found that Australia had violated article 26 of the ICCPR by denying Mr Young a war veteran dependent’s pension on the basis of his sexual orientation. The Committee noted that Australia provided no arguments on how the distinction between same-sex partners and unmarried heterosexual partners is reasonable and objective.

In Canada, the Supreme Court found that the definition of spouse in social security statutes as a person of the opposite sex, contravened the non-discrimination and equality provisions in the Canadian Charter of Rights (section 15). It stated that ‘the definition of “spouse” as someone of the opposite sex reinforces the stereotype that homosexuals cannot and do not form lasting, caring, mutually supportive relationships with economic interdependence in the same way as heterosexual couples. The effect of the impugned provision is clearly contrary to s.15’s aim of protecting human dignity, and therefore the distinction amounts to discrimination on the basis of sexual orientation.’ In Halpern v Toronto the Ontario Court of Appeal considered all facets of the issue and concluded that ‘it is our view that the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage…’ It declared the common law definition of marriage to be invalid to the extent that it referred to ‘one man and one woman’. 

Commentaries on these cases highlight that the societal status and significance of marriage, and the corresponding benefits that are available only to married persons, cannot be overlooked. Exclusion of same sex couples from fundamental institutions of society perpetuates the view that same-sex relationships are of less value than opposite sex relationships. 

In a recent Canadian case where same-sex couples were denied a licence to marry in Saskatchewan, the court ordered that the common law definition of marriage is declared to be ‘the lawful union of two persons to the exclusion of all others’, and ‘civil marriage between two persons of the same sex who otherwise meet the substantive and procedural requirements of federal law governing capacity to marry…is a lawful and valid marriage.’ This case is of particular relevance for the ACT because the Attorney General of Saskatchewan argued that it was not within the Province’s power to change the definition of marriage, as it was a federal matter. The Court rejected this argument, found that in light of the previous decisions in favour of same-sex marriage the Province should have been more pro-active in authorising same-sex marriage and ordered that the Province share the applicants’ costs with the federal Attorney General. 

Privacy and reputation - section 12 Human Rights Act 2004
Section 12(a) of the HR Act provides that ‘everyone has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.’ The primary source of section 12 is Article 17 of the ICCPR, which has been said to impose positive obligations that ‘require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.’

The Toonen case referred to above extends the notion of privacy to include sexuality. Several precedents exist in Canada, Hungary, South Africa and Israel that support the Toonen principle that sexual preference is an extension of a person’s private sphere. The principle that a person’s sexual life to be ‘a most intimate aspect’ of his or her private life is also recognised by the European Court of Human Rights, which has been extended to cover the right to develop one’s own personality and the right to create relationships with others. The Court held that the right was also violated by invasive investigations, as well as the actual discharge, of homosexuals from the military – although the discharges were according to law in order to achieve the legitimate aim of national security, the interferences with privacy were not necessary in a democratic society, with its hallmarks of pluralism and tolerance. 

At present gay and lesbian couples are required to establish proof of their relationship in ways that may interfere with or violate their privacy, including for example having to prove that they have lived together, that their relationship is of a sexual nature, and/or been financially dependant on each other for a certain length of time. Under subsection 12(1) of the Domestic Relationships Act (ACT) 1994 partners also cannot claim the benefits of their status within the first two years of commencing a relationship. While heterosexual de facto partners may be subject to similar invasions of privacy and the two-year bar, they can be avoided by choosing to marry. 

Protection of the family and children - section 11 Human Rights Act 2004
Section 11 of the HRA provides for the protection of the family and children and notes that ‘Family has a broad meaning’. Section 11 is derived from on Articles 23 and 24 of the ICCPR. In General Comment 16, Human Rights Committee said that the term ‘family’ must be given a broad interpretation to include all those comprising the family as understood in the society of the State party concerned…’ Families include same sex families and they are entitled to protection by society, which includes being treated with dignity and respect. Subsection 11(2) provides that children have the right to protection ‘without distinction or discrimination of any kind’. Children in same-sex families may experience discrimination or social exclusion if their parents are denied the opportunity to validate their relationship through marriage. 

The Human Rights Committee’s General Comment 19 gives States ‘a certain cultural leeway in determining the definition of family.’ However, a State cannot limit the definition by applying structures or values which breach international human rights standards. The family life provision in the European Convention on Human Rights (article 8) as implemented in the UK Human Rights Act 1998, has been found less effective than the privacy provisions in protecting the rights of homosexual and transsexual unions. In Ghaidan v Godin-Mendoza, Lord Nicholls held that ‘a homosexual couple, as much as a heterosexual couple, share each other’s life and make their home together.’ In this case the Court read down the words ‘as his or her husband and wife’ to ‘as if they were his or her husband and wife’ to avoid discriminating against same sex or de facto couples in respect of succession to protected rent tenancy. 

