Same-Sex: Same Entitlements Report
Chapter 2. Methodology
- 2.1 What is this chapter about?
- 2.2 What are the Inquiry’s Terms of Reference?
- 2.3 What discussion and research papers did the Inquiry release?
- 2.4 How did the Inquiry gather written submissions?
- 2.5 How else did the Inquiry hear community views?
- 2.6 What information did the federal government provide to the Inquiry?
- 2.7 What are the Inquiry’s next steps?
This chapter describes how the Inquiry gathered
information and community views about discrimination against same-sex couples
and their children. In particular, the chapter addresses the following
- What are the Inquiry’s Terms of
- What discussion and research papers did the Inquiry
- How did the Inquiry gather written
- How else did the Inquiry hear community
- What information did the federal government provide to
- What are the Inquiry’s next
On 3 April 2006, the Inquiry was launched with the
following Terms of Reference:
- The President, Mr John William von Doussa QC, and the
Human Rights Commissioner, Mr Graeme Gordon Innes AM, will conduct an inquiry
(the Inquiry), on behalf of the Human Rights and Equal Opportunity Commission,
into laws regarding financial and employment-related entitlements and benefits
to consider the impact of those laws
- the equal enjoyment of human
rights by people who are, or have been, a member of a same-sex couple and any
children of a same-sex couple; and
- equality of opportunity and treatment in employment
or occupation for people who are, or have been, a member of a same-sex
- the equal enjoyment of human
- The Inquiry’s goals are
- ascertain whether relevant
Commonwealth laws may be or are inconsistent with or contrary to any human right
of people who are, or have been, a member of a same-sex couple and any children
of a same-sex couple;
- ascertain whether relevant Commonwealth laws may have
the effect of nullifying or impairing equality of opportunity and treatment in
employment or occupation of people who are, or have been, a member of a same-sex
- consider what effect relevant State and Territory
laws have on the human rights of people who are, or have been, a member of a
same-sex couple and any children of a same-sex couple;
- consider what effect relevant State and Territory laws
have on the equality of opportunity and treatment in employment or occupation of
people who are, or have been, a member of a same-sex couple.
- ascertain whether relevant
- The President and the Human Rights Commissioner will
report, on behalf of the Commission, to the Minister the results of the Inquiry.
That report may include recommendations as to action that should be taken by the
Commonwealth and/or laws that should be made by the Parliament, in order
- protect and promote the equal
enjoyment of human rights;
- protect and promote equality of opportunity and
treatment in employment; and
- ensure that Australia is in compliance with the
provisions of the International Covenant on Civil and Political Rights,
the Convention on the Rights of the Child and the Discrimination
(Employment and Occupation) Convention 1958.
- protect and promote the equal
- For the purposes of the Inquiry, ‘laws regarding
financial and employment-related entitlements and benefits’ shall be taken
to include, but not be limited to, laws relating to taxation, social security,
Medicare, concessions available under the Pharmaceutical Benefits Scheme,
conditions of employment such as leave entitlements, compensation for workplace
injuries, pensions, retirement benefits, superannuation, benefits payable to
veterans of the Australian armed forces and intestacy.
The Inquiry released several discussion papers as a
way to encourage community responses and elicit further information from experts
in the field.
When the Inquiry was launched, the Human Rights and
Equal Opportunity Commission (HREOC) released Discussion Paper I. The paper
presented the Inquiry’s initial research into the area of discrimination
against same-sex couples. It set the background for the Inquiry’s ongoing
Discussion Paper I was designed to
focus attention on possible areas of financial and work-related discrimination
in Commonwealth, and some state and territory, laws.
The paper provided some background information
on the Inquiry. It outlined the human rights protections that are relevant to
people in same-sex relationships and their children under the International
Convenant on Civil and Political Rights (ICCPR), the Convention on the
Rights of the Child (CRC) and the Discrimination (Employment and
Occupation) Convention (ILO 111).
covered the following issues:
- workplace leave and other entitlements
- social security benefits
- tax concessions
- health concessions
- superannuation entitlements
- workers’ compensation under Comcare
- pensions and compensation for veterans
- travel entitlements for parliamentarians
- judicial pensions.
It also included the Terms of
Reference for the Inquiry and a Guide for
Discussion Paper I is available on
the Inquiry website at http://www.humanrights.gov.au/samesex/.
The Inquiry commissioned independent research
to identify a Preliminary List of Commonwealth laws that discriminate against
same-sex couples. The research was conducted by Professor Jenni Millbank from
the University of Sydney.
The Preliminary List
identified more than 60 federal laws which currently discriminate against
same-sex couples and their children.
Inquiry published the Preliminary List in September 2006 in order to prompt
further consideration and discussion of discrimination in federal legislation.
It also requested comments, additions or amendments to the list.
The Preliminary List is available on the
Inquiry website at http://www.humanrights.gov.au/samesex/.
In addition to a list of legislation, the Inquiry
commissioned Professor Millbank to conduct more detailed research on federal
laws that discriminate against same-sex couples and their children.
