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Same-Sex: Hearing: Melbourne

National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits

WRITTEN AND AUDIO NOTES


Melbourne Hearing, 27 September 2006

1. Grame Innes, Human Rights Commissioner, Human Rights and Equal Opportunity Commission - Opening Speech

2. Eilis Hughes (Personal Story)

Eilis Hughes talks about how she wants to have children with her partner. She emphasises that she doesn't want her family to be invisible to the society that she lives in. She believes that there are two aspects to acceptance: acceptance by government and acceptance by society as a whole, but that the government needs to lead by example.

Eilis says she is lucky because her employment contract contains a provision for non-birth parental leave, and her workplace is an accepting environment which recognises her family. However, she notes that if her employment contract did not already contain such provisions, she would not have had the confidence to negotiate for non-birth parental leave through an AWA.

Her partner on the other hand, works for a small Christian family business. She does not feel comfortable to ask for non-birth parent leave, and she would be unlikely to receive it if she did ask.

Eilis notes that if she were to have a baby, she would receive the single parent pension from Centrelink. She is concerned that the Government will redress this incongruence in the laws without addressing any of the other more substantive discriminatory laws. She says that she would rather not receive the pension if she could be visible and equal every day.

Eilis states that she just wants the same rights as her straight friends; she wants the whole concept of her 'coming out' to be a moot point.

3.Doug Pollard (Personal Story)

Doug Pollard, originally from the UK, talks about the difficulty he and his partner (a US citizen) faced in establishing that they were in an 'interdependent' relationship for the purposes of attaining Australian visas.

Doug emphasises heterosexual married couples only need one piece of paper to prove their relationship, but there is no simple way to prove the existence of same-sex relationships.

Doug says that to achieve 'interdependent' status in the eyes of the Department of Immigration, it took a blizzard of paper including bank card statements and phone records. He talks about the difficulty that arises when members of a couple have to live separately for a period of time. In that case you need to provide sworn statements from family and friends and this can be difficult when some people are not 'out' to their family and friends.

Doug says that even after going through all of that, they still have no rights for superannuation, they can't split their income, they receive no spousal benefits from employers, and they end up paying more for everything and get less. He says they are not asking for special treatment, merely equal treatment.

Doug concludes by saying that the simplest way to support them is to recognise them for what they are - a middle aged, married, hardworking couple.

4.Grant Goodwin (Personal Story)

Grant talks about how the inherent dignity and value of people in same-sex relationships are not recognised. He says that relationships are pivotal in people's lives, and when they are not recognised there can be serious emotional side effects.

Grant argues that the laws in their current form are very dangerous, especially as gay and lesbian youth are between 3 and 14 times more likely to commit suicide than their heterosexual counterparts.

Grant says that as a child growing up in a democracy, he was astonished to find out that gay and lesbian people were not allowed to marry.

Grant concludes by stating that equal rights means the same rights that everyone else has. People in same-sex relationships need recognition and acceptance, not just financial and workplace benefits.

5. Nan McGregor (Personal Story)

Nan is a member of the board of The ALSO Foundation (Alternative Life Styles Organisation). She joined the board after her son came out, and she was granted life membership in 2002. She is also an ex-President of PFLAG (Parents and Friends of Lesbians and Gays).

Nan describes herself as 'an elderly lady from the suburbs', and says that she knows that her child is treated differently. She quotes Paulette Goodman (a former President of PFLAG Inc in the USA), who said: 'I don't think there can be a more powerful advocate than a parent.'

Nan says that she is an honorary mum for a range of gay people. Her gay son is one of four children. She makes comparisons between her son's commitment ceremony and her daughter's marriage. Their vows and promises were almost identical - to love and honour each other, and to grow old together. Nan says that the greatest inequality of all is the failure to recognise loving relationships.

Nan states that her son and his partner would not have full access to the Family Court should their relationship break down. She says that her son earns more than his partner, but that her son is unable to claim his partner as a dependent.

She says that in her mind at least, her son and his partner are a married couple. However, they are excluded in so many ways. They are downgraded to being second class. She says this treatment flies in the face of fair go for all.

Nan says that she doesn't want anything special for her son and his partner - just equal rights - the same equality that Howard's children enjoy, and the same equality that Costello's children enjoy.

6. Australian Chamber of Commerce and Industry (ACCI)

Peter Anderson, Director - Workplace Policy

ACCI provide input from the private sector employer community. ACCI says that they are supportive of equal opportunity and inclusive employment practices.

ACCI argue that government should not impose mandatory obligations on employers before government itself deals with the issue of same-sex relationship recognition in a conclusive way.

However ACCI does encourage employers to develop non-discriminatory entitlements through Australian Workplace Agreements (AWAs). They also suggest that employers need to identify the need for parental leave where it arises.

ACCI notes that there are a number of ways in which formal recognition of rights can occur:

  1. Amend legislation - however this shouldn't occur before government has recognised gay relationships.
  2. Make informal arrangements - through human resources practice or policy or individual arrangements.
  3. AWAs

ACCI argues that there needs to be a system of both individual engagements and collective engagements. They also argue that there are many issues of a very personal/private character with regards to same-sex relationships, and people may not want to bring those issues into a collective negotiation. ACCI argues that the current structure of employment laws allows for this flexibility.

