Skip to main content

Same-Sex: Same Entitlements: Chapter 3

Same-Sex: Same Entitlements Report


Chapter 3. Human

Rights Protections for Same-Sex Couples and their Children

Download Chapter 3: [ PDF ] [ Word ]

3.1 What

is this chapter about?

This chapter explains how the provisions of

international human rights treaties protect same-sex couples and their children,

in the context of accessing financial and work-related

entitlements.

In particular, this chapter

focuses on the right to non-discrimination on the grounds of sexual orientation.

It also describes how the breach of that right can interfere with a range of

other basic human rights, for example, the right to social security.

The chapter also explains how discrimination

against parents on the grounds of sexual orientation can impact on the rights of

their children. In particular, discrimination against same-sex parents can

compromise the protection of the best interests of the child. It can also result

in a breach of Australia’s obligation to assist both parents in the

performance of their common responsibilities.

More specifically, this chapter addresses the

following questions:

  • Which human rights treaties are relevant to this

    Inquiry?

  • Does the right to non-discrimination protect same-sex

    couples?

  • Can discrimination against same-sex parents interfere

    with the right to protection of family?

  • Can discrimination against same-sex parents interfere

    with the rights of the child?

  • Can discrimination against same-sex parents interfere

    with the right to social security?

  • Can discrimination against same-sex couples interfere

    with the right to health?

  • How are these human rights principles applied in this

    report?

3.2 Which

human rights treaties are relevant to this Inquiry?

Australia is a party to the following major

international human rights treaties relevant to this Inquiry:

  • International Covenant on Civil and Political Rights (ICCPR)
  • Convention on the Rights of the Child (CRC)
  • International Covenant on Economic, Social and

    Cultural Rights (ICESCR)

  • International Labour Organisation Discrimination

    (Employment and Occupation) Convention 1958 (ILO

    111)

Australia has voluntarily agreed to

comply with the provisions of all of these treaties. However, a treaty only

becomes legally binding in Australia when it is directly incorporated by

domestic legislation. A range of Australian laws have sought to incorporate

aspects of the ICCPR, CRC, ILO 111 and ICESCR, but none of the treaties have

been incorporated in their entirety.

However, the

Commonwealth Parliament has enacted the Human

Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), which

empowers the Human Rights and Equal Opportunity Commission (HREOC) to examine

whether Australia is complying with its obligations under the ICCPR, the CRC and

ILO 111. HREOC also has a statutory responsibility to promote public

understanding and acceptance of human rights in

Australia.

This Inquiry examines whether

Australia’s laws relating to financial and work-related entitlements

comply with the ICCPR, the CRC and ILO 111 when applied to same-sex couples and

their children. The Inquiry also considers the impact of discriminatory laws on

the ability of same-sex couples and their children to realise their rights under

the ICESCR.

3.2.1 International

Covenant on Civil and Political Rights

The ICCPR protects the fundamental civil and political

rights of all people. The provisions of the ICCPR which are relevant to this

Inquiry are:

  • right to non-discrimination (article 2(1))
  • right to an effective remedy for a breach of human rights

    (article 2(3))

  • right to the protection of the law without discrimination

    (article 26)

  • right to privacy (article 17)
  • right to family (article 23)
  • rights of the child (article

    24).

The United Nations Human Rights

Committee (the Human Rights Committee), is responsible for monitoring compliance

with the ICCPR and providing guidance about how to interpret ICCPR rights. HREOC

also monitors Australia’s compliance with the

ICCPR.[1]

3.2.2 Convention

on the Rights of the Child

The CRC adapts the rights set out in the ICCPR and the

ICESCR to the needs of children. It also creates specific rights that recognise

children’s unique needs. The provisions of the CRC which are relevant to

this Inquiry are:

  • right to non-discrimination (article 2)
  • best interests of the child must be a primary

    consideration in all decisions about children (article 3)

  • right to know and be cared for by parents (article

    7)

  • right to identity (article 8)
  • right to privacy (article 16)
  • recognition of parents’ joint responsibilities (to

    be assisted by the state) (article 18)

  • best interests of child must be the paramount

    consideration in adoption (article 21)

  • right to the highest attainable standard of health

    (article 24)

  • right to benefit from social security (article

    26)

  • right to an adequate standard of living (article

    27).

The United Nations

Committee on the Rights of the Child (the Children’s Rights Committee), is

responsible for monitoring compliance with the CRC and providing guidance on the

interpretation of the CRC. HREOC also monitors Australia’s compliance with

the

CRC.[2]

The

CRC also recognises the special competence of the United Nations

Children’s Fund (UNICEF) to provide expert advice about the implementation

of the CRC.[3] The UNICEF Implementation Handbook for the Convention on the Rights of the Child (UNICEF Implementation Handbook) helps explain how the CRC’s

provisions should be interpreted.

3.2.3 International

Covenant on Economic, Social and Cultural Rights

The ICESCR is the main treaty dealing with the

economic, social and cultural rights of all people. Article 2(1) of the ICESCR

requires State Parties to take steps, especially legislative measures, to

achieve the progressive realisation of ICESCR rights.

While the ICESCR acknowledges that the

obligations of State Parties are subject to ‘progressive

realisation’ and available resources, the obligation of State Parties to

undertake to guarantee ICESCR rights without discrimination (article 2(2)) is of

immediate effect.[4]

The rights in ICESCR which are relevant to

this Inquiry include:

  • right to non-discrimination (article 2(2))
  • right to just and favourable conditions of work (article

    7)

  • right to social security (article 9)
  • right to protection and assistance for the family

    (article 10)

  • right to an adequate standard of living (article

    11)

  • the right to health (article

    12).

The United Nations Committee on

Economic Social and Cultural Rights (the ESCR Committee) monitors compliance

with the ICESCR and provides guidance on how countries should interpret the

ICESCR.

3.2.4 Discrimination

(Employment and Occupation) Convention (ILO 111)

The ILO 111 requires Australia to take all appropriate

steps to eliminate discrimination on a range of grounds and ensure equality of

opportunity and treatment in employment.

The

ILO 111 provides that countries can add to the list of grounds on which

discrimination is prohibited. In 1989, Australia added discrimination on the

grounds of sexual preference to that

list.[5]

Part

II, Division 4 of the HREOC Act provides for a range of functions to be

exercised by HREOC in relation to ILO 111 discrimination. Those functions

include inquiring into acts or practices that may constitute discrimination in

the workplace on the grounds of sexual

orientation.[6]

However, while HREOC is empowered to make

recommendations to remedy discrimination, including for payment of compensation,

these recommendations are not

enforceable.[7]

3.3 Does

the right to non-discrimination protect same-sex couples?

The

right to non-discrimination and the right to equality before the law are

fundamental principles of international human rights law.

Laws which have the purpose or effect of

denying same-sex couples financial benefits and entitlements available to

opposite-sex couples will be discriminatory, unless they serve a legitimate

purpose and can be justified on reasonable and objective grounds.