The Inquiry published the results as a
Research Paper on 28 September 2006. The Research Paper, called Areas of
Federal Law that Exclude Same-Sex Couples and their Children, examined a
wide range of federal statutes and regulations.
The views expressed in the Research Paper were
those of Professor Millbank and not those of the Inquiry. However, the Inquiry
has used the research to develop its own findings and recommendations.
The Research Paper is available on the Inquiry
Discussion Paper II aimed to provide a short summary
of the areas of discrimination in federal law, according to the Inquiry’s
The Discussion Paper is
structured in a similar way to the Research Paper by Professor Millbank, so
readers can cross-reference between them.
Inquiry used Discussion Paper II to seek further input from community groups,
government and individuals.
II is available on the Inquiry website
The Inquiry made a substantial effort to ensure that
all interested individuals and organisations were able to contribute their
The Inquiry invited submissions through
the media, the internet and through a broad range of email lists. Submissions
could be made in any format, including email, floppy disk, hard copy, audio
tape, video tape, CD or DVD.
In total, the
Inquiry received submissions from 680 organisations and individuals. A full list
of submissions can be found in Appendix 3 to this report. Copies of many of the
submissions can be found on the Inquiry website at: http://www.humanrights.gov.au/samesex/submissions.html.
The Inquiry is extremely grateful to all those
who made submissions. Members of the public as well as organisations devoted
considerable time, energy and expertise to this task. We are especially thankful
to those individuals who were willing to share their personal experiences of
discrimination under current federal, state and territory
There were two phases to the submission
process, as described below.
The Inquiry called for public submissions on 3 April
2006, with a deadline of 2 June 2006. That date was extended to 16 June 2006 in
response to a number of requests for further time. The Inquiry accepted
submissions after that date at its
The Inquiry received submissions
from 389 individuals and organisations as a result of this call for
Submissions were numbered as they
Copies of the submissions are
available on the Inquiry website
The deadline for submissions in response to the
Discussion Paper II and the Research Paper was 3 November 2006. The Inquiry
accepted submissions after this date at its discretion.
The Inquiry received submissions from an
additional 291 individuals and organisations in this second round of
Due to resource constraints in
this second round of submissions, only those from organisations were placed on
the Inquiry website. However, a list of the names of individuals who made
submissions is available at:
Submissions came from a wide range of organisations
and individuals including:
- employment bodies
- gay, lesbian, bisexual, transgender and intersex
individuals and couples
- human rights, advocacy and legal bodies
- members of the public
- non-government organisations
- organisations representing gay, lesbian, bisexual,
transgender and/or intersex people
- parents, friends or family members of same-sex
- peak bodies
- religious organisations
- state and territory government agencies
- state equal opportunity commissions
- universities and academics
The submissions have been a vital resource to the
They have helped to highlight the
impact of discriminatory laws on same-sex couples, their children and their
families. They identify a number of laws and issues which were previously
unknown to the Inquiry. They provide substance to the text of this report and
guidance to the recommendations made by the
A large number of submissions made
arguments for and against changing the law to allow marriage or civil union for
same-sex couples. The debate about the most appropriate form of relationship
recognition for same-sex couples is not strictly within the Inquiry’s
Terms of Reference. However, the Inquiry has considered the role that
relationship recognition plays in accessing financial and work-related benefits
in Chapter 4 on Recognising Relationships.
Some of the submissions and consultations
raised other issues which were not part of the Inquiry’s Terms of
Reference. Where possible, these issues are discussed at the end of each
relevant chapter. Chapter 17 discusses general issues of homophobia and gender
identity. However, the Inquiry has not made findings or recommendations about
issues outside the Inquiry’s Terms of Reference.
Inquiry held seven formal public hearings and 18 community forums around
Australia between 26 July 2006 and 16 November 2006.
The Inquiry also held a number of meetings
with specific groups and individuals, including gay parent groups,
parliamentarians and retirement groups.
Inquiry contacted key groups and individuals in Sydney, Darwin and Townsville to
try and hold specific meetings with gay and lesbian Aboriginal and Torres Strait
Islander people however, unfortunately no meetings could be arranged. One person
explained that this was due to cultural taboos and discrimination faced by
same-sex attracted Aboriginal people both within their own community and from
the wider community. This made it difficult for gay and lesbian Aboriginal
people to potentially ‘out’ themselves by meeting with
representatives from the Inquiry.
also made a number of attempts to meet with gay and lesbian people from
Culturally and Linguistically Diverse (CALD) backgrounds. A broadcast email to
CALD groups in Melbourne resulted in only one reply from one CALD group. A
specific CALD forum was also arranged in Sydney. Unfortunately the forum had to
be cancelled due to a lack of response. However a number of submissions were
received from gay and lesbian CALD groups and individuals.
The primary purpose of the public hearings was to
allow the Inquiry to further explore information contained in written
submissions. They also provided an opportunity to:
- clarify issues raised in submissions and Inquiry
- compare legislation relating to same-sex
- hear real life examples of the impact of same-sex
- learn about further research useful to the
The Inquiry is grateful to
all those who contributed their time, expertise and experiences to the hearing
A great deal of media interest was
generated by the public hearings. Many of the stories and experiences explained
during the hearings were recorded in the print media, on radio and on
television. This provided the general community with an opportunity to hear
about the impact of discrimination on people’s lives first hand. Thus
making the hearings a useful community education and public awareness-raising
and where did the public hearings take place?
