Canberra Hearings, 20 November 2006
Gary and Wayne were married in Toronto in February. They discuss their feelings about the marriage and how in Canada they were treated just like everyday people. However they noticed a difference when they returned to Australia.
Gary and Wayne comment that when they came back from Canada they felt like they were leaving a civilised country for a third world country, in terms of human rights.
Gary and Wayne explain that the Canadian Charter specifically prohibits discrimination on the grounds of sexuality. South Africa and New Zealand also prohibit this discrimination. They feel that Australia is very much behind those countries that Australia tends to benchmark itself against.
It bothers them that they have the same obligations as all other citizens but are not entitled to the same benefits.
In November 2000, John's partner died suddenly. At the time of his death he had a $100,000 life insurance policy.
John was named on the policy as the beneficiary. He was also named as the beneficiary to his partner's will and residual estate including superannuation
John had to prove financial dependency to have the money paid to him; but it all went to the estate not to John. Had they been heterosexual some of the money would have been released to John, not to the estate.
The estate had a tax bill of $32,000. It would have been as little as $10,000 had John been heterosexual.
He looks forward to the day when all couples are treated equally before the law.
In 2004 Penny graduated from University and accepted a graduate position in the APS as a lawyer. Within her first week Penny faced discrimination when, completing her superannuation application for the Commonwealth PSS Scheme.
In the PSS an eligible spouse only includes a person of the opposite sex. Penny was forced to explain that she could not put her partner on the form. She was forced to come out to her new colleagues.
Penny reports that her mother rather than her partner is her beneficiary.
Penny describes how there are many long terms consequences as a result of this discrimination. She states that superannuation is there for peace of mind, to ensure stability for your loved ones when you die. She cannot take this for granted.
Penny says that she believes strongly in the rule of law. Penny also believes in the adage of a 'fair go'.
Penny concludes by saying that the law must always provide for fairness. All citizens should be equal before the law and the law should treat all citizens equally.
Brian has been in the public service for more than 30 years. James has been in the public service for 11 years.
Brian and James have been together for nine years and are convinced their relationship is 'til death us do part'. Their common commitment is based on their Christian faith.
Both contribute to the PSS. They want to provide security for each other, but they cannot do this in the context of death benefits.
Brian and James believe that the government is acting directly against its own policy. The government is encouraging people to create their own pension but if Brian dies tomorrow James will be lining up at Centrelink. The present situation forces them to do the opposite to government policy.
Brian and James comment that the 2003 legislation allows the trustee of a private super fund to pay benefits to a same sex partner. However, this is still at the discretion of the fund, so even if Brian could transfer his money into a private fund James may still not get the benefits.
Brian and James argue that it would be easy to recognise same sex couples in the same way as heterosexual couples.
Tony has been with his partner for 14 years.
Tony describes the problems that they face with superannuation and access to pensions.
Tony says that he knows lots of kids who were brought up by gay parents. He describes the children as wonderful and well-adjusted kids.
Tony describes the impact on himself and his partner of the changes made to Australian Defence Force policies. The only time he has ever thanked a politician was when the ban on gay and lesbian people in the armed forces was lifted.
Tony is proud to be an Australian. He believes that Australia will become a more tolerant society that believes in difference.
Heidi describes how she and her partner Mary Beth are ready to plan a family. However, since they cannot both be the biological parents of their children they need to plan a way to protect their children and to acknowledge their parentage.
Heidi discusses the impact on children when the law fails to recognise their relationship with both of their parents and their parents' relationship with each other.
She states that the Convention on the Rights of the Child (CRC) emphasises the primary role of parents. It also covers the role of the State, which is to support parents in upholding their role.
Heidi describes how the law determines who a child's parents are. She also discusses how co-parents can be recognised.
Heidi concludes her presentation by commenting on issues of parental separation and how this impacts on children. This is especially important in regards to the children of same-sex couples.
Liz accompanied Heidi to talk about her experiences as a same-sex parent. She covers issues such as the recognition of parents, Medicare, superannuation and the impact of discrimination on her family.
Sarah also accompanied Heidi and provided a personal story. Sarah comments on birth certificates in the ACT, where both same-sex parents can be noted. She also talks about superannuation, life insurance, civil unions and access to assisted reproductive technology.
Heidi Yates and Llewellyn Reynders
Heidi describes how there are two ways of recognising relationships (a) opt-in and (b) presumptive. Opt-in includes marriage, civil union or registration - it is where there is a choice. However presumptive legislation imposes obligations on couples.
Heidi comments that while presumptions provide a safety net for some people, they still need to be able to prove the relationship. Opt-in models confer immediate rights without any requirement of proof, other than the actual action of the union or marriage.
Good Process prefers the ACT civil union model.
Good Process and the ACT Government held a long process of consultation in regards to civil union in the ACT.
The Good Process consultations highlighted the importance to the queer community in Canberra of having an opt-in measure and a legally recognised document in order to establish relationship rights.
Heidi describes Good Process's arguments for civil unions. Good Process acknowledges the positive role of the ACT government as the only leaders that have shown the political will to recognise same-sex unions.