Many of Australia’s laws exclude

same-sex couples from financial and work-related entitlements and benefits that

are enjoyed by opposite-sex couples, for no readily apparent

reason.

For example, same-sex couples are not

eligible for a range of rebates and tax concessions that are available to

opposite-sex couples. There is no justifiable reason for this

discrimination.

Discriminatory laws not only

interfere with the rights of same-sex couples to enjoy equal protection of the

law, they can interfere with the ability of same-sex couples to enjoy many other

rights set out in international human rights treaties. These

‘flow-on’ effects are discussed throughout this

chapter.

3.3.1 The

umbrella non-discrimination rights in human rights treaties

All of the major human rights treaties begin by

stating that all people should enjoy all the rights set out in the treaty

without discrimination of any kind. For example, article 2(1) of the ICCPR

states that:

Each State Party to the present Covenant undertakes to

respect and to ensure to all individuals within its territory and subject to its

jurisdiction the rights recognized in the present Covenant, without distinction

of any kind, such as race, colour, sex, language, religion, political or

other opinion, national or social origin, property, birth or other

status. (emphasis added)

Similarly, article 2(2) of ICESCR says that all people

should enjoy the rights set out in ICESCR without discrimination.

Article 2(1) of the CRC says that all children

should enjoy the rights in the CRC without discrimination of any kind,

irrespective of the child’s or his or her parent’s or legal

guardian’s race, colour, sex, language, religion, political or other

opinion, national, ethnic or social origin, property, disability, birth or other

status.

These articles are described as

‘umbrella clauses’ because they apply to all of the other rights set

out in the relevant treaty.[8] In

other words, they require Australia to guarantee all the ‘stand

alone’ rights within a treaty without discrimination.

Where there is discrimination in relation to

the recognition or enjoyment of a ‘stand alone’ right, there will be

a breach of that stand alone right in conjunction with the right to

non-discrimination.

For example, if a law

denies protection to a same-sex family which is available to an opposite-sex

family, this will be a breach of the right to the protection of the family

(article 23(1), ICCPR) in conjunction with the right to non-discrimination

(article 2(1), ICCPR).

3.3.2 The

right to equal protection of the law without any discrimination

In addition to article 2(1) in the ICCPR, article 26

of the ICCPR protects the right to equality before the law and the right to the

equal protection of the law without any discrimination.

The right to equality

before the law guarantees equality with regard to the enforcement of the law.

The right to the equal protection of the law without discrimination is directed

at the legislature and requires State Parties to prohibit

discrimination.[9]

Article

26 states:

All persons are equal before the law and are entitled

without any discrimination to the equal protection of the law. In this respect,

the law shall prohibit any discrimination and guarantee to all persons equal and

effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social

origin, property, birth or other status. (emphasis

added)

Article 26 is broader than article 2(1)

because it is a stand alone right which forbids discrimination in any law and in any field regulated by public authorities, even if

those laws do not relate to a right specifically mentioned in the

ICCPR.[10]

For example, if social security legislation

discriminates against same-sex couples it will breach Australia’s

obligations under article 26 of the ICCPR even though the legislation relates to

social security (which is a right otherwise protected by ICESCR).

3.3.3 Non-discrimination

protections for children

Article 2(1) of the CRC provides that Australia must

ensure children can enjoy their CRC rights without discrimination. Article 2(2)

of the CRC goes a step further and requires Australia to ensure that a child is

protected against ‘all forms of discrimination’ based on the status

or activities of their parents.

In other

words, article 2(2) of the CRC creates a stand alone right which protects

children from suffering any discrimination on the basis of the status of their

parents – including the sexual orientation of their parents. This is

discussed further below in section 3.5.

3.3.4 Non-discrimination

protections in the workplace

(a) Protection

from discrimination under ILO 111

The protection provided by ILO 111 against

discrimination is different to the protections in the ICCPR, CRC and ICESCR.

This is because ILO 111 focuses purely on non-discrimination in employment and

occupation.

Article 1(a) of ILO 111 defines

discrimination as:

...any distinction, exclusion or preference made on the

basis of race, colour, sex, religion, political opinion, national extraction or

social origin, which has the effect of nullifying or impairing equality of

opportunity or treatment in employment or occupation...

Australia has specifically added ‘sexual

preference’ to the grounds of discrimination prohibited under ILO 111.

Article 2 of the ILO 111 requires Australia

to:

...declare and pursue a national policy designed to

promote, by methods appropriate to national conditions and practice, equality of

opportunity and treatment in respect of employment and occupation, with a view

to eliminating discrimination in respect thereof.

Article 3(b) of the ILO 111 requires Australia to

enact legislation which reflects this policy of non-discrimination and equal

opportunity, while article 3(c) requires Australia to repeal any statutory

provisions which are inconsistent with the policy.

(b) Protection

from discrimination under ICESCR

Article 7 of ICESCR also specifically protects against

non-discrimination in the workplace, by setting out ‘the right to fair

wages and equal remuneration for work of equal value without distinction of any

kind’ and providing for ‘equal opportunity for everyone to be

promoted in employment, subject to no considerations other than those of

seniority and competence’.

3.3.5 Protection

against discrimination on the grounds of sexual orientation

None of the non-discrimination articles in any of the

ICCPR, CRC or ICESCR treaties specifically mention ‘sexual

orientation’ or ‘sexuality’ in the prohibited grounds of

discrimination. However, all of those articles forbid discrimination on the

basis of ‘sex’ or ‘other status’. And it appears that

the UN treaty bodies interpreting those provisions agree that the right to

non-discrimination includes protection from discrimination on the grounds of

sexual orientation.

The Human Rights Committee

has considered two cases from Australia (Toonen v Australia and Young

v Australia) which make it clear that one or the other of these categories

(‘sex’ or ‘other status’) protects people

from discrimination on the basis of sexual orientation under the ICCPR. These

cases are discussed further below.

The Young case is particularly relevant to this Inquiry because it is

authority for the proposition that a law differentiating between same-sex and

opposite-sex de facto couples in accessing financial entitlements will generally

be discrimination for the purposes of article 26 of the

ICCPR.[11]

The

Human Rights Committee has also emphasised the obligation of all parties to the

ICCPR to provide ‘effective protection’ against discrimination based

on sexual orientation.[12]

Further, the ESCR Committee has explicitly

stated that discrimination on the grounds of sexual orientation is prohibited

under article 2(2) of the

ICESCR.[13] The Committee on the

Rights of the Child has also indicated that the CRC prohibits discrimination on

the grounds of sexual

orientation.[14]

3.3.6 ‘Sex’

discrimination vs discrimination on the grounds of an ‘other

status’

The cases of Toonen and Young are

authority for the statement that the ICCPR prohibits discrimination on the

grounds of sexual orientation. However neither case clarifies whether the

prohibited discrimination is on the basis of ‘sex’ or an

‘other status.’

