Inquiry into the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008

Inquiry into the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws – General Law Reform) Bill 2008

Australian
Human Rights Commission Submission to the Senate Legal and Constitutional
Affairs Committee

15 September 2008

Table of Contents

• Introduction
• Summary
• Recommendations
• The new definition of ‘de facto partner’
  • What did the Same-Sex: Same Entitlements Inquiry recommend to remove discrimination against same-sex couples?
  • The new definition of ‘de facto partner’ removes discrimination against same-sex couples
• The new definitions of ‘child’ and ‘parent’
  
  • What did the Same-Sex: Same Entitlements Inquiry recommend regarding the legal recognition of children?
  • The new definitions of ‘child’ and ‘parent’ remove discrimination
  • Is there an alternative approach to the definition of ‘child’?
  • Does the new definition of ‘child’ recognise anyone as a parent other than those in the couple relationship?
• The new definitions of ‘stepchild’ and ‘step-parent’
• Amendments to the Sex Discrimination Act 1984 (Cth)
• Amendments to the Migration Act 1958 (Cth)

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Introduction

1. The Australian Human Rights Commission (the Commission)
   makes this submission to the Senate Legal and Constitutional Affairs Committee
   in its Inquiry into the Same-Sex Relationships (Equal Treatment in Commonwealth
   Laws – General Law Reform) Bill 2008.
2. The Commission welcomes the introduction of this
   Bill.
3. In June 2007, Same-Sex: Same Entitlements, the
   report of the National Inquiry into Discrimination against People in Same-Sex
   Relationships: Financial and Work-Related Entitlements and Benefits (the
   Same-Sex: Same Entitlements Inquiry) was tabled in the federal Parliament.
4. The Same-Sex: Same Entitlements Inquiry found that at
   least 58 federal laws relating to financial and work-related entitlements
   discriminated against same-sex couples and in many cases, their children. As a
   result, these laws breach the International Covenant on Civil and Political
   Rights. Many of these laws also breach the Convention on the Rights of
   the Child (CRC), by discriminating against the children of same-sex couples
   and failing to protect the best interests of the child in the area of financial
   and work-related entitlements.
5. The Same-Sex: Same Entitlements Inquiry
   recommended:
   • The federal government should amend the discriminatory
     laws identified by the Inquiry to ensure that same-sex couples and opposite-sex
     couples enjoy the same financial and work-related entitlements.
   • The federal government should amend the discriminatory
     laws identified by the Inquiry to ensure that the best interests of children in
     same-sex and opposite-sex families are equally protected in the area of
     financial and work-related
     entitlements.^[1]

Summary

6. The Commission supports the amendments to Commonwealth
   legislation introducing new definitions of ‘de facto partner’ and
   ‘de facto relationship’. These amendments remove discrimination
   against same-sex couples contained in Commonwealth laws.
7. The Commission supports the amendments to Commonwealth
   legislation introducing new definitions of ‘child’ and
   ‘parent’. These amendments remove discrimination against children of
   same-sex families contained in Commonwealth laws.
8. The Commission welcomes the amendment of the definitions
   of ‘stepchild’ and ‘step-parent’ so that they recognise
   these relationships in de facto families, including same-sex
   families.
9. The Commission is disappointed that the amendments to the
   Sex Discrimination Act 1984 (Cth) (SDA) only remove discrimination
   against same-sex couples in relation to family responsibilities discrimination
   and not marital status discrimination.
10. The Commission supports the removal of the
    interdependency definition in the Migration Act 1958 (Cth) (Migration
    Act). This definition is no longer necessary as the new definition of ‘de
    facto partner’ applies to people in both opposite sex and same-sex de
    facto relationships.

Recommendations

11. The Australian Human Rights Commission recommends
    that:

Recommendation 1: The
amendments contained in the Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – General Law Reform) Bill 2008 inserting the new
definitions of ‘de facto partner’ and ‘de facto
relationship’ into Commonwealth legislation should proceed.

Recommendation 2: The amendments contained in the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008 inserting the new definitions of ‘child’ and
‘parent’ into Commonwealth legislation should proceed.

