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Same-Sex: Same Entitlements: Chapter 6

Same-Sex: Same Entitlements Report


 

Chapter 6. Employment

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6.1 What

is this chapter about?

This chapter focuses on discrimination against

same-sex couples and their families in the context of conditions of employment.

Employment is fundamental to the lives of

Australian families. For many individuals, work is their major activity outside

the home, and ensures their family’s financial security.

However, workers in same-sex couples do not

always enjoy the same employment conditions as workers in opposite-sex couples.

In particular, a worker in a same-sex couple may not be guaranteed the following

work rights:

  • leave entitlements including carer’s leave

    to look after a same-sex partner, compassionate leave to grieve a same-sex

    partner and parental leave to care for a newborn child

  • travel entitlements allowing an employee to travel

    with his or her same-sex partner

  • employment allowances to help support an

    employee’s same-sex partner and children

  • workers’ compensation for an injured or

    deceased employee’s same-sex partner

  • superannuation entitlements for an

    employee’s same-sex

    partner.

This chapter explores how

employment laws discriminate against workers in same-sex couples in the first

three of these areas. Workers’ compensation is discussed in Chapter 7 and

superannuation is discussed in Chapter 13.

This chapter also discusses how discrimination

against same-sex couples in employment law breaches Australia’s human

rights obligations. The chapter ends by making recommendations as to how to

avoid future discrimination and human rights

breaches.

Specifically, this chapter addresses

the following questions:

  • How are employment conditions established for Australian

    workers?

  • Can same-sex and opposite-sex couples access the same

    leave entitlements?

  • Do federal government employees in same-sex and

    opposite-sex couples enjoy the same work conditions?

  • Are same-sex couples protected from general

    discrimination in the workplace?

  • Does employment legislation breach human

    rights?

  • What must change to ensure equal access to work-related

    benefits for same-sex couples?

6.2 How

are employment conditions established for Australian

workers?

The rights enjoyed by a worker in a same-sex couple

will depend on where that person works and how their work conditions are

established.

Work conditions may be

established by any one or more of the following mechanisms:

  • an award
  • a collective agreement
  • an Australian Workplace Agreement (AWA)
  • a common law contract
  • a basic employment

    contract.[1]

The

new federal WorkChoices scheme (introduced by amendment to the Workplace

Relations Act 1996 (Cth)) protects five minimum conditions of

employment.[2] Most Australian workers

are covered by WorkChoices.[3] But

some workers remain within state industrial relations systems and in some areas

of the public service there are specifically legislated work

conditions.[4]

The

five minimum conditions under WorkChoices are set out in the Australian Fair Pay

and Conditions Standard (the WorkChoices

Standard).[5] Three of those minimum

conditions guarantee leave entitlements:

  • four weeks paid annual

    leave[6]

  • ten days paid personal or carer’s leave per

    year[7]

  • 52 weeks unpaid parental

    leave.[8]

Carer’s

leave can be paid or unpaid leave. It is taken by an employee to provide care or

support to a member of his or her ‘immediate family’ or household

because of personal illness or injury, or an unexpected

emergency.[9]

Compassionate

leave is paid leave. It is taken by an employee:

  • to spend time with a member of his or her

    ‘immediate family’ or household who has a personal illness or injury

    that poses a serious threat to life

  • after the death of a member of his or her

    ‘immediate family’ or

    household.[10]

Parental

leave includes maternity leave, paternity leave and adoption leave. It is taken

by an employee who has just had a baby or adopted a

baby.

The following sections explain where

there is discrimination against workers in same-sex families regarding

carer’s leave, compassionate leave and parental leave.

6.3 Can

same-sex and opposite-sex couples access the same leave

entitlements?

The

WorkChoices Standard does not protect the leave entitlements of an employee in a

same-sex relationship in the same way as it protects an employee in an

opposite-sex relationship.

However, awards and

agreements can provide greater entitlements than those protected by WorkChoices.

So the leave rights of some workers in same-sex families may be protected under

individual awards and agreements.

For those

workers still covered by state industrial laws, in most cases, same-sex and

opposite-sex families enjoy the same

rights.

The following sections explain why

there are these differences in protections for same-sex couples.

6.3.1 WorkChoices

does not protect carer’s and compassionate leave for same-sex families

Carer’s leave and compassionate leave are both

protected under the WorkChoices Standard so that an employee can take leave to

care or grieve for ‘immediate family’ or a member of the

employee’s household.[11]

(a) ‘Immediate

family’ excludes a same-sex family

The definition of ‘immediate family’ under

the WorkChoices legislation includes a spouse, as well as a child, parent,

grandparent, grandchild or sibling of the employee, or of the spouse of the

employee.[12]

As discussed below, the definition of

‘spouse’ and ‘child’ does not incorporate a same-sex

partner or lesbian or gay co-parent. Therefore, the concept of ‘immediate

family’ does not incorporate a same-sex family.

(b) ‘Spouse’

and ‘de facto spouse’ exclude a same-sex partner

The definition of ‘spouse’ includes a

‘de facto spouse’ (as well as a ‘former spouse’ and

‘former de facto

spouse’).[13]

The definition of ‘de facto

spouse’ is explicitly restricted to a person of the opposite

sex.[14] This means that a same-sex

partner cannot be a ‘de facto spouse’ and therefore will not qualify

as a ‘spouse’. Since a same-sex partner cannot be a

‘spouse’, he or she is not a member of an employee’s

‘immediate family’.

(c) ‘Child’

excludes the child of a lesbian co-mother or gay co-father

The WorkChoices legislation defines

‘child’ to include an adopted child, a step-child, an ex-nuptial

child and an adult child.[15] The

legislation does not define who is a

‘parent’.

Chapter 5 on Recognising

Children notes that when children are born to a lesbian or gay couple their

parents may include a birth mother, lesbian co-mother, birth father or gay

co-father(s).[16]

Chapter 5 also explains that definitions of

‘child’ like that in the WorkChoices legislation will generally include the child of a birth mother or birth father but exclude the child of a lesbian co-mother or gay co-father(s) (in the absence of

adoption).[17]

This means that the child of a lesbian

co-mother or gay co-father will not be included in the definition of

‘immediate family’.

(d) A

same-sex partner may be a member of an employee’s

household

A ‘member of the employee’s

household’ is not defined anywhere in the WorkChoices legislation.

Submissions from the Australian Chamber of

Commerce and Industry and a law academic, Anna Chapman, indicate that for the

purposes of determining leave, this phrase covers any person ordinarily living

with the employee, including a same-sex

partner.[18]

Since a same-sex partner is not considered

‘immediate family’, the WorkChoices Standard will only protect the

right to carer’s or compassionate leave if the same-sex partners are

living together. Opposite-sex couples are not restricted in this

way.

The Inner City Legal Centre summarised the

problems caused by requiring cohabitation as follows:

... there will be circumstances where the child in need of

care is not a member of the household of the co-mother. For example, the

co-mother may be separated from the birth mother and the child lives with the

birth mother, or the child is an adult and lives in a separate

household.[19]

ACON

talked about the stress of proving cohabitation before being able to take

carer’s leave:

It should also be noted that having to prove to an

employer that you live in the same household as your partner, rather than

automatically receiving leave as the person’s spouse, causes additional

stress and burden at an already stressful

time.[20]

(e) An

employee in a same-sex relationship has limited rights to carer’s and

compassionate leave

In summary, the definitions of ‘immediate

family’, ‘spouse’ and ‘child’ discriminate against

same-sex families in the context of leave entitlements as

follows.

An employee in a same-sex couple is

only guaranteed leave to care for a partner if he or she is living with that

partner. An employee in an opposite-sex couple has an automatic right to take

leave to care for his or her partner.

A gay or

lesbian employee is not guaranteed leave to care for a former same-sex partner.

An employee in a same-sex couple is not

guaranteed leave to look after his or her partner’s immediate family. For

example, there is no guaranteed leave to care for a same-sex partner’s

sick mother, unless the mother is living with the couple. For example, the

Inquiry heard that:

When my partner’s mother passed away, after both of

us caring for her in her final days, I was only offered annual leave to arrange

her funeral and for the period after her funeral. Her brother unexpectedly

passed away three weeks after this, I was only given half a day to attend the

funeral, I couldn’t even take an annual leave

day.[21]

An

employee in an opposite-sex relationship has an automatic right to take leave to

care for his or her partner’s immediate family.

A woman in a lesbian couple will only be

entitled to carer’s leave or compassionate leave regarding her birth

child. The lesbian co-mother will not be entitled to

leave.

A man in a gay couple will only be

entitled to carer’s leave or compassionate leave regarding his birth

child. The gay co-father will not be entitled to leave.

Even where a member of a same-sex couple has

an entitlement to carer’s leave, he or she may not know of his or her

entitlements or may be unwilling to insist on the entitlement being

respected.

Sue McNamara and Leanne Nearmy

described the impact of carer’s leave restrictions as follows:

[O]ne of us had to have surgery in 2004, and the other

needed to take some time off work to provide post-operative care. This leave

could not be taken as family carer leave, as would be the case for an opposite

sex

partner.[22]

Another

couple told the Inquiry:

My (same-sex) partner suffers a long term debilitating

illness and as I am the sole wage earner in our household/family it is very

difficult for me to take time off to care for her. On those occasions when I do

need to stay home to care for her, to take her to doctor appointments, or to the

hospital, I have to use my annual leave as she is not legally recognized as my

partner, therefore I am not entitled to carers leave. Our family is at a

financial disadvantage because of this. In addition, using my annual leave in

this way means I am left with less days off to spend with my family on happier

occasions – like holidays, which leaves me more exhausted than I would

like.[23]

6.3.2 WorkChoices

does not protect parental leave for both same-sex parents

Parental leave includes maternity leave, paternity

leave and adoptive leave.

