Same-Sex: Same Entitlements: Chapter 6
Chapter 6. Employment
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- 6.1 What is this chapter about?
- 6.2 How are employment conditions established for Australian workers?
- 6.3 Can same-sex and opposite-sex couples access the same leave entitlements?
- 6.4 Do federal government employees in same-sex and opposite-sex couples enjoy the same work conditions?
- 6.5 Are same-sex couples protected from general discrimination in the workplace?
- 6.6 Does employment legislation breach human rights?
- 6.7 What must change to ensure equal access to work-related benefits for same-sex couples?
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
eliminatediscrimination on the basis of race, colour, sex,
sexual preference, age, physical or mentaldisability, 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.