Recommendation 3: The amendments contained in the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008 expanding the definitions of ‘stepchild’ and
‘step-parent’ in Commonwealth legislation should proceed.

Recommendation 4: The Sex Discrimination Act
1984 (Cth) should be amended to replace the protected ground of
‘marital status’ with ‘couple status’. The definition of
‘de facto spouse’ should be replaced with the new definition of
‘de facto partner’, which this Bill inserts into the Acts
Interpretation Act 1901 (Cth).

Recommendation 5: Section 9(10) of the Sex
Discrimination Act 1984 (Cth) should be amended to ensure equal coverage
under the SDA for men and women, along the lines of s 12(8) of the Disability
Discrimination Act 1992 (Cth).

Recommendation 6: The amendments contained in the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008 removing the definition of ‘interdependency
relationship’ from the Migration Act 1958 (Cth) should proceed.

Recommendation 7: The amendments contained in ss
5CA(2) and 5CA(3) of the Migration Act 1958 (Cth) should not
proceed.

The
new definition of ‘de facto partner’

12. The Commission welcomes the new definitions of ‘de
    facto partner’ and ‘de facto relationship’ adopted by this
    Bill.
13. These new definitions ensure
    that same-sex and opposite-sex couples are treated equally under the
    Commonwealth laws that adopt the new definition.
14. As noted above, the primary recommendation of the
    Same-Sex: Same Entitlements Inquiry was that discriminatory legislation should
    be amended so that same-sex and opposite-sex couples enjoy the same financial
    and work-related entitlements. The amendments contained within this Bill achieve
    this aim.

What
did the Same-Sex: Same Entitlements Inquiry recommend to remove discrimination
against same-sex couples?

15. The Same-Sex: Same Entitlements Inquiry report argued
    that the preferred drafting approach for bringing equality to same-sex couples
    is to:
    • retain the current terminology used in federal
      legislation (for example ‘spouse’)
    • redefine the terms in the legislation to include same-sex
      couples
    • insert new definitions of ‘de facto
      relationship’ and ‘de facto partner’ which include same-sex
      couples.^[2]

The
new definition of ‘de facto partner’ removes discrimination against
same-sex couples

16. This Bill reflects the Commission’s recommendations
    in that it retains current terminology such as ‘spouse’.
    Discrimination against same-sex couples is removed through the new definition of
    ‘de facto partner’ inserted into the Acts Interpretation Act
    1901 (Cth).
17. The Commission supports the approach taken in the Bill to
    people in registered relationships. A person will automatically be considered to
    be the de facto partner of another person if they are in a ‘registered
    relationship’.^[3]
18. The Same-Sex: Same Entitlements Inquiry heard from many
    same-sex couples about the importance of formal relationship recognition. The
    Commission recommended that relationship registration should be proof of the
    relationship from the date of
    registration.^[4] The Bill implements
    this recommendation.
19. The Commission fully supports the new definition of
    ‘de facto relationship’ contained in the Bill. The list of
    circumstances to be taken into account when determining whether two persons have
    a couple relationship almost exactly mirror the definition recommended by the
    Same-Sex: Same Entitlements
    Inquiry.^[5]
20. The Commission supports the requirement that the new
    definitions of ‘de facto partner’ and ‘de facto
    relationship’ will only apply if specified by a particular Act. There are
    instances where an alternative definition of a ‘couple relationship’
    has been developed for specific policy reasons, such as in the Social
    Security Act 1990 (Cth) or the Migration Act 1958 (Cth). The
    Commission supports the retention of these established definitions, as long as
    they do not discriminate against same-sex couples.
21. Recommendation 1: The amendments contained in the
    Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
    Reform) Bill 2008 inserting the new definitions of ‘de facto
    partner’ and ‘de facto relationship’ into Commonwealth
    legislation should proceed.

The
new definitions of ‘child’ and ‘parent’

22. The Commission supports the new definitions of
    ‘child’ and ‘parent’ contained in the Bill.
23. Protecting the best interests of a child is one of the
    most important principles of international law and a guiding principle in the
    CRC. Ensuring that children in same-sex families have the same entitlements as
    children in opposite-sex families is fundamental to protecting the best
    interests of these children.
24. The clear purpose of this Bill is to ensure that the
    children of a same-sex relationship are treated equally as the children of an
    opposite-sex relationship. The Commission supports the removal of discrimination
    against the children of same-sex families.