The purpose of

parental leave is to provide time to both parents to care for a newborn, or

newly-adopted, child.

As discussed in Chapter 5

on Recognising Children, very few gay and lesbian couples can successfully adopt

a child. So the question of adoptive leave is unlikely to arise for same-sex

couples.[24] If a same-sex couple

does successfully adopt, there is no discrimination in the application of

adoptive leave.

However, ever-increasingly,

lesbian and gay couples are having a child through assisted reproductive

technology (an ART child).

(a) A

lesbian co-mother is not entitled to parental leave

Where a lesbian couple has a child, the birth mother

will be entitled to maternity leave. The only leave theoretically available to

the lesbian co-mother will be ‘paternity’

leave.[25]

However, paternity leave is only available to

a ‘male employee’ who is the ‘spouse’ of a woman giving

birth.[26] A female partner of the

birth mother is neither male, nor a ‘spouse’ under the

legislation.[27]

(b) Neither

member of a gay couple is entitled to paternity leave

As discussed in Chapter 5, a gay couple may use a

surrogate birth mother or enter an arrangement with a female friend to have a

child through ART. If this occurs, neither of the men will be the

‘spouse’ of the woman giving birth so they will not be guaranteed

parental leave.

(c) Parental

leave guarantees do not allow flexible parenting arrangements for same-sex

couples

Several submissions observed that parental leave

provisions do not provide sufficiently flexible caring possibilities for the

diverse range of same-sex

families.[28]

A gay father of a child, Anthony Brien, notes

that current parental leave provisions do not adequately meet the needs of

same-sex co-parenting arrangements:

Co-parenting is another method and this introduces all

sorts of complications when a child may have a biological mother and father as

well as a non-biological mother and father if each of the biological parents are

same sex partnered. The child could live part time in each of two households and

there are four parents. So how does the law deal with things such as who is

entitled to parental leave (can it be shared amongst all 4 parents if they are

all interested in having a parenting role in the child's

life?).[29]

The

ACTU argues that it is not always the biological father who is the support

person for a birth mother:

...that may be the mother’s same sex partner but it

might be grandma... [The purpose of parental leave should focus on] who is

providing the care to infants and the support to a mother at the time of the

birth of a

child.[30]

The

ACTU also suggests that:

The purpose of parental leave is to ensure adequate care

and support for mothers and their new-borns at and following the birth of a

child, and to provide time off from work to ensure adequate care of infants and

toddlers...

A more

inclusive regime could be developed which allocates leave to a primary and

secondary caregiver, which would give families more flexibility, regardless of

the nature of the relationship between the child and the

care-givers.[31]

(d) Denying

parental leave to same-sex parents can have a serious impact on the family

As mentioned above, neither the lesbian co-mother nor

the gay co-father(s) of a child will be guaranteed access to parental leave upon

the birth of a child.[32]
This may result in a lesbian co-mother or gay

co-father(s) either resigning or giving up the opportunity of providing primary

care for a young child.[33]

One lesbian parent, Janet Jukes, told the

Inquiry about her decision to resign:

Nine months after Hannah was born I resigned from my work

to care for her full time while Marion returned to work. If we were in a

heterosexual relationship I would have been entitled to take unpaid parental

leave up to her first birthday under my award. In my case it was up to the

discretion of my employer if they would allow unpaid

leave.[34]

6.3.3 WorkChoices

non-discrimination provisions do not help same-sex families enjoy leave

entitlements

As discussed above, the WorkChoices legislation

discriminates against employees in same-sex relationships regarding leave

entitlements.

A number of submissions to the

Inquiry pointed out that this discrimination is inconsistent with the stated

objectives of the WorkChoices

legislation.[35]

Those objectives include the following

anti-discrimination measures:

  • assisting employees to balance their work and

    family responsibilities effectively through the development of mutually

    beneficial work practices with

    employers[36]

  • respecting and valuing the diversity of the

    workforce by helping to prevent and eliminate

    discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental

    disability, marital status, family responsibilities, pregnancy, religion,

    political opinion, national extraction or social

    origin.[37]

The

WorkChoices legislation also contains specific anti-discrimination measures

which seek to eliminate discrimination in employment on the grounds of sexual

orientation.[38]

However,

it seems that these provisions provide little practical protection for same-sex

couples regarding workplace conditions.

6.3.4 Some

state workplace laws protect leave entitlements for same-sex couples and

parents

Some employees who are not covered by WorkChoices are

covered by state workplace laws.

(a) States

where same-sex families do enjoy protection in leave entitlements

Under

Queensland,[39] South

Australian,[40] and Western

Australian[41] workplace laws,

same-sex partners receive the same leave entitlements as opposite-sex partners,

including parental leave and carer’s

leave.

The Tasmanian Industrial Relations

Act 1984 is unclear about whether a same-sex partner or parent can access

carer’s leave.[42] But

same-sex parents are entitled to parental

leave.[43]

(b) States

where same-sex families do not enjoy protection in leave entitlements

NSW industrial relations legislation does not provide

for carer’s leave. However, those same-sex couples covered by a NSW Award

can access carer’s leave.[44]

Paternity leave is only available to the male

partner of a woman who has given birth under NSW

law.[45] The Gay and Lesbian Rights

Lobby (NSW) explains that this discrimination:

...significantly limits the ability of co-parents who are

covered under the Act as employees from taking on the role as primary

care-giver. Lesbian co-parents are made to choose between leaving their

employment to take on the primary care-giver role, or give up the opportunity

all-together.[46]

In

the ACT, the NT and Victoria, federal industrial relations laws still

apply.[47] Thus, the discrimination

under WorkChoices legislation will affect employees in same-sex relationships in

these states.

In addition, the ACT

Attorney-General observed that under the Parental

Leave (Private Sector Employees) Act 1992 (ACT)

parental leave is not available to a lesbian co-mother of an ART

child.[48]

However,

the Equal Opportunity Commission of Victoria informed the Inquiry that access to

leave is covered by the Equal Opportunity Act 1995 (Vic).[49] This legislation and

other state anti-discrimination provisions still seem to protect against

discrimination contained within WorkChoices

legislation.[50]

6.3.5 Workplace

agreements can protect leave entitlements for same-sex families

Workplace agreements include both collective

agreements and individual agreements (AWAs). These agreements must contain the

employment entitlements protected by the WorkChoices Standard. However, they can

include conditions better than those contained in the WorkChoices Standard.

(a) Examples

of collective agreements protecting leave entitlements for same-sex

families

There are good examples of collective workplace

agreements which treat same-sex and opposite-sex couples and parents in exactly

the same way with regard to leave provisions. Some of the examples provided to

the Inquiry include:

  • Amnesty International

    Agreement[51]

  • Canon Industries

    Agreement[52]

  • Harvest Fresh Cuts Pty Ltd Certified Agreement

    2001. This agreement explicitly defines ‘spouse’ as including a

    spouse of the same

    sex.[53]

  • University of Western Australia Agreement. This

    agreement explicitly says that ‘partner’ means same-sex partner and

    refers to ‘parental’ leave rather than ‘maternity’

    leave.[54]

(b) Not

all collective agreements protect leave entitlements for same-sex

families

Although some workplace agreements contain good leave

provisions, there is no legislative obligation for agreements to contain

provisions treating same-sex and opposite-sex couples in the same way.

As a result, collective agreements vary as to

whether they give equal access to leave for same-sex couples:

Through many collective agreements the ASU [Australian

Services Union] has been able to establish rights for same-sex couples under

provisions such as carer’s leave and parental leave. But these provisions

are the exception to the

rule.[55]

One person in a same-sex relationship told the Inquiry

about the insecurity caused by the absence of legislative guarantees:

In the workplace, we are currently not discriminated

against, but that is because our respective certified agreements recognise

same-sex couples in the taking of carer's and bereavement leave etc. When either

one or both of us moves to a different workplace, we are not guaranteed those

benefits. This puts constraints on our career and work

choices.[56]

(c) Individual

workplace agreements may protect same-sex couples

The new WorkChoices system encourages the making of

individual agreements between employers and employees. The government’s

WorkChoices website asserts that:

Bargaining at the workplace level is particularly suited

to tailoring working arrangements in ways that assist employees to balance work

and family

responsibilities.[57]

The

Australian Chamber of Commerce and Industry (ACCI) argues that although the

WorkChoices Standard does not protect employees in a same-sex relationship

regarding entitlements to parental leave:

...it must be remembered that an employer and an employee

can agree to more generous terms than that provided for in the Standard.