Heidi describes how people felt when the ACT Civil Unions Bill was announced and contrasts this with the feelings experienced when the Federal government overturned the Act.
The attorney provides a history of same-sex recognition in the ACT.
He describes how the ACT Government amended the Discrimination Act to include sexuality. He states that many of the amendments to ACT legislation are designed to protect against the impact of Commonwealth laws in the ACT.
The attorney provides the example of the amendments made to the Supreme Court Act so that judges in same-sex relationships get the same benefits as judges in opposite-sex relationships.
He also talks about the Land Titles Act where the definition of pensioner was changed to deem a same-sex partner as a pensioner.
The attorney states that the ACT Government believes that there is no basis for discrimination on the basis of sexuality.
The attorney then goes on to discuss the ACT Civil Unions Act, which was introduced and then disallowed by the Federal Government.
He explains that the ACT Government is currently re-examining and amending this legislation. They will announce the revised legislation in due course. In the amended legislation the ACT Government will consider the use of language. It will provide certainty that a civil partnership will not be treated in the same way as marriage under ACT law but will be considered equivalent to a 'domestic partnership'. The ACT Government acknowledges that this will not achieve substantive equality in the same way of the Civil Unions Act.
Simon comments that all people are entitled to equality and respect under the law. All people should enjoy the same functional and legal equality regardless of their sex and sexual orientation. He argues that this won't be addressed properly until federal law changes.
Simon concludes by discussing the differences between ACT Civil Unions Act and the Tasmanian Relationships Act.
Amy Kilpatrick, ACT Convenor and Andrew Thomas
Amy provides a personal story and explains her devastation at the repeal of the Civil Union Act.
Amy argues that when you have criteria based system of proving a relationship, there is a risk of exclusion. For example in the ACT you must reside in the ACT for a certain period of time or have joint financial commitment in the ACT. So there are some gaps in the ACT legislation as a result of this.
Amy states that the ACT Human Rights Act should be the basis on which all the laws are assessed in terms of equality and fairness.
Amy asks HREOC to ensure that they don't ignore the State and Territory legislation. She believes that amending federal law is not enough.
She then provides a response from the Australian lawyers for Human Rights (ALHR) to the HREOC Discussion Paper Two. She states that both statutory declarations and registration should be available for proving the de facto relationship.
She says that the ALHR has a strong preference for including same-sex couples in the definition of de facto relationships. Interdependence does not give full recognition to the relationship.
Jenny Earle, Human Rights and Discrimination Law Policy Officer
Julie Whitmore, Senior Conciliator
Jenny discusses relationship recognition and the ACT Civil Unions Act.
Jenny comments that the ACT prohibits discrimination on the basis of sexuality however this does not apply to Commonwealth laws and legislation.
She describes how the ACT Human Rights Office has received a small number of sexuality complaints - about 5% of all complaints. There were 12 complaints regarding sexuality and three complaints regarding vilification due to sexuality, in their last reporting period (2005/06).
The ACT Human Rights Office is concerned that there is no federal legislation that protects people from discrimination on the grounds of sexuality or sexual orientation. Nor is there federal protection against vilification due to sexuality.
Jenny describes a court case in the United Kingdom - Wilkinson versus Kitzinger and Ors [2006] EWHC 2022 (England and Wales High Court (Family Division Decisions). This case is in regards to two women who were married under Canadian law and then sought recognition of their marriage in the United Kingdom. She believes that the judge in this case shows their own ignorance of social trends in this area.
Jenny argues that the relationships of same-sex couples have all the features of heterosexual marriages except for the procreation of children. However many children are being born to lesbian couples and many heterosexual marriages remain childless.
Jenny also describes differences between lesbian and gay couples.
Julie Whitmore accompanied Jenny and described her personal experiences. Julie talks about the ACT and relationship recognition, access to assisted reproductive technology and superannuation.
John Coleman, Federal Secretary
John states that this Inquiry is of significant importance to his organisation as they represent the retirement interests of former Commonwealth and Territory public servants - about 128,000 people. Approximately 70 per cent of these would have a partner.
He comments that the discrimination people face in Commonwealth superannuation schemes is based on the definition of spouse.
He describes how research shows that broadly five to seven per cent of the population is gay or lesbian. If the average is taken as five per cent then 6,400 people are affected. If those five per cent are in a same-sex relationship this amounts to a significant number - 11,000 Australians affected.
John says that there has been progress with superannuation.
John describes the differences and similarities between private and Commonwealth superannuation funds. He comments that the use of interdependency is already applied to heterosexual couples in regards to the payment of reversionary benefits.
John states that there are some technical and budgetary considerations to changing Commonwealth legislation. The technical aspect would be adjusting the definition of spouse. He comments that it is a myth that there is a cost issue for the government in regards to unfunded superannuation liabilities.
John believes that the discrimination affects people in two ways. It affects people after death. However it also affects couples while they are together and living with the knowledge that their superannuation benefits will not be passed on to their partner. For most people superannuation is the bulk of their retirement savings.