ACCI conclude by saying that there are a range of areas where they think business can work with government to address discrimination. The workplace environment largely regulates where people can exercise those rights. They say there is scope for industry to be part of a general community education and information programs.

7. Miranda Steward, Senior Lecturer, University of Melbourne Law School

Miranda Stewart, a legal academic at the University of Melbourne, opens by saying that superannuation law is currently in a state of flux. She notes ongoing discrimination in federal income tax law, superannuation law and fringe benefits tax law.

Ms Stewart says that the core aspect of the discrimination in these laws lies in the definition of 'spouse'. She notes that in the early 1990s, the definition of spouse was expanded to cover de facto opposite-sex couples, and that definition of spouse was picked up in a range of concessions. Ms Stewart's first recommendation is that definition of spouse be altered to include same-sex couples.

In respect of superannuation, Ms Stewart says that the federal government is considering major changes that will impact on the provision of death benefits made to dependants. She says that where there are non-dependants, they will be taxed higher on death benefits, so it is more important than ever to ensure that same sex couples are considered as 'dependants'. She notes that same-sex couples can either establish financial dependence, or they can establish that they are interdependent, however the threshold for proving either of those situations is much higher than for heterosexual couples.

Ms Stewart's second recommendation is about interdependency relationships. She argues that the federal government would say that it has solved discrimination in the area of superannuation by introducing the 'interdependent' category. However, the requirements for establishing interdependency are much higher than those for a spouse. In her view, the concept of interdependency in superannuation is intended to cover other kinds of relationships, not couple relationships.

Ms Stewart's third recommendation concerns children. She argues that children are an important part of same-sex families, and they are affected by a complex combination of federal and state law. She says that discrimination affecting children needs to be looked at in detail, and not always linked to the couple situation of parents.

Ms Stewart answers questions about Australian Tax Office Interpretive Decisions, the dependant spouse tax offset, the Family Tax Benefits A and B, the childcare tax offset, Family Court parenting orders and the definition of child in tax legislation.

8. Australian Council of Trade Unions

Cath Bowtell, Industrial Officer

The ACTU focuses on two key issues - parental and carer's leave. They also make some comments on the submission from the Australian Chamber for Commerce and Industry (ACCI).

The ACTU believe that carer's and parental leave are about family relationships. Consideration should be given to the purpose of these two types of leave so that they are responsive to the needs of diverse types of families.

The ACTU argue that access to parental and carer's leave should be child centred not parent-centred. In other words, the person who is going to care for a child should have access to these types of leave. For example, in the UK carer's leave is not limited to family members. It is available to people who are responsible for the care of someone else, for example a neighbour. It's the dependency of the person more than the relationship that matters.

The ACTU comment that people should not have to declare that they are in a same-sex relationship in order to access compassionate leave.

The ACTU also talk about definitions of family. An agreement had been made to review this definition in relation to Awards. However, since parental and carer's leave is now solely the province of legislation and so beyond their capacity to influence.

The ACTU argue against ACCI's proposal that AWAs solve the problem for gay and lesbian individuals in a workplace where the majority of workers do not support homosexuality. ACTU draw an analogy with a hypothetical workplace where the majority of the workforce is male and the workplace agreement states that female workers should not get less pay than the men. ACTU argue that it would be absurd to address this problem by making individual agreements with the female workers. This could not happen under the current law and should not be the case for people in same-sex relationships.

9. Human Rights Law Resource Centre

Philip Lynch, Director and Principal Solicitor

The Human Rights Law Resource Centre (HRLRC) focus on three key issues:

  • Right to equality and the right to freedom from discrimination
  • Right to health and the highest standard of living
  • Rights of children

The HRLRC believes that the Federal government has an obligation to respect the obligations under international human rights agreements. The obligation includes protecting people from human rights abuse and ensuring that Australia's legislation is non discriminatory. Australia also has an obligation to take special measures where there are groups that are vulnerable to discrimination and human rights violations, including people in same-sex relationships.

The HRLRC provide an overview of the application of various international covenants and agreements including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Regarding the right to health the HRLRC comment that the UN Special Rapporteur on the Right to Health, has talked about access, adequacy and availability of health care. Matters that increase health care spending thresholds and reduce adequacy and access would breach this right. For example, same-sex couples having to meet the Medicare Safety Net independently rather than as a couple may breach the right to health.

The HRLRC believe that under the Convention on the Rights of the Child (CRC), discrimination against a parent can be linked to discrimination against the child. The HRLRC also comment that discrimination against parents in regards to access to the Medicare Safety Net may breach other aspects of the CRC. For example, it would impact on the capacity of parents or carers to provide care to their child.

The HRLRC note that some federal legislation has been amended so that entitlements that are available to de facto relationships are available to people same-sex relationships. This is more in line with human rights law.

HRLRC mention that the provision relating to the right to marry in international human rights law is the only provision that is gender specific (ie a man and a woman).

The HRLRC conclude by providing an overview of the Victorian Charter of Human Rights and how this may be applied to existing and new legislation. The HRLRC believe that Victoria is likely to follow the UK approach regarding the interpretation of laws relating to same-sex couples. For example, in the UK the definition of husband and wife in the tenancy legislation was interpreted to mean the couple lived together "as if husband and wife".