Therefore, it is possible for same-sex entitlements to be contained in

agreements.[58]

One

lesbian woman explained that her employer was willing to offer full access to

parental leave irrespective of whether she was the birth mother:

My employer is willing to offer me 1 week (2 days paid, 3

days paid via leave accrued) parenting leave on the arrival of our child and 51

weeks un-paid maternity leave if I am the primary carer for our child regardless

of biological

relationship.[59]

Another

lesbian co-mother explained that she was able to negotiate short parental leave

but not long parental leave:

In addition as I am organising time off from 2 part-time

positions to be with Sarah and our babies, I have become aware of problems with

the agreement in one workplace which only allows Parental Leave for a male

spouse as defined by the terms of the agreement. Apart from the fact that it is

only one week, I have been able to access this leave because I have an excellent

manager who is willing to give it to me. The lack of access to longer paid leave

and lack of acknowledgment of my role as Sarah's partner in parenting of the

babies adds another financial burden to our new

family.[60]

ACCI

also argues sexuality is a private and individual matter, which is better suited

to an individual bargaining process, rather than a collective bargaining

process:

The role of statutory individual bargaining agreements

(AWAs) is important on a contentious issue such as the recognition of same sex

relationships. Given that these are often very private and individual matters,

and given that collective agreements can only be made by a majority vote of

employees, then in many workplaces a majority may not support recognition of

same sex relationships for employment purposes.[61]

(d) Individual

workplace agreements may place too much negotiating pressure on same-sex

couples

The Australian Services Union argues that individual

agreement-making for a person in a same-sex relationship is an onerous

task.[62] This may be because of a reluctance to disclose sexuality in an environment

where there is no legislated right to equal treatment, and where there may be

some discriminatory attitudes.

One person told

the Inquiry about her concerns about being sufficiently confident to negotiate

for equal parental leave:

[The employment contract at my workplace] gives us an

entitlement to ‘non-birth parent leave’ as opposed to

‘paternity leave’. There is no unnecessary gender-specific language,

like father, husband or wife... these entitlements are important and we’re

grateful for them... I was also grateful for the people who came before me to

negotiate that agreement. What happens when we have to negotiate individual

agreements? Do we feel confident and safe to negotiate ‘non-birth parent

leave’ and similar on our

own?[63]

6.3.6 Some

same-sex couples do not access leave because they do not want to ‘come

out’ in the workplace

Even

where state laws, awards or collective agreements allow for carer’s or

parental leave, some ‘[p]eople are scared to apply for carer’s leave

because they have to out themselves to their employers and to their

workmates’.[64]

Eilis

Hughes explains this fear by comparing the atmosphere in her workplace with the

work environment in her partner’s workplace:

I am lucky to work in a progressive workplace which offers

both maternity leave and non-birth parent leave. When the time comes for us to

have our child, I will be able to take leave at that time. My partner, on the

other hand, works for a small business owned by a family with conservative

values. She expects not to be granted parental leave and is in fact nervous

about the impact of coming out to her employers under these circumstances. While

anti-discrimination laws prevent her from being sacked directly for her

sexuality, it is now easy for her employer to find another reason to sack her if

they don’t agree with her values or if they don’t wish to grant her

parental leave.  If our relationship was recognised formally by the

government then we would have more protection in these

circumstances.[65]

But even more important than the entitlements is the tone

or the culture that they set for my workplace. They make our family visible and

equal. This meant that I knew before I even sat at my desk on my first day at

work that it was going to be ok to be open and proud about my family at work. I

put Kristen’s photo on my desk and my boss smiled and said, ‘Is that

your family?’ I didn’t have to make that coming out

decision.[66]

The

fear of discrimination in the workplace can have a variety of consequences,

including:

  • not requesting leave at all
  • taking annual leave instead of carer’s

    leave

  • taking sick leave instead of carer’s

    leave.

The Australian Services Union

described the problem as follows:

A large number of same-sex couples who don’t want to

declare their sexuality may well feign illness rather than say that

they’re caring for someone, which is in fact quite common amongst other

workers. Mothers with young children will often feign personal illness rather

than say it’s their children for fear of discrimination on the grounds of

their parenting

responsibilities.[67]

Employees wishing to take annual leave or join the

Christmas roster, or indeed deal with school holidays in an environment where

due to the number of employees, rosters, or allotment of holiday ballots take

place, are often reluctant to step forward and identify that they have parental

obligations and need to participate in school holiday

scheduling.[68]

The

Australian Services Union also told the Inquiry that an unwillingness to

disclose sexuality affects access to compassionate leave:

Bereavement leave also delivers the same challenges for

disclosure in the workplace without any form of instrumental protection.

Attempting to attain bereavement for the loss of your partner’s parent

becomes extremely difficult if not impossible for you [i]f you have not

disclosed your status in the workplace [or] if your status is not embraced and

accepted in the workplace. Then you are less likely to ask for such a right in a

regime of the quick

dismissal.[69]

6.3.7 Legislative

protection gives confidence to employees in same-sex couples

Several submissions argued that legislative protection

of the rights of same-sex couples is fundamental to an employee’s

willingness to disclose his or her relationship and claim his or her

entitlements to adequate leave from employment:

If there was a legislative benchmark or right given and

that was reinforced with the strength of a collectively bargained agreement then

an employee should feel no fear in coming forward and be able to engage in

balancing their work and family

life.[70]

There is some concern that even though the entitlement to

take leave exists [as a member of a household], employees may not use such leave

as they are not willing to make their personal circumstances known at work.

Until and unless there is equal recognition before the law for same-sex couples

in all areas, this may continue to be the

case.[71]

Recognition of rights for same-sex couples is limited in

our experience. It is limited for two reasons: one that individuals are too

afraid to raise any such issues that are affecting them directly and second,

that if and when their issues are raised there is not the law, regulation,

policy or understanding to support their

claims.[72]

6.4 Do

federal government employees in same-sex and opposite-sex couples enjoy the same

work conditions?

Many federal employees work under collective or

individual agreements. Some of those agreements will give equal access to

employment conditions for opposite-sex and same-sex couples, others will

not.

However, there is federal legislation

determining specific work conditions for particular groups of federal

employees.

This section discusses:

  • a range of federal government agency collective

    workplace agreements

  • travel entitlements for members of the federal

    Parliament, public office holders, judicial and statutory office

    holders

  • employment benefits for members of the Australian

    Defence Force (ADF).

6.4.1 Some

federal government workplace agreements do not discriminate against same-sex

employees

The employment conditions of most federal government

employees are determined by comprehensive certified agreements rather than by

legislation.[73] These agreements

can include couple and family related employment benefits and entitlements,

including travel allowances, housing allowances, loans, health insurance and

education.

(a) Examples

of federal government collective agreements protecting the rights of employees

in same-sex couples

Various federal government departments informed the

Inquiry that their collective agreements do not discriminate against employees

in same-sex relationships, including:

  • AusAID Collective Agreement

    2006-2009[74]

  • Department of Health and Ageing, People

    Leadership and Performance Improvement

    2004-2007.[75]

The

Community and Public Sector Union (CPSU) also gave the Inquiry examples of

federal agreements that include same-sex partners in entitlements, including the

Centrelink Certified Agreement and the Northern Land Council Certified

Agreement.[76]

(b) Concerns

about using collective agreements to protect equality for same-sex

couples

The Inquiry heard concerns about the impact of the

federal agreement-making processes on same-sex couples in the federal public

service.

The CPSU notes that the Department of

Employment and Workplace Relations (DEWR) produces Policy Parameters and

Associated Guidelines for agreement-making. These guidelines prohibit the use of

discriminatory terms, including ‘sexual preference’ in agreements.

The CPSU recommend that a new parameter be developed to provide:

...a clear and unequivocal statement that public sector

employers, regardless of the employment instrument, must not allow for any form

of financial or employment-related discrimination on the basis of race, colour,

gender, sexual preference, age, disability, marital status, family

responsibilities, pregnancy, religion, political opinion, national extraction,

membership or non membership of a trade union or social

origin.[77]

Furthermore,

the CPSU expressed concern that the expression of work conditions is starting to

move from collective agreements to government department policy documents. This

may have a detrimental impact on same-sex couples:

In conducting this sample audit, it became apparent that a

number of public sector agencies have transferred entitlements out of collective

/ certified agreements and into agency policy documents. For example the

Department of Foreign Affairs and Trade (DFAT) have transferred all relocation

expense entitlements in the DFAT Human Resource Manual (HRM), and the definition

of family member for personal / carer’s leave is also within the HRM... As

reported above, this transfer out of the agreement does not allow for public

access or scrutiny of these entitlements and could lead to changes in employee

entitlements which could establish discriminatory

provisions.[78]

6.4.2 Same-sex

partners of members of the federal Parliament can only access some travel

entitlements

The travel entitlements of members of the federal

Parliament are determined by a combination of the conditions set out in Remuneration Tribunal Determination 2006/18: Members of Parliament –

Entitlements (Determination

2006/18)[79] and the Parliamentary Entitlements Act 1990 (Cth) (Parliamentary Entitlements

Act).

Determination 2006/18 generally treats

same-sex and opposite-sex partners in the same way. But the Parliamentary

Entitlements Act does not.

(a) Same-sex

partners can access most travel entitlements under Determination

2006/18

Same-sex partners are eligible for most (but not all)

of the travel entitlements set out in Determination 2006/18. This is because the

provisions for travel entitlements allow a ‘spouse’ or

‘nominee’ to accompany the member of the federal

Parliament.

(i) A

same-sex partner cannot be a ‘spouse’

Determination 2006/18 defines ‘spouse’ so

that it only includes the opposite-sex married or de facto partner of the member

of the federal

Parliament.[80]

(ii) A

same-sex partner can be a ‘nominee’

A ‘nominee’ is defined as ‘a person

nominated by the senator or member and approved at the discretion of the Special

Minister of State’.[81] This

definition could include a same-sex partner, but the same-sex partner must be

approved by the Special Minister (unlike an opposite-sex de facto

partner).