Public hearings were held in:
|Sydney||26 July 2006|
|Perth||9 August 2006|
|Adelaide||28 August 2006|
|Hobart||25 September 2006|
|Melbourne||26-27 September 2006|
|Brisbane||11 October 2006|
The formal hearings were conducted either
by the President of HREOC or the Human Rights Commissioner, assisted by Inquiry
appeared at the public hearings?
Overall, 32 organisations and 44 individuals appeared
at the public hearings.
attended the hearings included the state and territory based equal opportunity
commissions, gay and lesbian lobby groups, legal and human rights groups,
non-government organisations, universities, employer bodies and
Individuals with a diverse range of
experiences appeared at the hearings. They included people presenting their own
independent or university research, parliamentarians and ex-parliamentarians and
A list of witnesses who appeared
at the hearings can be found in Appendix 4 to this report.
can you find records of the public hearings?
Audio and written notes from the hearings are
available on the Inquiry website at
main purpose of the community forums was to listen to and gather people’s
stories of discrimination.
The Inquiry has
used the information gathered in the community forums to show how same-sex
couples experience discrimination and how this impacts on their
and where did the community forums take place?
A concerted effort was made to engage with the rural
and regional same-sex attracted community. People living in rural and regional
areas often have different issues or experiences to those people living in
Overall 488 participants
attended the community forums. Their ages ranged from the late teens to the late
Appendix 5 to this report provides
details on where and when the various forums took place and how many people
attended each of them.
did the Inquiry conduct the community forums?
The community forums were facilitated by either the
President of the Commission, the Human Rights Commissioner or Inquiry
Prior to each community forum
participants were sent a background briefing document that summarised the
purpose of the Inquiry.
Whenever possible the
community forum was opened by a number of arranged speakers to ‘break the
ice’. These speakers discussed their submission to the Inquiry and spoke
about their personal experiences of the impact of discrimination on their lives.
The forum was then opened to the floor. Many people spoke about the impact of
financial and work-related discrimination on their lives and the lives of their
partners, families and children. Participants also asked questions of Inquiry
staff about specific aspects of the Inquiry.
were some of the themes covered in the community forums?
Issues covered at the forums included ageing, Medicare
and health issues, social security, superannuation, tax, medical consent, powers
of attorney, adoption and parental recognition, veterans’ affairs,
employment and access to leave from work, and general issues of
As with the written
submissions, marriage or relationship recognition was a key issue for same-sex
couples at these forums. The Commissioner, President or Inquiry staff stated at
the start of each forum that the goal of the Inquiry was to focus public
attention on financial and work-related discrimination over formal relationship
recognition. However, the Inquiry acknowledges the importance of relationship
recognition to same-sex couples.
appreciates the frankness of the participants and their willingness to share
personal aspects of their lives. At times the stories were deeply emotional.
did participants think about the community forums?
Participants were provided with an evaluation form at
the end of the forum.
Overall 161 evaluation
forms were completed and returned to the Inquiry. However, not all people who
completed the forms answered all the questions.
86% of respondents rated the forums as
‘good’ or ‘excellent’.
The aspects of the community forums which
people liked included hearing about other people’s stories and listening
to the wide variety of issues that people raised. Participants also liked the
openness of the discussions and the respect given to the speakers. Respondents
also indicated that being able to have their say and the inclusive manner of the
forum was important. The facilitation skills of the Inquiry staff were also
The aspect that people
least liked about the forums was the focus on legal and financial issues over
marriage and civil union. Other things that people did not like about the forums
included: starting late, relevance of some of the stories, seating and time
given to speak.
can you find records of the community forums?
Audio (for some forums) and written notes from the
community forums are available on the Inquiry website at
information did the federal government provide to the Inquiry?
In June 2006, the federal Cabinet issued a direction
that no federal department or agency should provide a written submission to the
Inquiry. However, in July 2006 the Attorney-General indicated that the
Attorney-General’s Department would be open to accepting any requests for
In response to that
offer, the President of HREOC wrote to the Secretary of the
Attorney-General’s Department, on 23 August 2006. The letter requested
that the Attorney-General’s Department provide copies of relevant internal
policies, guidelines, instructions, directives, circulars, departmental or
ministerial instructions and departmental, ministerial or tribunal decisions
from 28 Commonwealth departments and agencies. The letter also requested
assistance from the Attorney-General’s Department to collect information
from other relevant agencies.
On 18 October
2006, the Secretary of the Attorney-General’s Department sent out a letter
to the agencies listed in the President’s letter, requesting that a
response be sent directly to HREOC by 3 November 2006.
The following agencies and departments
provided information to the Inquiry:
- Attorney-General’s Department
- Australian Public Service Commission
- Defence Housing Authority
- Department of Defence
- Department of Families, Community Services and Indigenous
- Department of Finance and Administration
- Department of Foreign Affairs and Trade
- Department of Health and Ageing
- Department of Human