Proportionality - section 28 Human Rights Act 2004
The central issue is whether limitations on the rights of equality under section 8, of privacy under section 12, or protection of children and families is justified under section 28 of the HR Act: ‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.’
The main elements of the proportionality test are established by the Canadian case R v Oakes. The test involves two closely related concepts. First that there must be a legitimate objective, that is one of sufficient importance to justify overriding human rights. Secondly the measure must be proportional. There must be a rational connection between the public policy objective that a particular measure pursues, and the means that the state uses to pursue that objective: James v UK. They must strike a fair balance between the demands of the general interest of the community and the protection of the individual’s human rights. The measures must not go beyond what is necessary to achieve that objective. The more severe the deleterious effects of a limit, the more important the objective must be if the limit is to be reasonable and demonstrably justified. As a means of testing proportionality the court may enquire whether the State could have achieved the same objective by other means: Campbell v UK.

The proportionality test in section 28 should be interpreted as narrowly as possible when a ‘suspect category’ is in issue. The State must demonstrate ‘particularly serious reasons’ to justify any interference with an intimate aspect of private life. In Toonen v Australia the UNHRC held that the interference with the victim’s privacy could not be justified: 
...the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS...by driving underground many of the people at risk of infection...[it] would appear to run counter to the implementation of effective education programs in respect of HIV/AIDS prevention….[T]hese provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the reasonableness test in the circumstances of the case, and that they arbitrarily interfere with Mr Toonen’s right... 

It is necessary to consider whether the restriction on marriage of same sex partners serve a legitimate purpose in the ACT. On the assumption that this restriction’s purpose is to uphold traditional moral values, it is questionable whether such a rule is legitimate. Even if the aim is legitimate, it poses an unacceptable burden on those who are affected by the exclusionary rule. In Halpern v Toronto the Ontario Court of Appeal investigated at length whether restrictions on the right in question were justified, including religious and biological arguments for privileging heterosexual marriage. It applied a test similar to that in section 28 of the ACT HR Act, and concluded that they were not. In the UK case of Ghaidan v Godin-Mendoza, the House of Lords asked ‘what could be the legitimate aim of singling out heterosexual couples for more favourable treatment than homosexual couples?’ It concluded that if there ever was a legitimate aim, none now applied. 

The ACT could achieve a similar objective by other means, including registration or recognition of civil unions, but neither of these mechanisms achieve full equality of treatment between heterosexual and homosexual couples. Recognising marriage of same sex couples does not erode the rights of other groups, such as different sex couples or freedom of religion. 

International trends
Legislation to provide for same-sex marriage is enacted or being developed in an increasing number of jurisdictions around the world, whether civil or common law jurisdictions, including Canada, Spain, the Netherlands, Belgium, and the US State of Massachusetts. The enactment of the recent Civil Marriage Act 2005 in Canada involved vigorous public debate, and was supported by court rulings in eight provinces and one territory, as well as the Supreme Court, that opposite-sex requirements for civil marriage is discriminatory and in violation of the Charter of Rights and Freedoms. The new law includes a strengthening of freedom of religion to clarify that religious groups are still free to advocate for heterosexual marriage – minority rights are not eroded as the law does not remove rights of anyone, including religious groups or opposite sex couples.

ACT jurisdiction
With the implementation of the Human Rights Act 2004 the ACT has established itself as the first jurisdiction to implement a Bill of Rights and is a ‘beacon of hope’ for many in Australia. It would be an appropriate step in the building of our human rights culture to recognise same-sex marriage, to the extent that this can be done within the jurisdiction of the ACT. 

There are obviously constitutional issues involved, which are touched upon in the Discussion Paper and further set out in a previous ACT report on these issues. However, Professor George Williams’s advice on the validity of the Tasmanian Same Sex Marriage Bill 2005, is that it may not be inconsistent under section 109 of the Constitution because the legislation would operate in a different field to the Marriage Act 1961 (Commonwealth) that was amended in 2004 to confirm that it includes different sex couples and excludes same sex couples. 

Need for community education 
There has not been adequate publicity about the 2004 reforms recognising same sex relationships that are already in place, and I recommend that funding be provided for a comprehensive community education strategy accompanying the next set of legislative changes. Reports from members of the gay and lesbian community suggest that many remain unaware or uninformed of recent advances. Improving the community’s knowledge about and understanding of these equality rights needs to be a priority. My Office would of course be pleased to assist in the development of a community education campaign, in partnership with key community-based groups. 

If you have any queries or wish to discuss matters raised in this submission please contact Jenny Earle, Discrimination and Human Rights Law Policy Adviser, who has carriage of this work. 

Yours sincerely 

Dr Helen Watchirs 
Human Rights and Discrimination Commissioner 
19 August 2005