(a) Toonen

v Australia

In 1991 Mr Toonen challenged Tasmanian laws which

criminalised consensual homosexual acts, even when they occurred in a private

home.[15] The Human Rights Committee

found that the laws breached the right to privacy (article 17(1) of the ICCPR)

and the right to non-discrimination (article 2(1)) of the ICCPR).

The Committee did not make a finding about

whether the Tasmanian laws breached the right to equal protection under the law

(article 26), since it had already found that there was discrimination in the

application of the right to privacy (articles 2(1), 17(1) of the ICCPR).

The Committee found that the reference to

‘sex’ in articles 2(1) and 26 of the ICCPR, includes sexual

orientation.[16] However, the

Committee did not address whether discrimination on the grounds of sexual

orientation might also fall under the ‘other status’ category

– despite a specific request by Australia to do

so.[17]

The

Human Rights Committee’s recommendation that the Tasmanian laws be

repealed was implemented through the introduction of the Human Rights (Sexual

Conduct) Act 1994 (Cth). This act was introduced after a Constitutional

legal battle between Mr Toonen’s partner, Mr Rodney Croome, and the then

Tasmanian government.[18]

(b) Young

v Australia

In 1999, Mr Young challenged Commonwealth laws that

denied him the right to receive a veterans’ pension because he was

gay.[19]

Mr Young was in a 38 year relationship with

his partner, Mr C, who was a war veteran. When Mr C died, Mr Young applied for a

veterans’ pension under the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlement Act). The Department of Veterans’

Affairs denied his pension application because a same-sex partner does not

qualify as a veteran’s ‘dependant’, even though an

opposite-sex de facto partner does qualify.

The

Human Rights Committee found no reasonable or objective reasons for denying Mr

Young the pension. It concluded that the distinction between the treatment of

opposite-sex couples and same-sex couples under the Veterans’ Entitlements

Act was discrimination in breach of article 26 of the

ICCPR.[20]

As in the Toonen case, the Human Rights

Committee did not clarify whether the discrimination in Mr Young’s case

was on the basis of ‘sex’ or ‘other status’. The

Committee said the following in this regard:

The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also

discrimination based on sexual orientation... the Committee finds that

[Australia] has violated article 26 of the Covenant by denying [Mr Young] a

pension on the basis of his sex or sexual

orientation.[21] (emphasis

added)

One way of reading this passage is that

the Human Rights Committee is suggesting that ‘sexual orientation’

is a subset of ‘sex’ discrimination. Another way of reading the

passage is that ‘sexual orientation’ is either a subset of

‘sex’ or it is something in addition to ‘sex’

discrimination, namely discrimination on the grounds of any ‘other

status’. It is unclear which interpretation was intended by the

Committee.

To date, the Committee’s

recommendation that the Australian government amend the veterans’

entitlements law to give Mr Young access to a pension has not been

adopted.

(c) ‘Other

status’ is the better approach

Some academics suggest that sexual orientation

‘seems more properly classified as an ‘other status’, rather

than as an aspect of one’s

gender’.[22]

In practice it may not matter whether

discrimination on the grounds of sexual orientation is included in the

‘sex’ category or the ‘other status’ category.

However, in the Inquiry’s view, it is

preferable to distinguish discrimination on the grounds of sexual orientation

from discrimination on the grounds of ‘sex’. This is because

‘sex’ discrimination is more about a person’s gender than a

person’s sexuality.

Confusing

discrimination on the basis of ‘sexual orientation’ with

discrimination on the grounds of ‘sex’ minimises the importance of

two very different motivations for discrimination.

For example, if a law provides that gay men

can access a veterans’ pension but lesbian women cannot, then that law

would discriminate against lesbian women because they are women in a

same-sex relationship, not because they are in a same-sex relationship. This

would amount to discrimination on the grounds of their ‘sex’ not

their ‘sexual orientation’.

On the

other hand, if a law provides that a man in an opposite-sex couple can access

the veterans’ pension but a man in a same-sex couple cannot, then the

discrimination is based on the ‘sexual orientation’ of the men, not

their ‘sex’.

Distinguishing between

‘sex’ discrimination and discrimination on the grounds of

‘sexuality’ is consistent with the treatment of ‘sex’

discrimination under Australia’s Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The Sex Discrimination Act separates the

concept of ‘sex’ discrimination from the concept of ‘marital

status’ discrimination.[23] However, it must be noted that discrimination on the grounds of ‘marital

status’ under the Sex Discrimination Act does not include discrimination

against same-sex couples.

3.3.7 Different

treatment is not always discriminatory treatment

Different treatment does not always amount to

discriminatory treatment.

The

Human Rights Committee’s General Comment 18 states that for the purposes

of interpreting the scope of both article 2(1) and article 26 of the ICCPR, the

term ‘discrimination’:

....should be understood to imply any distinction,

exclusion, restriction or preference which is based on any ground such as race,

colour, sex, language, religion, political or other opinion, national or social

origin, property, birth or other status, and which has the purpose or effect

of nullifying or impairing the recognition, enjoyment or exercise by all

persons, on an equal footing, of all rights and

freedoms.[24] (emphasis

added)

This means that different treatment will

only be discrimination if its purpose or effect is to harm or deny a

person’s rights and freedoms.

The Human

Rights Committee has also stated if the grounds for treating one group of people

differently to another group are:

  • reasonable and objective, and
  • the aim is to achieve a purpose which is legitimate under

    the ICCPR

then there may not be any

discrimination.[25] This reasoning

also applies to the CRC, ICESCR and ILO

111.

Therefore, where there is a difference in

treatment between same-sex and opposite-sex couples, it is relevant to consider

whether:

  • the purpose of the different treatment is legitimate

    under the relevant treaty

  • the differentiation is a reasonable and objective way of

    achieving that purpose

and

  • the differentiation has, or intends, a negative

    consequence, namely impairing or nullifying a person’s rights and

    freedoms.

(a) Different

treatment of same-sex and opposite-sex de facto couples is discrimination

The Inquiry has not been presented with any arguments

which suggest that the sexual orientation of a couple is a reasonable and

objective justification for differential treatment in the area of financial and

work-related entitlements.

The Human Rights

Committee, the ESCR Committee, the Children’s Rights Committee and the

European Court of Human Rights have consistently found that discrimination

between people on the grounds of sexuality breaches the relevant human rights

treaties.[26]

Thus,

the Inquiry has concluded that Australia's obligations under the ICCPR require

Australia to remove all distinctions between same-sex couples and opposite-sex

couples in the area of accessing financial and work-related entitlements.

(b) Different

treatment of same-sex and married couples may be discrimination

The Human Rights Committee has considered the issue of

same-sex marriage only once.

