Complaints

Same-Sex: Same Entitlements: Chapter 2

Same-Sex: Same Entitlements Report

Chapter 2. Methodology

2.1 What

is this chapter about?

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

questions:

  • What are the Inquiry’s Terms of

    Reference?

  • What discussion and research papers did the Inquiry

    release?

  • How did the Inquiry gather written

    submissions?

  • How else did the Inquiry hear community

    views?

  • What information did the federal government provide to

    the Inquiry?

  • What are the Inquiry’s next

    steps?

2.2 What

are the Inquiry’s Terms of Reference?

On 3 April 2006, the Inquiry was launched with the

following Terms of Reference:

  1. 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

    on:

    1. 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

    2. equality of opportunity and treatment in employment

      or occupation for people who are, or have been, a member of a same-sex

      couple.

  2. The Inquiry’s goals are

    to:

    1. 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;

    2. 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

      couple;

    3. 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;

    4. 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.

  3. 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

    to:

    1. protect and promote the equal

      enjoyment of human rights;

    2. protect and promote equality of opportunity and

      treatment in employment; and

    3. 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.

  4. 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.

2.3 What

discussion and research papers did the Inquiry release?

The Inquiry released several discussion papers as a

way to encourage community responses and elicit further information from experts

in the field.

2.3.1 Discussion

Paper I

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

research.

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).

The paper

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

Submissions.

Discussion Paper I is available on

the Inquiry website at http://www.humanrights.gov.au/samesex/.

2.3.2 Preliminary

List of Legislation

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.

The

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/.

2.3.3 Detailed

Research Paper

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

website at
http://www.humanrights.gov.au/samesex/.

2.3.4 Discussion

Paper II

Discussion Paper II aimed to provide a short summary

of the areas of discrimination in federal law, according to the Inquiry’s

updated research.

The Discussion Paper is

structured in a similar way to the Research Paper by Professor Millbank, so

readers can cross-reference between them.

The

Inquiry used Discussion Paper II to seek further input from community groups,

government and individuals.

Discussion Paper

II is available on the Inquiry website

at
http://www.humanrights.gov.au/samesex/.

2.4 How

did the Inquiry gather written submissions?

The Inquiry made a substantial effort to ensure that

all interested individuals and organisations were able to contribute their

views.

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

laws.

There were two phases to the submission

process, as described below.

2.4.1 First

Round of Submissions

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

discretion.

The Inquiry received submissions

from 389 individuals and organisations as a result of this call for

submissions.

Submissions were numbered as they

were received.

Copies of the submissions are

available on the Inquiry website

at:
http://www.humanrights.gov.au/samesex/submissions.html.

2.4.2 Second

Round of Submissions

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

submissions.

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:

http://www.humanrights.gov.au/samesex/submissions.html.

2.4.3 Who

wrote the submissions received by the Inquiry?

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

    couples

  • peak bodies
  • religious organisations
  • state and territory government agencies
  • state equal opportunity commissions
  • unions
  • universities and academics

2.4.4 How

did the Inquiry use the submissions?

The submissions have been a vital resource to the

Inquiry.

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

Inquiry.

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.

2.5 How

else did the Inquiry hear community views?

The

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.

The

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.

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.

2.5.1 How

did the Inquiry run the public hearings?

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

    research

  • compare legislation relating to same-sex

    entitlements

  • hear real life examples of the impact of same-sex

    discrimination

  • learn about further research useful to the

    Inquiry.

The Inquiry is grateful to

all those who contributed their time, expertise and experiences to the hearing

process.

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

tool.

a) When

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
Canberra 20 October

2006

The formal hearings were conducted either

by the President of HREOC or the Human Rights Commissioner, assisted by Inquiry

staff.

(b) Who

appeared at the public hearings?

Overall, 32 organisations and 44 individuals appeared

at the public hearings.

Organisations that

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

unions.

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

parent groups.

A list of witnesses who appeared

at the hearings can be found in Appendix 4 to this report.

(c) Where

can you find records of the public hearings?

Audio and written notes from the hearings are

available on the Inquiry website at

http://www.humanrights.gov.au/samesex/hearings.html.

2.5.2 How

did the Inquiry run the community forums?

The

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

family.

(a) When

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

metropolitan areas.

Overall 488 participants

attended the community forums. Their ages ranged from the late teens to the late

seventies.

Appendix 5 to this report provides

details on where and when the various forums took place and how many people

attended each of them.

(b) How

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

staff.

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.

(c) What

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

discrimination.

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.

The Inquiry

appreciates the frankness of the participants and their willingness to share

personal aspects of their lives. At times the stories were deeply emotional.

(d) What

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

highly appreciated.

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.

(e) Where

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

http://www.humanrights.gov.au/samesex/hearings.html.

2.6 What

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

factual information.

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
  • AusAID
  • Australian Public Service Commission
  • Defence Housing Authority
  • Department of Defence
  • Department of Families, Community Services and Indigenous

    Affairs

  • Department of Finance and Administration
  • Department of Foreign Affairs and Trade
  • Department of Health and Ageing
  • Department of Human