(iii) A

‘nominee’ is entitled to a range of travel

entitlements

A ‘spouse’ or ‘nominee’ is

entitled to:

  • travel equivalent to the value of nine business

    class return trips to Canberra from the principal place of

    residence[82]

  • travel equivalent to the value of three business

    class return interstate trips per

    year[83]

  • travel in order to attend an official government,

    parliamentary or vice-regal function as an

    invitee[84]

  • car transport for specific

    purposes[85]

  • members entitled to costs of overseas travel for

    study will be covered for the costs of an accompanying

    spouse.[86] This entitlement may be

    available to a nominee at the discretion of the Special Minister of

    State.[87]

(iv) Some

travel entitlements are only available to a ‘spouse’

There are some travel entitlements under Determination

2006/18 which are not available to a ‘nominee’, but are available to

a ‘spouse’. These entitlements will not be available to a same-sex

partner. For example, senators and members who are entitled to reimbursement for

the cost of a hire car and charter aircraft may be accompanied by a

‘spouse’, but not a

‘nominee’.[88]

(v) The

‘nominee’ category may not be appropriate recognition of a same-sex

partner

Former Senator Brian Greig drew the Inquiry’s

attention to discrimination he experienced when his partner became a member of

his staff.

His partner’s travel

entitlements were withdrawn as a staff member could not also be a

‘nominee’. This rule did not apply to opposite-sex partners who were

also staff members.

The Remuneration Tribunal

found in Senator Greig’s favour and travel entitlements were restored.

Senator Greig argues that the ‘nominee’ category is an inappropriate

mechanism for recognising a same-sex partner. He argues that all members and

senators should be able to register a

‘partner’.[89]

(b) Same-sex

partners cannot access travel entitlements in some other Remuneration Tribunal

determinations

There are some travel entitlements for partners which are

set out in specific determinations made by the Remuneration Tribunal. At least

one of those determinations does not extend the benefits to same-sex partners.

That determination provides that a Minister or office holder accompanied by a

spouse can access an additional $10 per night travelling

allowance.[90]

(c) Same-sex

partners cannot access travel entitlements under the Parliamentary Entitlements

Act

The Parliamentary Entitlements Act sets out

additional entitlements available to members of federal Parliament and their

partners. However, a partner will only have access to those entitlements if he

or she qualifies as a ‘spouse’ under the legislation and the

definition of ‘spouse’ does not allow for a same-sex

partner.

(i) A

same-sex partner cannot be a ‘spouse’

The Parliamentary Entitlements Act defines a

‘spouse’ as including ‘a person who is living with the member

as the spouse of the member on a genuine domestic basis although not legally

married to the member’.[91]

As discussed in Chapter 4 on Recognising

Relationships, the use of the word ‘spouse’ within this definition

will exclude a same-sex partner.[92]

(ii) A

same-sex partner cannot access travel benefits available to a

‘spouse’

A same-sex partner will be excluded from the following

range of travel entitlements available to a ‘spouse’:

  • for overseas travel, a member may downgrade the

    class of travel and use the difference in cost to offset the fare of an

    accompanying spouse[93]

  • the cost of travel for a spouse accompanying a

    Senior Officer travelling on official business either overseas or within

    Australia[94]

  • the cost of travel for a spouse accompanying a

    member travelling overseas, if the Prime Minister

    approves[95]

  • the cost of travel for a spouse accompanying an

    Opposition Office Holder or Presiding Officer travelling in

    Australia[96]

  • the cost of charter transport for a spouse

    accompanying the leader of a minority

    party.[97]

(d) Same-sex

partners do not qualify for a Life Gold Pass

The Members of Parliament (Life Gold Pass) Act

2002 (Cth) provides a specified number of free domestic air trips per year

for:

  • a sitting or former member of the federal

    Parliament

  • his or her spouse
  • his or her widow or

    widower.[98]

The

legislation defines ‘spouse’ as ‘the person's legally married

husband or legally married

wife’.[99] The legislation

defines a ‘widow’ and ‘widower’ to be a surviving

‘spouse’.[100] Thus,

this legislation excludes a partner in an opposite-sex de facto couple as well

as a same-sex couple.

6.4.3 Same-sex

partners of judicial and statutory office holders can only access some travel

entitlements

The Judicial and Statutory Officers (Remuneration

and Allowances) Act 1984 (Cth) gives judicial or statutory office holders

the right to claim additional travel allowance when accompanied by a

spouse.[101] There is no

definition of spouse in the legislation. As explained in Chapter 4 on

Recognising Relationships, it is extremely unlikely that a same-sex partner will

qualify as a spouse in the absence of a definition. Thus, a judicial or

statutory office holder cannot claim a spouse travel allowance when accompanied

by a same-sex partner.

However, there are also

travel entitlements provided by Determination 2004/03 of the Remuneration

Tribunal. That Determination provides travel entitlements regarding a

‘partner’. The definition of ‘partner’ includes same-sex

and opposite-sex couples alike.

Thus, judicial

and statutory office holders in same-sex couples will receive the following

entitlements under the Determination:

  • An office holder may travel with his or her

    partner for purposes relating to official business at Commonwealth expense

    (within Australia or

    overseas).[102]

  • Where the Commonwealth meets the travel costs of

    the office holder’s partner the difference between the cost of a single

    and double room is also

    paid.[103]

6.4.4 Same-sex

partners of public office holders can access all travel

entitlements

The travel entitlements for the partner of a public

officer holder (including a range of senior jobs in Commonwealth agencies) and

principal executive officers are set out in determinations of the Remuneration

Tribunal.[104]

The

most recent determination gives travel entitlements to the ‘spouse’

and ‘partner’ of an office

holder.[105] A

‘partner’ is defined as ‘any person who lives with the office

holder on a genuine domestic basis as the partner of the office

holder’.[106] This

definition will include a same-sex and opposite-sex partner on the same basis.

Consequently, same-sex partners of public

office holders receive equivalent travel entitlements to those available to

opposite-sex partners.

6.4.5 Same-sex

partners of Department of Foreign Affairs and Trade employees can access all

travel entitlements

An Administrative Circular issued by the Department of

Foreign Affairs states that a de facto partner can accompany an officer on an

overseas posting at official expense. The circular is quite explicit about

including same-sex couples:

[A] de facto relationship may be deemed to exist where two

people regardless of their gender, not being legally married, have a mutual

commitment to living together on a genuine domestic basis, to the exclusion of

all

others.[107]

A

child normally living with the couple will also be entitled to accompany them if

less than 18 years

old.[108]

6.4.6 Same-sex

couples in the Australian Defence Force can access most work entitlements

The Secretary and the Chief of the Australian Defence

Forces (ADF) can issue instructions covering the various conditions of service

for ADF employees, subject to and in accordance with any directions of the

Minister.[109]

(a) ‘Spouse’

excludes a same-sex partner

The definition of dependant in the ADF Pay and

Conditions Manual includes a ‘spouse’, defined as ‘a person

who is married to the member in accordance with the Marriage Act

1961’.[110] This

definition excludes both opposite-sex de facto couples and same-sex couples,

both of whom are recognised under the definition of ‘interdependent

partner’.

(b) ‘Interdependent

partner’ includes a same-sex partner

In 2005, the ADF amended its instructions to include

an ‘interdependent partner’ as a person in a recognised relationship

with an ADF employee.[111] The

definition of ‘interdependent partner’ includes:

a person who, regardless of gender, is living in a common

household with the member in a bona fide, domestic, interdependent partnership,

although not legally married to the

member...[112]

Thus,

same-sex and opposite-sex partners are both categorised as an

‘interdependent

partner’.[113]

The ADF instructions set out strict criteria

for recognising an interdependent partnership, including:

  • the member and his or her partner must have lived

    together for at least 90 consecutive days and maintained a common

    household[114]

  • the couple must complete an application form and

    a statutory

    declaration[115]

  • the couple must annex four items of documentary

    evidence, drawn from a compulsory

    list.[116]

Professor

Jenni Millbank observes that these requirements contrast with all other federal

laws which recognise de facto relationships without any formal step of

registering the relationship with

authorities.[117]

The

Department of Defence informed the Inquiry that the interdependency category

provides greater flexibility and gives more scope for an inclusive approach to

relationships than the definitions of ‘spouse’ or ‘de facto

partner’ used in other federal

laws.[118] However, it is possible

for the ADF to retain discretion, whilst treating opposite-sex de facto and

same-sex couples in the same manner as married couples.

(c) An

‘interdependent partner’ is entitled to a range of benefits

The ADF Pay and Conditions Manual covers a range of

employment benefits for an ADF employee and his or her interdependent partner,

including:

  • relocation

    allowances[119]

  • travel costs associated with

    relocation[120]

  • temporary accommodation

    allowances[121]

  • entitlement to a service

    residence[122]

  • leave entitlements including compassionate,

    parental and carer’s

    leave[123]

  • education and training

    benefits.[124]

Same-sex

and opposite-sex de facto couples have equal access to these entitlements

because of the definition of ‘interdependent partner’ in the ADF

instructions.

The

ADF Pay and Conditions Manual also provides that both members of a couple can

take parental leave at the birth of a child irrespective of the gender of the

parents.[125] Thus, the lesbian co-mother and gay co-father of a child would be entitled to

leave if in a relationship with the birth parent.

(d) Some

benefits are not available to same-sex partners

Under the Defence Force (Home Loans Assistance) Act

1990 (Cth), ADF employees are entitled to low-interest home loans if they

own an interest in a house that:

  • is more than a half-interest; or
  • when added to the interest of a

    ‘spouse’ or ‘child’, is more than a

    half-interest.[126]

The definition of

‘spouse’ does not include a same-sex

partner.[127] So an ADF member who

buys a house as a joint tenant with a same-sex partner is not eligible for the

loan. To qualify for the entitlement, the ADF member would have to:

  • buy the house in his or her own name; or
  • buy more than half the house as a tenant in common with

    his or her same-sex partner.