In the case of Joslin v New Zealand the Committee found that ‘a mere refusal to

provide for marriage between homosexual couples’ does not violate the

State Party’s obligations under the ICCPR. [27]

However,

if denying the right to marry results in discrimination in the area of financial

and work-related entitlements then there may still be a breach of international

law.[28]

Discrimination

could occur if financial entitlements and benefits are only available to married

couples (and not to de facto opposite-sex couples or same-sex couples). This is

because same-sex couples are unable to meet the threshold requirement (marriage)

of accessing the benefits, if same-sex couples cannot marry.

For example, if financial entitlements are

only available to a married couple, an opposite-sex couple has the option to

marry and therefore obtain those benefits. But a same-sex couple can never

obtain those entitlements because they can not meet the ‘marriage’

requirement.[29] This is a form of

‘indirect

discrimination’.[30]

In practice, most Australian laws treat

married and de facto couples in the same way. Thus this form of discrimination

does not frequently arise. However, in those areas where married and de facto

couples do have different access to financial entitlements, there will be

discrimination against same-sex couples.

3.3.8 The

right to a remedy when there is discrimination

Article 2(3) of the ICCPR requires Australia to ensure

that same-sex couples can access ‘effective remedies’ to address

human rights violations.[31]

An ‘effective remedy’ must be

enforceable and requires ‘reparation to individuals whose Covenant rights

have been violated’.[32] A

failure to investigate allegations of violations can in itself give rise to a

separate breach of the

ICCPR.[33]

A

number of submissions to the Inquiry observed there are no effective federal

remedies available to people who experience discrimination on the grounds of

sexual orientation.[34]

In particular, discrimination on the grounds

of sexual orientation is not unlawful discrimination under federal

discrimination law.[35]

The Workplace Relations Act 1996 (Cth)

makes it unlawful to dismiss someone because of their sexual preference, or for

reasons which include their sexual

preference.[36] While this provides

effective remedy for a person who is dismissed on the grounds of their sexual

orientation, the remedy is limited to discrimination in the context of dismissal

from employment.[37]

HREOC can investigate discrimination on the grounds of

sexual orientation under its statutory powers to:

  • investigate complaints of breaches of

    ‘human rights’[38] or

    ILO 111 discrimination[39]

  • determine if laws are inconsistent with human

    rights[40] or equal opportunity and

    treatment in

    employment[41]

  • report to the Minister about any action needed to

    comply with human rights

    obligations[42] or ensure equal

    treatment and opportunity in

    employment.[43]

However,

HREOC cannot enforce any recommended remedies. The Human Rights Committee has

confirmed that this means complaints to HREOC can not be characterised as

effective remedies as defined by article 2(3) of the ICCPR. [44]

Where a same-sex couple experiences

discrimination and there is no effective remedy for that discrimination, there

will be a breach of article 2(3) of the ICCPR.

3.4 Can

discrimination against same-sex parents interfere with the right to protection

of family?

Some of the laws examined by this Inquiry reflect a

narrow view about what constitutes a legitimate family. The failure to include

same-sex couples and their children within the definitions of

‘spouse’, ‘member of a couple’, ‘child’,

‘dependant’ and so on, means that that same-sex families miss out on

tax, social security, superannuation, Medicare, aged care and other federal

financial benefits which are designed to assist members of the legally defined

‘family’, and are available to opposite-sex parents and their

children.

The failure to recognise the lesbian

co-mother or gay co-father is particularly problematic for same-sex couples who

face confusion and uncertainty when attempting to access the financial

entitlements available to parents in an opposite-sex couple.

3.4.1 Same-sex

families are protected by human rights law

The ICCPR, the CRC and the ICESCR all place a positive

obligation on Australia to protect the rights of the family.

The concept of family means different things

to different people. But the Human Rights Committee takes the view that the term

‘family’ is not confined by the concept of

marriage[45] and should be

interpreted broadly to include a wide variety of living

arrangements.[46]

The Human Rights Committee has also stated

that when a group of persons is regarded as a family under the legislation and

practises of a particular country, that family must be protected under the

ICCPR.[47] A country’s laws

cannot:

  • Limit the definition of ‘family’ by applying

    structures or values which breach international human rights standards;

    nor

  • Prescribe a narrower definition of

    ‘family’ than that adopted within that country’s society.[48]

The

Human Rights Committee has set out some minimal requirements for the existence

of family including ‘life together, economic ties, [and] a regular and

intense relationship’ however it has not sought to impose any strict

definitional criteria on the concept of

family.[49]

The Committee on the Rights of the Child has

also emphasised that the definition of ‘family’ is flexible,

stating:

When considering the family environment, the Convention

reflects different family structures arising from various cultural patterns and

emerging familial relationships. In this regard, the Convention refers to the

extended family and the community and applies in situations of nuclear family,

separated parents, single-parent family, common-law family and adoptive

family.[50]

While

none of these statements explicitly include same-sex families, this Inquiry

takes the view that same-sex couples and their children are families in the same

way as opposite-sex couples and their children are families. This view reflects

both the social reality of Australian society (around 20 % of lesbians and five

% of gay men in Australia have

children)[51] and the broad and

flexible definition of family adopted by United Nations treaty bodies.

The Inquiry has

received submissions suggesting that same-sex couples and their children should

not be recognised as families. The Inquiry

rejects this view as contrary both to human rights principles and the reality of

modern Australian society.

3.4.2 Discrimination

against same-sex couples and parents can interfere with the right to protection

of family

Where there is discrimination against same-sex couples

or same-sex parents, this may impact on the right to protection of the family as

a whole.

Failing to

provide protection to a family on the basis of the sexual orientation of one or

both parents may result in a breach of article 23(1) of the ICCPR in conjunction

with article 2(1).

Further, the ICESCR

requires Australia to provide ‘the widest possible protection and

assistance’ to the family, ‘particularly for its establishment and

while it is responsible for the care and education of dependent children’

(ICESCR, article 10). This includes taking ‘special measures of protection

and assistance on behalf of all children and young persons without any

discrimination for reasons of parentage or other conditions’.

Denying protection and assistance to same-sex

families which is available to opposite-sex families, will breach article 10 in

conjunction with article 2(2).

3.4.3 Discrimination

against same-sex couples and parents can interfere with the right to privacy,

family and home

Laws which interfere with the privacy, family life or

home life of same-sex couples or their children, on the basis of the sexual

orientation of one or both of the parents, may give rise to a breach of the

ICCPR (articles 2(1) and 17) or the CRC (articles 2 and 16).

The ICCPR protects against certain types of

interference with a person’s privacy, family and home. Specifically,

article 17(1) of the ICCPR states that:

No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home or correspondence, nor

to unlawful attacks on his honour and reputation. (emphasis

added)

Article 16(1) of the CRC uses the same

language to protect children from arbitrary or unlawful interference with their

privacy, family and home.

