SAME-SEX: SAME ENTITLEMENTS BILL 2007
Opening Statement of Graeme Innes AM, Human Rights Commissioner of the Human Rights and Equal Opportunity Commission to the Ad Hoc Committee
13 September 2007
Human Rights and Equal
Opportunity Commission
Level 8, 133
Castlereagh St
GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600
As this Committee knows well, in April 2006 the Human Rights and Equal
Opportunity Commission launched the Same-Sex: Same
Entitlements National Inquiry. Since that time we have travelled around
Australia to hear, first hand, about the impact of discriminatory laws on
same-sex couples and their children. We produced two discussion papers and
received 680 written submissions from across Australia. And our final report was
tabled in Parliament on 21 June 2007.
Our Inquiry put federal laws under
the human rights microscope and we found that 58 federal laws breach the right
to be protected from discrimination on the grounds of sexual orientation.
The discrimination against same-sex couples is there on the statute
books in black and white. And the discrimination exists around basic issues of
employment, workers’ compensation, tax, social security, veterans’
entitlements, health care, superannuation, aged care and migration. I am still
incredulous that there could be such blatant and widespread discrimination
against an entire sector of our community in such fundamental areas of
life.
Let me give you one example. One of the minimum conditions of
employment protected under the federal WorkChoices scheme is personal or
carer’s leave. This protects a worker’s right to take leave to care
for or grieve for ‘immediate family’ or a ‘member of his or
her household’. However, these leave entitlements are not protected for
couples in same-sex relationships in the same way as they are for couples in
opposite-sex relationships. This is because a same-sex couple does not
necessarily fit into the relevant definitions.
As one couple told
us:
[O]ne of us had to have surgery in 2004, and the other needed to take some time off work to provide post-operative care. This leave could not be taken as family carer leave, as would be the case for an opposite sex partner.
This unequal protection in the workplace extends to parental
leave, and a whole range of other entitlements as well.
Unfortunately,
the discrimination doesn’t stop at same-sex couples. Of the estimated
20,000 plus same-sex couples in Australia - and the recent census suggests the
figure is actually closer to 50, 000 couples - approximately 20% of lesbian
couples, and 5% of gay male couples, are raising children.
Federal laws,
and some state and territory laws, fail to recognise both same-sex parents as
genuine parents. The consequence is that same-sex couples are frequently denied
access to entitlements which are intended to help parents financially support
their children. And when you deny financial benefits to same-sex parents, you
inevitably sacrifice the best interests of the children being raised by that
couple.
As one person said to us:
If benefits to couples are designed to promote the interests of children, then how can one possibly justify withholding those benefits from some children for no other reason than that their parents are both of the same gender?
The only good thing about the blatant nature of the
discrimination against same-sex couples is that it is easily fixed. Since the
discrimination is directly attributable to the way the laws define who qualifies
as a person’s partner; the solution is to amend those definitions so that
a same-sex partner is included.
The Same-Sex: Same Entitlements
Bill appears to have substantially adopted our recommendations insofar as
they relate to including same-sex couples in the definition of a ‘de facto
relationship’. We commend the Bill to this committee for that
reason.
There is still some way to go before same-sex parents and their
children are recognised with equality. As our report discusses, addressing the
discrimination against children of same-sex couples involves amendment of the
federal Family Law Act, federal financial laws and some state and territory
laws.
The Same-Sex: Same Entitlements Bill makes a start to
amending the Family Law Act regarding parenting presumptions for lesbian
couples. The Bill also seeks to amend the definition of
‘step-parent’ in some legislation. But there still needs to be
changes to state and territory laws regarding parenting presumptions and
adoption. And there needs to be greater clarity in federal financial laws
regarding the status of parenting presumptions. We understand that it may take a
bit more time to achieve these goals given the need for coordination between
state, territory and federal jurisdictions.
Before I answer any
questions you may have, I just want to say that over the past year I have been
incredibly moved by those people in the gay and lesbian community who have made
it very clear to me that there is only one thing that they want: to be treated
equally; no more and no less than any other Australian. Just equal.
The
legislation listed in our report fails the litmus test which all Australians
apply in the schoolyard, the workplace and the sports field - the fair go test.
As 71 per cent of Australians agreed in Get Up’s recent Galaxy poll, to
treat people differently simply because of who they love is just not fair.
This Same-Sex: Same Entitlements Bill goes a substantial way
towards making Australian law fairer to people in same-sex relationships. I
again commend the Bill to this Committee for that reason.
Thank you. I would be pleased to answer any questions you may have.