What
did the Same-Sex: Same Entitlements Inquiry recommend regarding the legal
recognition of children?

25. The Same-Sex: Same Entitlements Inquiry made the
    following recommendations regarding the legal recognition of children:
    • Federal laws without a definition of ‘child’
      should include a definition which recognises the children of a birth mother,
      birth father, lesbian co-mother or gay co-father.
    • Federal laws should ensure that a lesbian co-mother of an
      Assisted Reproductive Technology child can access the same financial and
      work-related entitlements available to a birth mother and a birth father (a
      legal parent).
    • Federal financial and work-related laws should include a
      definition of ‘step-child’ which recognises a child under the care
      of a ‘de facto partner’ of a birth mother or birth
      father.
    • ‘Step-parent adoption’ laws should more
      readily consider adoption by a lesbian co-mother or gay co-father.
    • Gay and lesbian couples should have equal rights to apply
      for adoption of an unrelated child.
    • Where access to financial or work-related benefits is
      intended to extend beyond the legal parents, federal laws should explicitly
      recognise the eligibility of a person who has a parenting order from the Family
      Court of Australia.
    • There should be a public information and education
      campaign to ensure that gay and lesbian families are aware of their rights and
      entitlements under federal financial and work-related
      laws.

The
new definitions of ‘child’ and ‘parent’ remove
discrimination

26. The definitions of ‘child’ and
    ‘parent’ in the Bill remove discrimination by including the children
    of most same-sex relationships. This is achieved by broadening the definition of
    child to include a person who is the ‘product of a relationship’
    with a partner: ‘someone who is the product of a relationship the person
    has or had as a couple with another person (whether of the same sex or a
    different sex)’.^[6]
27. The Commission notes that this new definition does not
    replace the definition of ‘child’ as it is currently understood, but
    rather expands the classes of children that may be taken to be a child of a
    couple for the purposes of the Acts to be amended.
28. As outlined in the Commission’s submission to the
    Inquiry into the Same-Sex Relationships (Equal Treatment in Commonwealth Laws
    – Superannuation) Bill 2008, the Commission believes that this new
    definition of ‘child’ will include children born into all same-sex
    relationships, including:
    • where one member of a lesbian couple gives birth using
      donated sperm
    • where one member of a lesbian couple gives birth using
      donated sperm and donated eggs
    • where one member of a lesbian couple gives birth
      following intercourse with a man
    • where a surrogate mother gives birth to a child for a gay
      couple using the donated sperm of one member of a gay
      couple.

Is
there an alternative approach to the definition of
‘child’?

29. The Commission is aware that there are alternative views
    as to the most appropriate way to remove discrimination against children in
    same-sex families.
30. The Commission agrees that there is an alternative
    approach which would ensure greater consistency in the legal recognition of the
    parent-child relationship both in federal laws and between federal and state
    laws.
31. This approach would involve:
    • amendment of the parenting presumption in s 60H of the
      Family Law Act 1975 (Cth) (Family Law Act) to include lesbian
      co-mothers
    • introduction of uniform state surrogacy laws that
      recognise gay co-fathers and provide a mechanism for the transfer of legal
      parentage from the birth mother
    • amendment of the Family Law Act to recognise parental
      status as conferred by state laws
    • amendment of the definition of ‘child’ in the
      Family Law Act to include children born through intercourse, children lawfully
      adopted, children of parents recognised under s 60H and children of parents
      recognised by state laws
    • extension of the Family Law Act definition of
      ‘child’ to apply to all federal laws that grant rights or
      obligations based on a parent-child relationship.
32. The above approach would require amendment of the
    parenting presumptions contained in s 60H of the Family Law Act. This was
    recommended in the Senate Legal and Constitutional Affairs Committee Report on
    the Inquiry into the Family Law Amendment (De Facto Financial Matters and Other
    Measures) Bill 2008 (Cth).
33. However, even if s 60H of the Family Law Act was amended,
    equality for fathers who formed a family through a surrogacy would not be
    achieved if state and territory surrogacy laws were not reformed. There is no
    guarantee of uniform amendment of surrogacy laws or that these amendments would
    include same-sex couples.
34. Consequently, the Commission prefers the approach of the
    new definition of ‘child’ contained in this Bill, as it achieves
    equality for all same-sex families.