An ADF

member in an opposite-sex couple can buy a house jointly with a partner and

still qualify for the subsidised loan.

The

definition of ‘child’ includes ‘a child, step-child or legally

adopted child of the

person’.[128] As discussed

in Chapter 5 on Recognising Children, definitions of ‘child’ such as

this will generally include the child of a birth mother or birth father

but exclude the child of a lesbian co-mother or gay co-father.

Some provisions in the Act also rely on a

definition of ‘family member’, which excludes a same-sex partner and

his or her child.[129] This may

have a negative impact on how the loan scheme applies in relation to same-sex

families.[130]

Further, if the ADF member dies, the

subsidised loan remains available to his or her surviving

spouse.[131] This benefit is not

available to a surviving same-sex partner because the same-sex partner of an ADF

member is not included in the definition of ‘widow’ or

‘widower’.[132]

The

ADF informed the Inquiry that the legislation governing this entitlement is

currently under

review.[133]

6.5 Are

same-sex couples protected from general discrimination in the

workplace?

Many people in same-sex couples described to the

Inquiry their experiences of discrimination in the

workplace.[134] The

Inquiry’s Terms of Reference do not extend to investigating individual

cases of workplace discrimination. However, it is clear that a discriminatory

workplace environment (be it actual or perceived) can have a strong impact on

whether a person in a same-sex relationship is willing to assert or negotiate

his or her workplace entitlements.

6.5.1 Examples

of discrimination in the workplace

The Coalition of Activist Lesbians described the

following example of harassment in a NSW government department:

A lesbian working in a NSW government department described

to me having obscene emails sent to her, including sexualised cartoons of

lesbians, pornography and at one point a sex toy was left on her desk. When she

spoke with her supervisor she received more harassment and left her place of

employment.[135]

Graeme

Moffatt told a story about a colleague who was held back from promotion because

he was gay:

Another instance that really shook me and showed me how

little things had changed in many ways was occurred to a senior colleague of

mine during my employment with [one major bank]. My colleague, [name withheld],

as an indication of the regard he was held in for his professional abilities...

was the relationship manager to the bank’s largest single customer group.

He was taken aside and advised that rumours had circulated in regards to his

sexuality. He was further advised that if any basis was found for the rumours,

it would affect his possibility for promotion. In light of this, he decided to

leave and was hired by an international bank. Many people would ask why he did

not take legal action or lodge a complaint, but I would imagine that the

financial services industry is much like any other close knit community - any

hint of non conformity is quickly spread by people seeking to advance themselves

at the expense of others trying to achieve their goals through legitimate hard

work.[136]

Several

people described their concern about ‘coming out’ in the workplace

because of the possibility of discrimination:

Some workplaces ask for your 'next of kin contact' and

then ask 'relationship to you'. I am forced to either 1. come out

or 2. put my partner as next of kin and lie about our relationship or

3. not put my partner as next of kin. I placed my partner’s Aunty as a

next of kin contact so she can contact my partner in an emergency. This means I

do not have to come out and risk my employment. However, I would prefer if they

simply did not ask about your relationship to your next of

kin.[137]

Ultimately, the pressure of hiding my relationship became

unbearable, and I resigned from the school. This had a huge financial impact on

me. I lost wages and benefits, and for a while I was in a very precarious

financial position until I found a position where I could be open about who I

am.[138]

A lesbian woman who was employed as a teacher

in a private school told the Inquiry of the long term damage discrimination has

had on her career:

Some of the other teachers were aware that I am a lesbian.

One of my superiors advised me that if any of the pupils found out I am a

lesbian, I would be sacked. I knew that the school had the power to do so, and

it made me feel very uncomfortable and insecure. I had to be very careful about

everything I said, making sure I never used the word ‘we’ when

describing any activity or event in my life. I was forced to be constantly on my

guard, in case I inadvertently implied that I had a partner or that I was in a

same-sex relationship.

This experience of discrimination continues to affect me

today. Although I relate very well with young people, I have not worked with

children since that time. This has restricted my employment options and stopped

me from pursuing work in areas that I love. This discrimination also affects the

community, because young people miss out on the positive qualities and input

that I have to offer. Young people also get inaccurate and destructive messages

when it is implied that all people are heterosexual, or when those who are not

are silenced, as I

was.[139]

6.5.2 Inadequate

protection against discrimination in federal law

Several submissions to the Inquiry express concern

about the quality of legal protection against discrimination of people in

same-sex couples.

The Equal Opportunity

Commission of Victoria notes that most states and territories provide some

degree of protection from discrimination on the grounds of

sexuality.[140] However,

protection at the federal level is limited:

...at the Federal level there are almost no effective

avenues of redress for people who experience such discrimination. The Human

Rights and Equal Opportunity Commission Act 1986 provides an extremely

limited avenue for redress for discrimination on the ground of ‘sexual

preference’, but only in relation to Commonwealth bodies and agencies and

in employment. Complainants wishing to pursue redress through this avenue may

access HREOC’s complaint-handling service only, as HREOC has no power to

make enforceable determinations in respect of complaints under the Act and

complainants have no access to a formal determination of an entitlement to

remedy by a Court. Where complaints cannot be resolved by conciliation, the only

option available is for HREOC to report its findings and recommendations to the

Commonwealth Attorney-General who is required to table the report in the Federal

Parliament.[141]

The

Australian Chamber of Commerce and Industry argues that employers are subject to

a complex array of overlapping anti-discrimination laws, including federal and

state anti-discrimination laws. They argue that employers face difficulty

in:

...trying to comply with all of the following, sometimes

incompatible and overlapping laws: Commonwealth minimum employment entitlements

(under legislation such as WR Act, or awards), Commonwealth anti-discrimination

legislation (such as the SDA Act or HREOC Act), State/Territory

anti-discrimination laws, State and Territory industrial awards and

State/Territory minimum employment

entitlements.[142]

The

Inquiry also heard arguments both for and against retention of the exemptions in

relation to employment discrimination for religious

organisations.[143]

Some

submissions to the Inquiry made general comments about the absence of federal

anti-discrimination laws protecting against discrimination on the basis of

sexual orientation.[144] Such

legislation would protect gay and lesbian employees against the discrimination

described above. It would also require amendment of employment-related laws to

remove discrimination and may assist gay and lesbian employees to assert their

rights in the workplace.

6.6 Does

employment legislation breach human rights?

This chapter identifies a number of workplace laws

which fail to protect the rights of workers in same-sex couples in the same way

as they protect the rights of workers in opposite-sex couples. It also

identifies areas where the best interests of the child of a same-sex couple are

not protected in the same way as the child of an opposite-sex

couple.

The Inquiry’s main finding is

that the definitions in federal employment legislation regarding couples and

children cause a breach of the right to equal protection of the law without

discrimination (International Covenant on Civil and Political Rights,

article 26).

This discrimination leads to

further breaches of Australia’s obligations under:

  • International Covenant on Civil and Political

    Rights (ICCPR) – articles 2(1), 2(3) (right to a remedy), 23(1)

    (protection of families).

  • Discrimination (Employment and Occupation) Convention

    1958 (ILO 111) – articles 2, 3(b)-(c) (equal opportunity in the

    workplace).

  • Convention on the Rights of the Child (CRC)

    – articles 2, 3(1) (best interests of the child), 18 (common

    responsibilities of, and assistance to, parents).

  • International Covenant on Economic Social and Cultural

    Rights (ICESCR) – articles 2(2), 7 (just and favourable work

    conditions), 10 (protection of the

    family).

These principles are

discussed in more detail in Chapter 3 on Human Rights

Protections.

6.6.1 Employment

legislation breaches the right to non-discrimination

The Inquiry finds that the following legislation

breaches the rights to non-discrimination set out in the ICCPR (article 26), ILO

111 (articles 2 and 3) and ICESCR (articles 7, 2(2)):

  • Workplace Relations Act 1996 (Cth) –

    same-sex couples are not guaranteed the same personal and parental leave as

    opposite-sex couples.

  • Parliamentary Entitlements Act 1990 (Cth) –

    members of the federal Parliament in same-sex couples are not guaranteed the

    same travel entitlements as opposite-sex couples.

  • Members of Parliament (Life Gold Pass) Act 2002 (Cth) – travel entitlements are only granted to the married spouse of

    sitting and former members of federal Parliament and same-sex couples cannot

    marry.

  • Defence Force (Home Loans Assistance) Act 1990 (Cth) – same-sex couples cannot access low-interest home loans

    available to opposite-sex couples.

6.6.2 Discrimination

in parental leave entitlements breaches the rights of children and

families

The Workplace Relations Act 1996 (Cth) does not

guarantee parental leave to the lesbian or gay co-parents of a newborn child.

This means that the child may only have the benefit of one carer in the weeks

and months after birth.

This discrimination

against the lesbian co-mother and gay co-father in the area of parental leave

results in breaches of the CRC for the following reasons:

  • The child of a same-sex couple cannot enjoy the same

    level of parental care as the child of an opposite-sex couple – this

    amounts to discrimination against the child on the basis of the status of

    his or her parents (CRC, article 2(2))

  • The child’s best interests are not a primary

    consideration – if the child’s best interests were considered, both

    parents would be entitled to leave (CRC, articles 3(1), 2(1))

  • The parental leave provisions do not recognise and

    support the common responsibilities of both same-sex parents to

    fulfil child-rearing responsibilities (CRC, articles 18,

    2(1)).