As noted earlier,

the term ‘family’ has been interpreted broadly to ‘include all

those comprising the family as understood in the society of the State party

concerned.’[52]

Further, the concept of

‘arbitrary’ interference protects against situations where

‘lawful’ interference contravenes the provisions of the

ICCPR.[53] In other words, it

contemplates a situation where the law itself is the problem.

(a) Examples

of the breach of the right to privacy

As noted in section 3.3.6, in the Toonen case the Human Rights Committee found that Tasmanian laws

criminalising consensual homosexual activity breached the right to privacy under

Article 17(1) of the ICCPR. The Committee rejected the argument that the laws

were justified on the grounds of public health and

morals.[54]

The

European Court of Human Rights has also held that laws setting a

different age of sexual consent for homosexual activity than heterosexual

activity violate the right to privacy (article 8) and the non-discrimination

provision of the European Convention on Human Rights (ECHR) (article

14).[55] Article 8 and article 14 of

the ECHR substantially reflect articles 2 and 17 of the ICCPR.

(b) Example

of the breach of the right to family life

In 1999 the European Court of Human Rights held that a

court’s decision to deny a gay man custody of his child on the basis of

his sexual orientation constituted an interference with the man’s family

life contrary to article 8 of the ECHR in conjunction with the

non-discrimination provision of the ECHR (article

14).[56]

(c) Example

of the breach of the right to home life

In 2003 the European Court of Human Rights held the

decision to deny a gay man the right to continue occupying his deceased

partner’s flat (a right available to opposite-sex de facto partners)

violated article 8 (respect for home life) and article 14 (non-discrimination)

of the ECHR .[57]

3.5 Can

discrimination against same-sex parents interfere with the rights of the child?

The lives of children are inextricably bound up with

the lives of their parents. The Committee on the Rights of the Child has

recognised that ‘the human rights of children cannot be realized

independently from the human rights of their parents, or in isolation from

society at

large’.[58]

The

exclusion of certain same-sex parents from financial benefits and entitlements

may have a negative impact on that family’s capacity to protect the best

interests of the child.

For example, a child

born to a lesbian couple through assisted reproductive technology will not be

recognised as the child of the lesbian co-mother under income tax law. This may

mean that the lesbian parents will miss out on tax benefits intended to help

families support their children.

3.5.1 Discrimination

against same-sex parents can amount to discrimination against a

child

The CRC requires Australia to ensure that all children

can enjoy their rights without discrimination. In particular, Australian

children should not suffer any discrimination on the basis of the

‘status’ of their parents or legal guardians. Article 2(2) of the

CRC reads as follows:

States Parties shall take all appropriate measures to

ensure that the child is protected against all forms of discrimination or

punishment on the basis of the status, activities, expressed opinions, or

beliefs of the child's parents, legal guardians, or family members.

The scope of article

2(2) is very broad and requires State Parties to protect the child from

discrimination regardless of whether such

discrimination is related to a right under the

CRC.[59]

The Committee on the Rights of the Child has

expressly stated that:

  • Discrimination on the basis of sexual orientation

    is discrimination for the purpose of article

    2.[60]

  • Direct and indirect discrimination against

    children, their parents, or legal guardians will breach article 2 of the CRC. [61]

The

Committee on the Rights of the Child has expressed concern that:

[Y]oung children may...suffer the consequences of

discrimination against their parents, for example if children have been born out

of wedlock or in other circumstances that deviate from traditional values, or if

their parents are refugees or asylum

seekers.[62]

In evidence to the Inquiry, Mr Philip Lynch,

Director and Principal Solicitor of the Human Rights Resource Law Centre argued:

...discrimination against the same-sex parents or

guardians of a child which has an adverse impact on the child (eg, parents

unable to access a particular financial entitlement which would have been of

benefit to the parents and, by extension, the child) directly engages and

violates art 2(2) of the CRC.[63]

In

this Inquiry’s view, when laws relating to financial and work-related

entitlements of same-sex couples disadvantage the children of those couples,

when compared with children of opposite-sex couples, those laws may breach

article 2(2) of the CRC.

3.5.2 Discrimination

against same-sex parents can interfere with the best interests of the child

The best interests principle set out in article 3(1)

is one of the core principles of the

CRC.[64] It provides that:

In all actions concerning children, whether undertaken by

public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a

primary consideration. (emphasis

added)

The best

interests principle requires parliament, the executive (including private

institutions acting on their behalf) and the judiciary to ensure that the best

interests of the child are a primary consideration in all actions concerning

children.

Laws which discriminate against

same-sex parents may have a negative impact on that couple’s child. If

such a negative impact is a reasonably foreseeable outcome of a particular law

it suggests that the best interests of the child were not a primary

consideration in the decision to enact such

legislation.

For example, minimum workplace

entitlements for Australian employees include parental leave. However, parental

leave is only guaranteed to the male partner of a woman who has just given

birth. This means that there is no guarantee that a lesbian co-mother can take

leave to help her partner through the birth of her child and the first weeks of

the child’s life.

Given that the

purpose of parental leave is to enable a parent to care for a newly born child,

and to assist his or her partner in this task, the decision to deny leave to a

parent in a same-sex couple does not appear to take into account the best

interests of the child as a primary consideration. Such laws are in breach of

article 3(1) in conjunction with article 2 of the CRC.

3.5.3 Discrimination

against same-sex parents can interfere with the performance of their common

responsibilities

Under the CRC Australia is obliged to respect and

assist the role of a child’s parents in protecting the best interests of

the child.

Article 18(1) of the CRC expands on

the concept of the responsibilities of parents and requires State Parties to:

...use their best efforts to ensure recognition of the

principle that both parents have common responsibilities for the upbringing

and development of the child. Parents or, as the case may be, legal

guardians, have the primary responsibility for the upbringing and development of

the child. The best interests of the child will be their basic concern. (emphasis added)

Article 18(2) goes a step

further and imposes an obligation on State Parties to provide appropriate

assistance to parents and legal guardians in the performance of their

child-rearing responsibilities. The purpose of this assistance is to guarantee

and promote all the rights set out in the CRC. Relevantly, article 18(2)

states:

For the purpose of

guaranteeing and promoting the rights set forth in the present

Convention, States Parties shall render

appropriate assistance to parents and legal guardians in the performance of

their child-rearing responsibilities and shall ensure the development of

institutions, facilities and services for the care of children. (emphasis

added)

While the UNICEF Implementation Handbook does not

specifically refer to the responsibilities and rights of parents in a same-sex

couple, it states:

Under the terms of article 18, the law must recognise the

principle that both parents have common responsibility...

Government measures should be directed at supporting and promoting the viability

of joint parenting. (emphasis in

original)[65]

Laws denying benefits and entitlements to a same-sex

parent, which are otherwise available to an opposite-sex parent, will breach

article 18, in conjunction with article 2 of the CRC.

