In June this year the Human Rights and Equal Opportunity Commission (‘HREOC’) published a report called Same-Sex: Same Entitlements. We put federal laws under the human rights microscope and we found that 58 of them breach the right to equality before the law and the right to be protected from discrimination on the grounds of sexual orientation. The discrimination against same-sex couples is there on the statute books in black and white. And the discrimination exists around basic issues of employment entitlements, workers’ compensation, tax, social security, veterans’ entitlements, health care, superannuation, aged care and migration.
Just one example of the blatant nature of the discrimination is in the federal Comcare legislation. The law provides that if a worker covered by the Comcare scheme dies on the job, his or her ‘spouse’ can get workers’ compensation death benefits. The law also states that one person can only be another person’s ‘spouse’ if he or she is of the opposite sex. And that’s the end of the story. With two small words in the definition of ‘spouse’ – ‘opposite sex’ – same-sex partners around the country are denied access to Comcare death benefits.
I am still incredulous that there could be such blatant and widespread discrimination against an entire sector of our community in such fundamental areas of life. However, there is one good thing about the blatant nature of the discrimination against same-sex couples – it means that the problem is easily fixed. Since the discrimination is directly attributable to the way the laws define who qualifies as a person’s ‘partner’, ‘spouse’, ‘de facto spouse’ and so on, the simple solution is to amend those definitions so that a same-sex partner is included.
Unfortunately, the discrimination doesn’t stop at same-sex couples. Of the estimated 20,000 plus same-sex couples in Australia (and the recent Census suggests the figure is actually closer to 50,000 couples), approximately 20% of lesbian couples, and 5% of gay male couples, are raising children.
Federal laws, and some state and territory laws, fail to recognise both same-sex parents as genuine parents. The consequence is that same-sex couples are frequently denied access to entitlements which are intended to help parents financially support their children. And when you deny financial benefits to same-sex parents, you inevitably sacrifice the best interests of the children being raised by that couple.
As one person said to us:
If benefits to couples are designed to promote the interests of children, then how can one possibly justify withholding those benefits from some children for no other reason than that their parents are both of the same gender? A month ago the Democrats introduced the Same-Sex: Same Entitlements Bill, which appears to have substantially adopted our recommendations as to how to eliminate discrimination against same-sex couples. The Bill includes a definition of ‘de facto relationship’ and ‘de facto partner’ which is very similar to the one we recommend. The Bill also implements our suggestion to include the definitions of ‘de facto relationship’ in each of the laws that we have identified as discriminatory.
The Bill doesn’t quite address all the issues facing the children of same-sex couples. That’s because removing discrimination against the children of same-sex couples is a little more complicated. It involves amendment of the federal Family Law Act, federal financial laws and some state and territory laws. It’s still not rocket science, but it does require a bit more cross-jurisdictional co-ordination.
It seems that the Federal Parliament is not quite ready to pass the Same-Sex Same Entitlements Bill, or any other similar legislation. But all political parties have indicated support for the elimination of discrimination against same-sex couples in the area of financial and work-related benefits, and I am hopeful that change will occur after the federal election – no matter which party takes government.
Over the past year I have been incredibly moved by those people in the gay and lesbian community who have made it very clear to me that there is only one thing that they want: to be treated equally; no more and no less than any other Australian. Just equal.
Ultimately, the 58 federal laws which we have identified fail the litmus test which all Australians apply in the schoolyard, the workplace and the sports field – the ‘fair go’ test. As 71% of Australians agreed in Get Up’s recent Galaxy poll, to treat people differently simply because of who they love is just not fair. It is also a breach of human rights.
It is important to address the discrimination against same-sex families comprehensively and quickly. Our Same-Sex: Same Entitlements report shows that this is really not very hard to do so – there is no need to rewrite the laws; it is just a matter of changing a few definitions. We have provided Federal Parliament with the information and tools they need, it is now up to them.
Graeme Innes AM is the Human Rights Commissioner