Discrimination in parental

leave entitlements also breaches those articles of the ICCPR and ICESCR which

require Australia to provide non-discriminatory protection and assistance to the

family (ICCPR, articles 23(1), 2(1); ICESCR, articles 10, 2(2)).

6.7 What

must change to ensure equal access to work-related benefits for same-sex

couples?

This chapter describes a range of workplace

legislation which discriminates against same-sex couples.

The Inquiry recommends amending the

legislation to avoid future breaches of the human rights of people in same-sex

couples.

The following sections summarise where

the problems lie and how to fix them.

6.7.1 Narrow

definitions are the main cause of discrimination

Most same-sex couples and parents in Australia are not

guaranteed the same carer’s and compassionate leave as opposite-sex

couples because of narrow definitions of ‘spouse’ and

‘child’ in the WorkChoices legislation.

Neither a lesbian co-mother nor a gay

co-father of a child is guaranteed parental leave under WorkChoices because of

the definition of ‘paternity

leave’.

Federal members of Parliament,

statutory office holders and judges in same-sex couples only sometimes get the

same travel entitlements as their opposite-sex counterparts. Again, the root

cause of the problem is a definition of ‘spouse’ which includes

opposite-sex de facto partners but not same-sex

partners.

ADF personnel in same-sex couples

mostly enjoy the same work benefits because the ADF introduced the concept of

‘interdependent partners’ which applies to both opposite-sex and

same-sex couples. However, there are still some entitlements which are only

available to a ‘spouse’ and that definition excludes a same-sex

partner.

6.7.2 The

solution is to amend the definitions and recognise both same-sex parents of a

child

Since the main problem is the narrow scope of

legislative definitions, the solution is to amend those definitions so they are

inclusive, rather than exclusive, of same-sex couples and

families.

Chapter 4 on Recognising

Relationships presents two alternative approaches to amending federal law to

remove discrimination against same-sex couples.

The Inquiry’s preferred approach for

bringing equality to same-sex couples is to:

  • retain the current terminology used in federal

    legislation (for example retain the term ‘spouse’ in the WorkChoices

    legislation)

  • redefine the terms in the legislation to include same-sex

    couples (for example, redefine ‘spouse’ to include a ‘de facto

    partner’)

  • insert new definitions of ‘de facto

    relationship’ and ‘de facto partner’ which include same-sex

    couples.

Chapter 5 on Recognising

Children sets out how to better protect the rights of the children of

same-sex couples.

Amongst other things,

Chapter 5 recommends that the federal government implement parenting

presumptions in favour of a lesbian co-mother of a child conceived through

assisted reproductive technology (ART child). This would mean that an ART child

born to a lesbian couple would automatically be the ‘child’ of both

members of the couple (in the same way as an ART child is automatically the

‘child’ of both members of an opposite-sex couple).

The following list sets out the definitions

which would need to be amended according to these suggested approaches.

The Inquiry notes that if the government were

to adopt the alternative approach set out in Chapter 4, then different

amendments would be required.

6.7.3 A

list of federal legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Defence Act 1903 (Cth)

‘child’ (no need to insert definition if the

child of a lesbian co-mother or gay co-father may be recognised through reformed

parenting presumptions or adoption laws)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (insert definition to include a

‘de facto partner’ and ‘child’)

‘member of a family’ (s 58A - no need to amend

if new definition of

‘dependant’)

Defence Force (Home

Loans Assistance) Act 1990 (Cth)

‘child’ (s 3 – no need to amend if the

child of a lesbian co-mother or gay co-father may be recognised through reformed

parenting presumptions, adoption laws or a new definition of

‘step-child’)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘family member’ (s 6 – no need to amend

if ‘spouse’ is amended and a lesbian co-mother or gay co-father and

their children may be recognised through reformed parenting presumptions,

adoption laws or a new definition of ‘step-child’)

‘spouse’ (s 3 – amend to include a

‘de facto partner’)

‘step-child’ (insert new

definition)

‘widow’ (s 3 – amend to remove gender

specific language, otherwise no need to amend if ‘spouse’ is

amended)

‘widower’ (s 3 – amend to remove gender

specific language, otherwise no need to amend if ‘spouse’ is

amended)

Judicial and Statutory Officers

(Remuneration and Allowances) Act 1984 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (insert new definition including a

‘de facto partner’)

Members of

Parliament (Life Gold Pass) Act 2002 (Cth)

‘de facto partner’ (insert new definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (s 4 – amend to include a

‘de facto partner’)

‘widow’ (s 4 – amend to remove gender

specific language, otherwise no need to amend if ‘spouse’ is

amended)

‘widower’ (s 4 – amend to remove gender

specific language, otherwise no need to amend if ‘spouse’ is

amended)

Parliamentary Entitlements Act

1990 (Cth)

‘de facto partner’ (insert new definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (s 3 – amend to include a

‘de facto partner’)

Workplace

Relations Act 1996 (Cth)

‘child’ (s 240 – no need to amend if the

child of a lesbian co-mother or gay co-father are recognised through reformed

parenting presumptions, adoption laws or a new definition of

‘step-child’)

‘de facto relationship’ (insert new

definition)

‘de facto spouse’ (ss 240, 263 – replace

with new definition of ‘de facto partner’)

‘immediate family’ (s 240 – no need to

amend if ‘spouse’ is amended and a lesbian co-mother or gay

co-father and their children may be recognised through reformed parenting

presumptions, adoption laws or a new definition of

‘step-child’)

‘paternity leave’ (s 282(1) – amend to

remove gender specific language, otherwise no need to amend if

‘spouse’ is amended)

‘spouse’ (ss 240, 263 – amend to replace

all references to ‘de facto spouse’ with ‘de facto

partner’)

‘step-child’ (insert new

definition)

6.7.4 Other

instruments to be amended

Determination 2006/14: Members of Parliament

– Travelling Allowance

‘de facto partner’ (insert new definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (insert new definition including a

‘de facto

partner’)

Determination 2006/18:

Members of Parliament – Entitlements

‘de facto partner’ (insert new definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (insert new definition including a

‘de facto partner’)

Australian Government Department of Defence, ADF Pay

and Conditions Manual

‘de facto partner’ (insert new definition)

‘de facto relationship’ (insert new

definition)

‘spouse’ (ch 1, pt 3, div 2, cl 1.3.77 –

amend to include a ‘de facto partner’)

6.7.5 A

list of state legislation to be amended

The Inquiry recommends amendment of the following

legislation:

  • Parental Leave (Private Sector Employees) Act 1992 (ACT)
  • Industrial Relations Act 1996 (NSW).

6.7.6 Anti-discrimination

legislation would help protect against general workplace

discrimination

The Inquiry recommends the introduction of federal

legislation to protect against discrimination in employment on the grounds of

sexual orientation.

Federal

anti-discrimination legislation would not only provide a legal remedy for

discrimination in the workplace, it would send a strong message to the community

as a whole that gay and lesbian employees are entitled to the same rights as any

other employee.

Federal anti-discrimination

legislation should also result in a range of consequential legislative changes

– for instance equal treatment in leave entitlements under

WorkChoices.

Anti-discrimination legislation

may also give gay and lesbian employees greater confidence to ‘come

out’ to their employer and assert their rights to leave to care for their

same-sex partner. In this regard, such legislation may also provide confidence

to gay and lesbian employees negotiating workplace agreements.


Endnotes

[1] Community and Public Sector Union (CPSU), PSU Group, Submission

135.
[2] Workplace Relations Amendment (Work Choices) Act 2005 (Cth), commenced

operation on 27 March 2006 (schs 1, 2, 4 (Items 3-24) and 5 of the Bill

commenced 27 March 2006; the remainder had already commenced on Royal Assent on

14 December

2005).
[3] See Australian Government, WorkChoices, WorkChoices and who is covered, Fact

Sheet 1, https://www.workchoices.gov.au/ourplan/publications/html/WorkChoicesandwhoiscovered.htm,

viewed 15 January

2007.
[4] Community and Public Sector Union (CPSU), PSU Group, Submission 135. See for

example Public Service Act 1999 (Cth) and other Acts of Parliament such

as those governing maternity and long service leave.
[5] The scope of the Standard is set out in Workplace Relations Act 1996 (Cth), s 171(2). The WorkChoices Standard also includes the minimum wage

set by the Australian Fair Pay Commission and a maximum of 38 ordinary hours of

work per

week.
[6] Workplace Relations Act 1996 (Cth), s 232. Shift workers are

entitled to an additional

week.
[7] Workplace Relations Act 1996 (Cth), ss 245-249. This includes sick

leave and carer’s leave, with provision for an additional two days of

unpaid carer’s leave (ss 250-252) and two days of paid compassionate leave

per occasion (ss

257-259).
[8] Workplace Relations Act 1996 (Cth), ss 266,

283.
[9] Workplace Relations Act 1996 (Cth), s

244(b).
[10] Workplace Relations Act 1996 (Cth), s

257(1).
[11] Workplace Relations Act 1996 (Cth), ss 250, 257. The Workplace

Relations Act 1996 (Cth), does not define ‘member of the

employee’s household’.
[12] Workplace Relations Act 1996 (Cth), s

240.
[13] Workplace Relations Act 1996 (Cth), ss 240, 263. For discussion about the

definition of ‘spouse’ see Australian Council of Trade Unions

(ACTU), Submission

39.
[14] Workplace Relations Act 1996 (Cth), ss 240, 263: ‘de facto spouse,

of an employee, means a person of the opposite sex to the employee who lives

with the employee as the employee's husband or wife on a genuine domestic basis

although not legally married to the employee’.
[15] Workplace Relations Act 1996 (Cth), s