Further, laws which fail to recognise the

lesbian co-mother or gay co-father of a child may breach the obligation to

recognise the ‘common responsibilities’ of ‘both

parents’ under article 18(1).

3.5.4 Discrimination

against same-sex parents can interfere with a child’s right to identity

The CRC recognises the importance of family relations

in forming and preserving the identity of the child.

(a) A

child’s right to know and be cared for by his parents

Under article 7(1) of the CRC a child has a right to

be:

...registered immediately after birth and shall have the

right from birth to a name, the right to acquire a nationality and, as far as

possible, the right to know and be cared for by his or her parents. (emphasis added)

Article 7(1) of the CRC reflects the text of article

24(2) of the ICCPR which provides that ‘every child shall be registered

immediately after birth and shall have a name’. The Human Rights Committee

has stated article 24(2) ‘is designed to promote the child’s legal

personality’.[66]

Part of the registration process is to note

the parents of the child. This ensures that parents take responsibility for the

child and recognises the importance of parents in the development, well-being

and maintenance of the child. [67]

There

are some Australian states which allow the registration of a lesbian couple on a

child’s birth certificate and other states which do not. Those states

which do not recognise both same-sex parents of a child, in circumstances where

both of the heterosexual parents would be recognised, may be in breach of

article 7 of the CRC, either independently or in conjunction with article 2.

This is discussed further in Chapter 5 on Recognising Children.

(b) A

child’s right to preserve his or her identity

Article 8(1) of the CRC reads as follows:

States Parties undertake to respect the right of the child

to preserve his or her identity, including nationality, name and family

relations as recognized by law without unlawful interference.

While the UNICEF Implementation Handbook observes the

legal meaning of the phrase ‘family relations recognised by law’ is

unclear, it recognises that a child’s sense of identity depends on more

than just knowing his or her biological

parents.[68]

In terms of a child’s right to know his

or her parents under article 7 and the child’s right to preserve his or

her identity under article 8, the definition of ‘parents’ has been

interpreted broadly to include, genetic parents, birth parents and psychological

parents.[69]

The UNICEF Implementation Handbook states

that:

...psychological parents – those who cared for the

child for significant periods during infancy and childhood – should also

logically be included [in the definition of parents] since these persons too are

intimately bound up in children’s identity and thus their rights under

article

8.[70]

Thus,

in the Inquiry’s view, the lesbian co-mother or gay co-father of a child

should be included under the CRC definition of ‘parents’. If an

Australian law fails to recognise the potential significance of such a person it

may deny the child’s right to know his or her ‘psychological

parent’ or interfere with a child’s sense of identity.

For example, the lesbian co-mother of a child

born through assisted reproductive technology is not automatically recognised as

a parent under the Family Law Act 1975 (Cth). If the parents separate,

the legal rights of the lesbian co-mother may not be recognised. To the extent

that this failure to recognise parental status may lead to interference with a

child’s sense of identity, article 8 may be breached in conjunction with

article 2 of the CRC.

3.5.5 Discrimination

against same-sex couples in adoption can interfere with the best interests of

the child

Article 21 of the CRC requires countries which permit

adoption to make sure that the best interests of the child are ‘the

paramount consideration’ in the adoption process. This requirement is even

stronger than the principle in article 3(1) of the CRC which requires a

child’s best interests to be ‘a primary

consideration’.

The UNICEF Handbook

states that article 21 of the CRC establishes that ‘no other interests,

whether economic, political, state security or those of the adopters, should

take precedence over, or be considered equal to, the child’s’. This

means that ‘any regulation [that] fetters the principle could lead to a

breach of the Convention – for example inflexible rules about the

adopters, such as the setting of age limits

...’.[71]

Australian

laws restricting adoption rights to heterosexual individuals or couples may

breach article 21 of the CRC in conjunction with article 2. This is because a

blanket ban on adoption by same-sex couples prevents an objective case-by-case

assessment of what is in an individual child's best interests.

As discussed further in Chapter 5 on

Recognising Children, discrimination against same-sex couples in adoption may

also lead to discrimination in access to financial entitlements for the benefit

of the family. This is because some financial benefits are only available to the

birth parents or adoptive parents.

3.6 Can

discrimination against same-sex couples interfere with the right to social

security?

Most federal social security laws in Australia do not

recognise same-sex couples as a genuine

relationship.[72] In some

circumstances, this can result in a financial disadvantage for same-sex couples.

In other circumstances same-sex couples may receive a financial advantage.

3.6.1 Social

security has a broad definition in human rights law

Article 9 of the ICESCR recognises the ‘right of

everyone to social security, including social insurance’.

According to the ESCR Committee and the ILO,

social security includes:

  • medical care
  • sickness benefits
  • unemployment benefits
  • old-age benefits
  • employment injury benefits
  • family benefits
  • maternity benefits
  • invalidity benefits
  • survivors

    benefits.[73]

The ESCR Committee draft General

Comment on social security confirms the broad scope of the right to social

security, stating:

The right to social security covers the right to access

benefits, through a system of social security, in order to secure (i) income

security in time of economic or social distress; (ii) access to health care and

(iii) family support, particularly for children and adult dependants. Economic

and social distress includes the interruption of earnings through sickness,

maternity, employment injury, old age, invalidity or disability, death or other

factor that is either beyond the person’s control or would be otherwise

inconsistent with the principle of human

dignity.[74]

Consistent with the broad scope right to

social security, this Inquiry considers the right to social security without

discrimination is relevant to the discussions in the following

chapters:

  • Chapter 8 on Tax
  • Chapter 9 on Social Security
  • Chapter 10 on Veterans’ Entitlements
  • Chapter 12 on Health Care
  • Chapter 13 on Superannuation.

3.6.2 Discrimination

against same-sex couples can interfere with the right to social security

The ESCR Committee’s draft General Comment on

the interpretation of the right to social security states that the ICESCR:

...prohibits any discrimination on the grounds of race,

colour, sex...sexual orientation and civil, political, social or other

status, which has the intention or effect of nullifying or impairing the

equal enjoyment or exercise of the right to social security (emphasis

added).[75]

The

ESCR Committee has also recognised the importance of social security benefits to

families, stating that ‘family benefits should be provided to families,

without discrimination on prohibited

grounds’.[76]

The

ESCR Committee has urged State Parties to actively take steps to remove

discrimination on prohibited grounds, stating ‘[r]estrictions on access to

social security schemes, particularly benefits, should also be reviewed to

ensure that they do not discriminate in law or in

fact’.[77]

Therefore, excluding same-sex couples from

social security benefits may breach the right to social security in article 9 of

the ICESCR in conjunction with article 2(2).

3.6.3 Discrimination

against same-sex parents can impact on a child’s right to benefit from

social security

Article 26(1) of the CRC reads as follows:

States Parties shall recognize for every child the right

to benefit from social security, including social insurance, and shall take the

necessary measures to achieve the full realization of this right in accordance

with their national law.