240.
[16] For an explanation of these terms see the Glossary of

Terms.
[17] See Chapter 5 on Recognising

Children.
[18] See Australian Chamber of Commerce and Industry, Submission 301(I); Anna

Chapman, Submission 229. See also A Chapman, ‘Challenging the Constitution

of the (White and Straight) Family in Work and Family Scholarship’, Law

in Context, vol 23, no 1, 2005, pp65-87. See further Family Leave Test

Case – November 1994 (1994) 57 IR 121; Family Leave Test Case,

Supplementary Decision (1995) AILR

3-060.
[19] Inner City Legal Centre, Opening Statement, Sydney Hearing, 26 July

2006.
[20] ACON, Submission

281.
[21] Graeme Moffatt, Submission 122. See also Law Institute of Victoria, Submission

331.
[22] Sue McNamara and Leanne Nearmy, Submission

298.
[23] Name Withheld, Submission

116.
[24] The relevant provisions on adoptive leave are in the Workplace Relations Act

1996 (Cth), ss

298-315.
[25] The relevant provisions on paternity leave are in the Workplace Relations Act

1996 (Cth), ss

282-285.
[26] Workplace Relations Act 1996 (Cth), s 282(1). ‘Spouse includes the following: (a) a former spouse; (b) a de facto

spouse; (c) a former de facto spouse’: s

263.
[27] See Gay and Lesbian Rights Lobby (NSW), Submission 333; Law Institute of

Victoria, Submission 331; Anna Chapman, Submission

229.
[28] See ACON, Submission 281.
[29] Anthony Brien, Submission

64.
[30] Australian Council of Trade Unions, Melbourne Hearing, 27 September 2006.
[31] Australian Council of Trade Unions, Submission

39.
[32] See also Gay and Lesbian Rights Lobby (NSW), Submission

333.
[33] Gay and Lesbian Rights Lobby (NSW), Submission

333.
[34] Janet Jukes, Submission

276.
[35] See Australian Council of Trade Unions, Submission 39; Anna Chapman, Submission

229.
[36] Workplace Relations Act 1996 (Cth), s

3(l).
[37] Workplace Relations Act 1996 (Cth), s 3(m). See Australian Chamber of

Commerce and Industry, Submission 301(I); Australian Council of Trade Unions,

Submission

39.
[38] Workplace Relations Act 1996 (Cth), ss 104-106, 151(3), 222, 568(2)(e).

See Anna Chapman, Submission

229.
[39] Under the Industrial Relations Act 1999 (Qld), parental leave

entitlements are available on ‘the birth of a child of an employee’s

spouse’: s 18(3). ‘Spouse’ is defined by the Acts

Interpretation Act 1954 (Qld) to include a de facto partner: s 36. The

definition of ‘de facto partner’ is ‘either 1 of 2 persons who

are living together as a couple on a genuine domestic basis...’: s

32DA(1). The ‘gender of the persons is not relevant’: s

32DA(5).
[40] The Statutes Amendment (Domestic Partners) Act 2006 (SA) This Act had not

commenced as at 10 April 2007. It will amend the Fair Work Act 1994 (SA).

See Fair Work Act 1994 (SA), sch 5, Item

2.
[41] The Acts Amendment (Equality of Status) Act 2003 (WA) amended the Minimum Conditions of Employment Act 1993 (WA). See Minimum Conditions

of Employment Act 1993 (WA), s

20A.
[42] Industrial Relations Act 1984 (Tas), s 47AF. However, it seems that

amendments to the State Service Regulations 2001 (Tas) may have clarified this

issue for Tasmanian public sector employees. Dr Samantha Hardy, Dr Sarah

Middleton, Dr Lisa Butler, Submission 125. See State Service Regulations 2001

(Tas), reg 25(1). ‘Spouse’ is now defined as including the person

with whom a person is, or was at the time of his or her death, in a significant

relationship, within the meaning of the Relationships Act 2003 (Tas): reg

3(1).
[43] Industrial Relations Act 1984 (Tas), sch 2, Item 2: a

‘partner’ as defined in the Relationships Act 2003 (Tas) is

entitled to parental leave.
[44] Australian Chamber of Commerce and Industry, Submission 301(I). See for

example, State Personal/Carer’s Leave Case - August 1996 (1996) 68 IR 308, Aged Care General Services (State) Award 2006 (NSW),

section 18, http://www.industrialrelations.nsw.gov.au/awards/pathways/results.jsp?award_code=964&show=Content&content_id=1622124,

viewed 9 March 2007. See also NSW Department of Commerce, Office of Industrial

Relations, Carer’s and bereavement leave, http://www.industrialrelations.nsw.gov.au/resources/carersleave.pdf,

viewed 9 March

2007.
[45] Industrial Relations Act 1996 (NSW), s 55(3). See ACON, Submission 281;

Gay and Lesbian Rights Lobby (NSW), Submission 333; Anti-Discrimination Board of

NSW, Sydney Hearing, 26 July 2006.
[46] Gay and Lesbian Rights Lobby (NSW), Submission 333. See also ACON, Submission

281.
[47] In the ACT and the NT, individual industrial relations systems have not been

enacted. In Victoria, general industrial relations powers were referred to the

Commonwealth in 1996: Commonwealth Powers (Industrial Relations) Act 1996 (Vic) and Workplace Relations and other Legislation Amendment Bill (No.2)

1996 (Cth).
[48] Simon Corbell MLA (Attorney-General for the ACT), Opening Statement, Canberra

Hearing, 20 November 2006. The Parental Leave (Private Sector

Employees) Act 1992 (ACT) applies to employees who are either not covered by

an industrial award, or whose industrial award does not include entitlement to

parental leave and does not preclude such an entitlement: Parental Leave

(Private Sector Employees) Act 1992 (ACT), s 4. Section 5 refers to the

Parental Leave Case (Australian Industrial Relations Commission Decision

773/1990, 26 July 1990), attachment A.
[49] Equal Opportunity Commission of Victoria, Daylesford Forum, 28 September 2006.

See Equal Opportunity Act 1995 (Vic). An employer must not discriminate

against an employee by denying or limiting access by the employee to

opportunities for promotion, transfer or training or to any other benefits

connected with employment: s 14. Discrimination is prohibited on the basis of

such attributes as ‘marital status’ and ‘sexual

orientation’: s 6. ‘Marital status’ includes ‘domestic

partner’ which is defined as a person living with another as a couple on a

genuine domestic basis, irrespective of gender: s

4.
[50] Section 16(1) of the Workplace Relations Act 1996 (Cth) outlines the

state and territory legislation that is excluded by the Act, primarily state or

territory industrial laws or laws that apply to employment generally and deal

with leave. However, s 16(2)(a) specifies that state and territory laws that

deal with ‘the prevention of discrimination’ or ‘the promotion

of EEO’ are not

excluded.
[51] Australian Services Union, documents provided at Sydney Hearing, 26 July 2006.
[52] Australian Services Union, documents provided at Sydney Hearing, 26 July

2006.
[53] Australian Chamber of Commerce and Industry, Submission

301(I).
[54] University of Western Australia, Perth Hearing, 9 August

2006.
[55] Australian Services Union, Submission

296.
[56] Name Withheld, Submission

297.
[57] Australian Government, WorkChoices, WorkChoices and Australian Families, https://www.workchoices.gov.au/ourplan/publications/html/

WorkChoicesandAustralianfamilies.htm,

viewed 5 March

2007.
[58] Australian Chamber of Commerce and Industry, Submission

301(I).
[59] Rebecca Wealands, Submission

132.
[60] Felicity Martin and Sarah Lowe, Submission

145.
[61] Australian Chamber of Commerce and Industry, Submission

301(I).
[62] Australian Services Union, Submission

296.
[63] Eilis Hughes, Melbourne Hearing, 27 September

2006.
[64] ACON, Sydney Hearing, 26 July 2006. See also, Australian Services Union, Opening

Statement, Sydney Hearing, 26 July

2006.
[65] Eilis Hughes, Submission 37. Also quoted in Victorian Gay and Lesbian Rights

Lobby, Submission

256.
[66] Eilis Hughes, Melbourne Hearing, 27 September

2006.
[67] Australian Council of Trade Unions, Melbourne Hearing, 27 September

2006.
[68] Australian Services Union, Opening Statement, Sydney Hearing, 26 July

2006.
[69] Australian Services Union, Opening Statement, Sydney Hearing, 26 July 2006. See

also Australian Council of Trade Unions, Melbourne Hearing, 27 September

2006.
[70] Australian Services Union, Opening Statement, Sydney Hearing, 26 July

2006.
[71] Law Institute of Victoria, Submission

331.
[72] Australian Services Union, Submission

296.
[73] Community and Public Sector Union (CPSU), PSU Group, Submission 135.