The right of a child

to benefit from social security under article 26 can be distinguished

from article 9 of ICESCR, which recognises a right to social security.

This distinction ‘reflects the fact that children’s economic

security is generally bound up with that of their adult

caregivers’.[78]

As noted above, Australian social security

laws do not generally recognise same-sex couples. Given that a child’s

right to benefit from social security is often inextricable from the rights of

his or her parents, legislation which discriminates against same-sex couples or

parents, generally also discriminates against a child of the couple. On this

basis, Australia may be in breach of article 26 in conjunction with article 2(1)

of the CRC.

3.7 Can

discrimination against same-sex couples interfere with the right to health?

Australian laws which provide health care and medicine

subsidies currently discriminate against same-sex couples. This can have a

negative impact on the ability of same-sex couples and families to access health

care and medicines.

3.7.1 Discrimination

against same-sex couples can interfere with the right to health

Article 12 of ICESCR ‘recognises the right of

everyone to the enjoyment of the highest attainable standard of physical and

mental health’.

The right to health is

‘understood as the right to the enjoyment of a variety of facilities,

goods, services and conditions necessary for the highest attainable standard of

health’.[79]

Article 2 of ICESCR requires that the

enjoyment of the rights set out in the ICESCR, including the right to health,

must occur without discrimination. The ECSR Committee has expressly stated that

the ICESCR:

Proscribes any discrimination in access to health care and

underlying determinants of health, as well as to means and entitlements for

their procurement, on the grounds of race, colour, sex...sexual orientation...

which has the intention or effect of nullifying or impairing the equal enjoyment

or exercise of the right to

health.[80]

Australian laws denying equal access to

financial entitlements which help cover the cost of health care may act as a

financial barrier to same-sex couples accessing health care.

This may contravene the right of people in

same-sex families to enjoy ‘the highest attainable standard of physical

and mental health’ without discrimination (article 2).

3.7.2 Discrimination

against same-sex parents can interfere with a child’s right to

health

Like article 12 of ICESCR, article 24(1) of the CRC

protects the rights of the child to access the highest attainable standard of

health.

The Committee on the Rights of the

Child has expressed concern about the impact that discrimination, including

discrimination on the grounds of sexual orientation, can have on the physical

and mental health of the child.[81]

The CRC requires Australia to ensure that no

child suffers discrimination in the provision of health care as a result of the

sexual orientation of the child’s parents or legal guardian, or indeed the

sexual orientation of the child.

This means

that if a same-sex couple is discriminated against in the provision of health

services and this discriminatory treatment has a negative impact on the

child’s capacity to enjoy the ‘highest attainable standard of

health’, there may be a breach of article 24(1) in conjunction with

article 2(1).

3.8 How

are these human rights principles applied in this report?

This chapter explains the human rights principles

applied in the remainder of this report.

The

emphasis of this report is on the right to non-discrimination because, as one

commentator observed, ‘discrimination is at the root of virtually all

human rights abuses’.[82]

Therefore, each of the following chapters

identifies whether and how the specific laws breach the right to protection of

the law without discrimination on the grounds of sexual orientation. If such

discrimination is identified, the Inquiry then examines the impact of that

discrimination on other rights protected by the ICCPR, the CRC and the

ICESCR.

The findings in each chapter are

summarised in the final Chapter 18.


Endnotes

[1] Since 1986, HREOC has had the powers to investigate alleged violations of the

ICCPR, although it has no power of penalty or enforcement. HREOC also has other

powers to monitor Australia’s compliance with the ICCPR, including the

power to examine where federal legislation complies with Australia’s

obligations under the ICCPR. See Human Rights and Equal Opportunity

Commission Act 1986 (Cth), s 11(1)(e), s

11(1)(f).
[2] Since 1986, HREOC has had the powers to investigate alleged violations of the

CRC, although it has no power of penalty or enforcement. HREOC also has other

powers to monitor Australia’s compliance with the CRC, including the power

to examine where federal legislation complies with Australia’s obligations

under the CRC. See Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(e), s

11(1)(f).
[3] Convention on the Rights of the Child, article

45.
[4] ESCR Committee, General Comment 3, (1990), para 1, in Compilation of General

Comments and General Recommendations Adopted by Human Rights Treaty Bodies,

UN Doc HRI/GEN/1/Rev.8 (2006) at

15.
[5] The Human Rights and Equal Opportunity Regulations specifically state that for

the purposes of the Human Rights and Equal Opportunity Commission Act,

‘discrimination’ includes discrimination on the grounds of sexual

preference. See Human Rights and Equal Opportunity Commission Regulations 1989

(Cth), No 407 4(a)(ix).
[6] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(b),

32(1).
[7] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s

35(2).
[8] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR

Commentary, N.P. Engel, Strasbourg, 1993,

p28.
[9] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, N.P. Engel, Strasbourg,1993 , p473; See also S Joseph, M Castan and J

Schultz, The International Covenant on Civil and Political Rights: Cases,

Materials and Commentary, 2nd ed, Oxford University Press, 2004,

p686, para

[23.11].
[10] Human Rights Committee, General Comment 18, (1989), para 12, in Compilation

of General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 185. See also Broeks v

Netherlands, Communication No 172/1984, UN Doc CCPR/C/OP/2 at 196

(1990).
[11] See also Human Rights Law Resource Centre, Submission

160.
[12] Concluding observations of the Human Rights Committee: El Salvador,

CCPR/CO/78/SLV (2003) at para 16; Concluding observations of the Human Rights

Committee: Philippines, CCPR/CO/79/PHL (2003) at para 18; Concluding

observations of the Human Rights Committee: United Kingdom of Great Britain

and Northern Ireland (Hong Kong), CCPR/C/79/Add.57 (1995) at para 13;

Concluding observations of the Human Rights Committee: Poland,

CCPR/C/79/Add.110 (1999) at para

23.
[13] ESCR Committee, General Comment 18, (2005), para 12(b)(i), in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at 151. See also ESCR Committee,

General Comment 14, (2000), para 18, in Compilation of General Comments and

General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc

HRI/GEN/1/Rev.8 (2006) at

91.
[14] Committee on the Rights of the Child, General Comment 3, (2003), para 6, in Compilation of General Comments and General Recommendations Adopted by Human

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

365.
[15] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para

2.1.
[16] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para

8.7.
[17] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, para

8.7.
[18] Croome v Tasmania (1997) 191 CLR

119.
[19] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

10.4.
[20] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

10.4.
[21] Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

10.4.
[22] S Joseph, M Castan and J Schultz, The International Covenant on Civil and

Political Rights: Cases, Materials and Commentary, 2nd ed, Oxford

University Press, 2004, p691, para [23.25]. See also, Castan Centre for Human

Rights Law, Submission

126.
[23] Sex Discrimination Act 1984 (Cth), ss

5,6.
[24] Human Rights Committee, General Comment 18, (1989), para 7, in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

187.
[25] Human Rights Committee, General Comment 18, (1989), para 13, in Compilation

of General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at 188. See also Young v

Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

10.4.
[26] The European Court of Human Rights has held that differential treatment based on

sexual orientation requires ‘particularly serious reasons by way of

justification’ and must respect the principle of proportionality. See Karner v Austria [2003] ECHR 395, 37,

40.
[27] Joslin v New Zealand, (902/1999) UN Doc.