‘Certified agreements made before the commencement of WorkChoices will

continue to operate until they are replaced by a collective agreement or an AWA

made after WorkChoices commences’: WorkChoices, WorkChoices and federal

awards and agreements, Fact Sheet 2, https://www.workchoices.gov.au/ourplan/publications/html/WorkChoicesandfederalawardsandagreements.htm,

viewed 13 March

2007.
[74] T Mills, Assistant Director-General, Human Resources Branch, Australian Agency

for International Development, Correspondence to the Human Rights and Equal

Opportunity Commission, 24 November

2006.
[75] Australian Government, Department of Health and Ageing, People Leadership and

Performance Improvement 2004-2007, in D Kalisch, Deputy Secretary,

Department of Health and Ageing, Correspondence to the President, Human Rights

and Equal Opportunity Commission, 6 November

2006.
[76] Community and Public Sector Union (CPSU), PSU Group, Submission

135.
[77] Community and Public Sector Union (CPSU), PSU Group, Submission

135.
[78] Community and Public Sector Union (CPSU), PSU Group, Submission

135.
[79] Additional entitlements under the Act may be determined by the Remuneration

Tribunal or by regulation: Parliamentary Entitlements Act 1990 (Cth), s

5(1)(a). Where the regulations are inconsistent with a determination by the

Remuneration Tribunal under subsections 5(1)(a) or 9(1), the regulations prevail

and the determination is void to the extent of the inconsistency: Parliamentary Entitlements Act 1990 (Cth), s

10(1).
[80] Remuneration Tribunal, Determination 2006/18, cl

2.8.
[81] Remuneration Tribunal, Determination 2006/18, cl

2.8.
[82] Remuneration Tribunal, Determination 2006/18, cls 2.9,

2.12(a).
[83] Remuneration Tribunal, Determination 2006/18, cl

2.15.
[84] Remuneration Tribunal, Determination 2006/18, cl

2.20(a).
[85] Remuneration Tribunal, Determination 2006/18, cls

3.14-3.15.
[86] Remuneration Tribunal, Determination 2006/18, cl

9.1(d).
[87] Remuneration Tribunal, Determination 2006/18, cl 9.13. This clause

was amended by Remuneration Tribunal, Determination 2006/20, cl 3.2. See

J Conde, President, Remuneration Tribunal, Correspondence to the President,

Human Rights and Equal Opportunity Commission, 11 December

2006.
[88] Remuneration Tribunal, Determination 2006/18, cl

6.5.
[89] Brian Greig, Submission 110. See Remuneration Tribunal, Determination

2006/18, cl 2.8: the definition of ‘nominee’ does not exclude a

Senator’s or Member’s staff members. Clause 2.8 of Determination

2003/14 was amended by Determination 2005/09 to remove the condition

that a ‘nominee’ be a person ‘other than a member of the staff

of the senator or member’: see Remuneration Tribunal, Determination

2005/09, cl

2.8.
[90] Remuneration Tribunal, Determination 2006/14, cl

2.8.
[91] Parliamentary Entitlements Act 1990 (Cth), s

3.
[92] The use of the phrase ‘as the spouse’ would still exclude same-sex

couples if the interpretation given by the Federal Court in Commonwealth of

Australia v Human Rights and Equal Opportunity Commission and Anor [1998]

138 FCA (27 February 1998) continues to be followed. See further I Watt,

Secretary, Department of Finance and Administration, Correspondence to the

President, Human Rights and Equal Opportunity Commission, 24 November

2006.
[93] Parliamentary Entitlements Act 1990 (Cth), sch 1, pt 1, s 9(2).
[94] Parliamentary Entitlements Act 1990 (Cth), sch 1, pt 2, s 3(1)-(2). A

senior officer is a Minister, an Opposition Office Holder or a Presiding Officer

(President of the Senate or the Speaker of the House of Representatives): Parliamentary Entitlements Act 1990 (Cth), s

3.
[95] Parliamentary Entitlement Regulations 1997 (Cth), regs

3B-3C.
[96] Parliamentary Entitlement Regulations 1997 (Cth), sch 1, pt 2, para 1(1)(e).
[97] Parliamentary Entitlement Regulations 1997 (Cth), sch 1, pt 2, para 1(1)(f).
[98] See Members of Parliament (Life Gold Pass) Act 2002 (Cth), ss 10(1),

11(2), 12. See also Determination 2006/18, cl

2.20(b).
[99] Members of Parliament (Life Gold Pass) Act 2002 (Cth), s

4.
[100] Members of Parliament (Life Gold Pass) Act 2002 (Cth), s

4.
[101] Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 (Cth), ss 4-7. These office holders include judges of the High Court, the

Federal Court, the Family Court, the Supreme Court of the ACT, the Chairman of

the Commonwealth Grants Commission and the President of the Inter-State

Commission.
[102] Remuneration Tribunal, Determination 2004/03, cl

1.10.
[103] Remuneration Tribunal, Determination 2004/03, cl

3.2.
[104] Remuneration Tribunal Act 1973 (Cth), ss 5(2A), 7(3)-(4). Public office

holders include a range of senior jobs in Commonwealth bodies: see Remuneration

Tribunal, Full-time Offices, http://www.remtribunal.gov.au/fullTimeOffices/default.asp?menu=Sec1&switch=on,

viewed 9 March 2007. Principal executive officers include a range of chief

executives and managing directors of federal

agencies.
[105] Remuneration Tribunal, Determination

2004/03.
[106] Remuneration Tribunal, Determination 2004/03, cl 1.5.7. The same

definition of ‘partner’ appears in determinations covering the

travel allowance of other senior office holders such as the

Solicitor-General and Director of Public Prosecutions: see Remuneration

Tribunal, Determination 2000/15, cl

C3.
[107] Department of Foreign Affairs and Trade, Administrative Circular P0265,

22 May 2000, in S Merrifield, Assistant Secretary, Staffing Branch,

Department of Foreign Affairs and Trade, Correspondence to V Lesnie, Director,

Human Rights Unit, Human Rights and Equal Opportunity Commission, 1 November

2006.
[108] Department of Foreign Affairs and Trade, Administrative Circular P0046,

28 February 1997, in S Merrifield, Assistant Secretary, Staffing Branch,

Department of Foreign Affairs and Trade, Correspondence to V Lesnie, Director,

Human Rights Unit, Human Rights and Equal Opportunity Commission, 1 November

2006.
[109] Defence Act 1903 (Cth), ss 9A, 58B. There is no definition of

‘spouse’ or ‘de facto spouse’ in the Act. The definition

relevant to the entitlements available to the family of ADF members is that of

‘member of the family’, which includes: ‘(a) in relation

to a member - a member of the household of the member and a dependant of the

member; or (b) in relation to a cadet - a member of the household of the cadet

and a dependant of the cadet’: s

58A.
[110] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 1, Part 3, Division 2, cl

1.3.77.
[111] Australian Government Department of Defence, Defence Instructions (General)

Personnel 53-1 amended the Defence Instruction (General) Manual and

the ADF Pay and Conditions

Manual.
[112] Australian Government Department of Defence, Defence Instructions (General)

Personnel 53-1, Item 4(b).
[113] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 1, Part 3, Division 2, cls

1.3.74-1.3.79.
[114] Australian Government Department of Defence, Defence Instructions (General)

Personnel 53-1, Item 7. Although the Approving Authority may waive

this requirement if there is a temporary separation because of service

emergencies or unforseen circumstances: Australian Government Department

of Defence, Defence Instructions (General) Personnel 53-1, Item

8.
[115] Australian Government Department of Defence, Defence Instructions (General)

Personnel 53-1, Item

9.
[116] Australian Government Department of Defence, Defence Instructions (General)

Personnel 53-1, Item

9.
[117] J Millbank, 'Areas of Federal Law that Exclude Same-Sex Couples and their

Children', Inquiry Research Paper, September 2006, available at www.http://www.humanrights.gov.au/samesex/index.html,

p15.
[118] RC Smith, Secretary, Department of Defence, Correspondence to the President,

Human Rights and Equal Opportunity Commission, 3 November 2006.
[119] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 6, Part

1.
[120] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 6, Parts 4,

7.
[121] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 7, Part

4.
[122] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 7, Part

5.
[123] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter

5.
[124] See generally Australian Government Department of Defence, ADF Pay and

Conditions Manual, Chapter 8. See also J Millbank, 'Areas of Federal Law

that Exclude Same-Sex Couples and their Children', Inquiry Research Paper,

September 2006, available at www.http://www.humanrights.gov.au/samesex/index.html,

pp15-16.
[125] Australian Government Department of Defence, ADF Pay and Conditions

Manual, Chapter 5, Part 5, cl

5.5.3.
[126] Defence Force (Home Loans Assistance) Act 1990 (Cth), s 5.
[127] Defence Force (Home Loans Assistance) Act 1990 (Cth), s

3.
[128] Defence Force (Home Loans Assistance) Act 1990 (Cth), s

3.
[129] Defence Force (Home Loans Assistance) Act 1990 (Cth), s 6 defines members

of a person’s family as their spouse, the child of the person or their

spouse, or the dependent parent of the person or their

spouse.
[130] See, for example, Defence Force (Home Loans Assistance) Act 1990 (Cth),

ss 20,

32.
[131] Defence Force (Home Loans Assistance) Act 1990 (Cth), s

30.
[132] Defence Force (Home Loans Assistance) Act 1990 (Cth), s

3.
[133] RC Smith, Secretary, Department of Defence, Correspondence to the President,

Human Rights and Equal Opportunity Commission, 3 November 2006.
[134] See for example, Name Withheld, Submission 49; University of Western Australia,

Submission 185; Women’s Health Victoria, Submission 318; Anthony Brien,

Submission

64.
[135] Coalition of Activist Lesbians, Submission

171.
[136] Graeme Moffatt, Submission

122.
[137] Name Withheld, Submission

49.
[138] Name Withheld, Submission

267.
[139] Name Withheld, Submission

267.