CCPR/C/75/D/902/1999.
[28] In Joslin, the separate but concurring opinion of Messrs Lallah and

Scheinin noted that ‘a denial of certain rights or benefits to same-sex

couples that are available to married couples may amount to discrimination

prohibited under article 26, unless otherwise justified on reasonable and

objective criteria’. See Joslin v New Zealand, (902/1999) UN Doc.

CCPR/C/75/D/902/1999.
[29] The Human Rights Committee has held that differential access to benefits

available to a married couple and an opposite-sex de facto couple may be

reasonable and objective because the opposite-sex de facto couple has the choice to marry and access the benefits. See Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

10.4.
[30] Indirect discrimination occurs when there is a requirement or condition or

practice that is the same for everyone but has an unfair effect on a particular

group of people. Direct and indirect discrimination are prohibited by the

ICCPR.
[31] Human Rights Committee, General Comment 31, (2004), para 15 in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

237.
[32] Human Rights Committee, General Comment 31, (2004), para 16 in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

237.
[33] Human Rights Committee, General Comment 31, (2004), para 15 in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/GEN/1/Rev.8 (2006) at

237.
[34] See for example Equal Opportunity Commission of Western Australia, Submission

342; Equal Opportunity Commission of Victoria, Submission

327.
[35] Both the Charter of Human Rights and Responsibilities Act 2006 (Vic) and

the Human Rights Act 2004 (ACT) prohibit discrimination on the grounds of

sexual orientation: see Charter of Human Rights and Responsibilities Act 2006 (Vic), s 3; Human Rights Act 2004 (ACT), s 8.
[36] Workplace Relations Act 1996 (Cth), s 659.
[37] The Workplace Relations Act 1996 (Cth) also directs the Australian

Industrial Relations Commission, the Australian Fair Pay Commission and the

Office of the Employment Advocate to take into account the need to prevent and

eliminate discrimination on a range of grounds, including ‘sexual

preference’: Workplace Relations Act 1996 (Cth), ss 104(b),

222(1)(e), 151(3)(b), 568(2)(e). The Workplace Relations Act 1996 (Cth)

also provides that awards or award-related orders also must not discriminate on

the grounds of ‘sexual

preference’.
[38] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s

11(1)(f).
[39] Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 31(b),

32(1).
[40] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 11(1)(e).
[41] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s 31(a).
[42] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s

11(1)(j).
[43] Human Rights and Equal Opportunity Commission Act 1986 (Cth), s

31(f).
[44] C. v Australia, (900/1999) UN Doc. CCPR/C/76/D/900/1999, para

7.3.
[45] Hendriks v Netherlands, (201/85) UN Doc. CCPR/C/33/D/201/1985, para 10.3.

See also S Joseph, J Schultz and M Castan, The International Covenant on

Civil and Political Rights: Cases, Materials and Commentary, Oxford

University Press (2004),

p588.
[46] Human Rights Committee, General Comment 16, (1988), para 5, in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006), at

182.
[47] Human Rights Committee, General Comment 19, (1990), para 2 in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at 188.
[48] S Joseph, M Castan and J Schultz, The International Covenant on Civil and

Political Rights: Cases, Materials and Commentary, 2nd ed, Oxford

University Press, 2004, p587, para

[20.06].
[49] Balaguer Santacana v Spain,(417/90) UN Doc. CCPR/C/51/D/417/1990, para

10.2.
[50] Committee on the Rights of the Child, Report on the fifth session, January

1994, UN Doc. CRC/C/24/Annex V, p 63. See also discussion in R

Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p88.
[51] Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex

Couple Families’, p142 (2005).
[52] Human Rights Committee, General Comment 16, (1988), para 5, in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

182.
[53] Human Rights Committee, General Comment 16, (1988), para 4, in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

182.
[54] Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92, paras 8.4 -

8.6.
[55] BB v The United Kingdom [2004] ECHR 65.
[56] Salgueiro da Silva Mouta v Portugal [1999] ECHR

176
[57] Karner v Austria [2003] ECHR

395.
[58] Concluding Observations of the Committee on the Rights of the Child: Uzbekistan, CRC, CRC/C/111 (2001) 117, para

558.
[59] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p35.
[60] Committee on the Rights of the Child, General Comment 3, (2003), in Compilation of General Comments and General Recommendations Adopted by Human

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006), at 363; Committee on

the Rights of the Child, General Comment 4 (2003), in Compilation of General

Comments and General Recommendations Adopted by Human Rights Treaty Bodies,

UN Doc HRI/GEN/1/Rev.8 (2006) at 376.
[61]Concluding

Observations of the Committee on the Rights of the Child: Libyan Arab

Jamahiriya, CRC, CRC/C/132 (2003) 100 at para 368; Concluding Observations

of the Committee on the Rights of the Child: Morocco, CRC, CRC/C/132

(2003) 100 at para 479.
[62] Committee on the Rights of the Child, General Comment 7, (2003), para 12, in Compilation of General Comments and General Recommendations Adopted by Human

Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.8 (2006), at

437.
[63] Phillip Lynch, Melbourne Hearing, 27 September 2006.
[64] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p39.
[65] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p249.
[66] Human Rights Committee, General Comment 17, (1989), para 7, in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc. HRI/GEN/1/Rev.8 (2006) at

185.
[67] Rl Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p112.
[68] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p125.
[69] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p117.
[70] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p117.
[71] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p296.
[72] Social Security Act 1991 (Cth), s

4(2).
[73] For the purpose of monitoring State Parties’ compliance with article 9 of

the ICESCR, the ESCR Committee has adopted the same categories of social

security set out in the ILO Social Security (Minimum Standards) Convention 1952

(No.102) (ILO

102).
[74] ESCR Committee, Draft General Comment 20, (2006) UN Doc.

E/C.12/GC/20/CRP.1,

p1.
[75] ESCR Committee, Draft General Comment 20, (2006) UN Doc.

E/C.12/GC/20/CRP.1,

p5.
[76] ESCR Committee, Draft General Comment 20, (2006) UN Doc.

E/C.12/GC/20/CRP.1,

p8.
[77] ESCR Committee, Draft General Comment 20, (2006) UN Doc.

E/C.12/GC/20/CRP.1,

p5.
[78] R Hodgkin and P Newell, Implementation Handbook for the Convention on the

Rights of the Child, UNICEF (2002),

p379.
[79] ESCR Committee, General Comment 14, (2000), para 9, in Compilation of General

Co