Does
the new definition of ‘child’ recognise anyone as a parent other
than those in the couple relationship?

35. As noted above, the new definition of ‘child’
    maintains a parent-child relationship where there is a biological connection.
    This means a person may be the ‘child’ of a sperm donor to a lesbian
    couple and the ‘child’ of a birth mother to a gay couple.
    Importantly, no surrogacy laws in Australia automatically oust the parental
    status of a birth mother.
36. Consequently, the new definition of child will mean that
    a child may be considered to be the ‘child’ of both partners in a
    same-sex couple and the ‘child’ of the sperm donor or birth mother.
    It may also include the partner of the sperm donor or birth mother, if that
    couple are intended parents.
37. It is important to understand that gay and lesbian
    parenting arrangements often involve more than two people. Where a male sperm
    donor is an active parent along with a lesbian couple, recognition that a person
    can be a child of both the lesbian couple and the donor father may be
    appropriate. Similarly, it may be important to recognise the status of a birth
    mother to a gay couple.
38. Consequently, it is appropriate that some of the
    legislation amended by this Bill reflect the reality of gay and lesbian
    parenting arrangements by providing access to benefits wherever a parent-child
    relationship is found to exist under the new definition.
39. For example, in respect of the Safety, Rehabilitation
    and Compensation Act 1998 (Cth), which governs Commonwealth worker’s
    compensation payments, the effect of the amendments is that it will be that it
    is easier for the child of a person in a same-sex relationship to prove a right
    to an entitlement if that person dies. Further, the operation of the tracing
    rule introduced into this legislation means members of same-sex families will be
    now considered ‘prescribed persons’ for the purposes of some
    entitlements. It is appropriate that this legislation applies in every case
    where a person is considered another person’s child.
40. In other cases, the amendment of the definition of child
    will, quite appropriately, not impact on the entitlements available to a child
    or parent.
41. For example, the A New Tax System (Family Assistance)
    Act 1999 (Cth) specifies that a child can only ever be the ‘FTB
    child’ (family tax benefit child) of one person. The impact of the new
    definition of child is not to expand the benefits available under the
    legislation. It merely expands the classes of persons who are eligible to be the
    parent of an FTB child.
42. Similarly, the Child Care Benefit and the Child Care Tax
    Rebate are only available if a child is the ‘FTB child’ of a
    taxpayer or their partner. No other person can claim this
    benefit.^[7]
43. The Commission understands that the possibility that more
    than two people could be recognised as parents of a single child has caused
    concern amongst some sections of the community. However, in the
    Commission’s view, this is an appropriate outcome given the realities of
    some gay and lesbian parenting arrangements. Furthermore, it makes no difference
    in the application of some legislation if a person is the child of more than two
    people as child-related entitlements are only available to one person (and
    possibly their partner).
44. Recommendation 2: The amendments contained in the
    Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
    Reform) Bill 2008 inserting the new definitions of ‘child’ and
    ‘parent’ into Commonwealth legislation should
    proceed.

The
new definitions of ‘stepchild’ and
‘step-parent’

45. The Commission welcomes the amendment of the definitions
    of ‘stepchild’ and ‘step-parent’ so that they recognise
    these relationships in de facto families, including same-sex families.
46. As outlined in the Same-Sex: Same Entitlements Inquiry,
    under current legislation a person can generally only be a
    ‘step-parent’ of a child if the person is married to the
    child’s biological parent. As same-sex couples cannot marry, neither a
    lesbian co-mother nor a gay co-father can become a ‘step-parent’.
47. The Commission recommended that federal financial and
    work-related laws should include a definition of ‘stepchild’ which
    recognises a child under the care of a ‘de facto’ partner of a birth
    mother or a birth father. The amendments contained in this Bill implement this
    recommendation.
48. Recommendation 3: The amendments contained in the
    Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
    Reform) Bill 2008 expanding the definitions of ‘stepchild’ and
    ‘step-parent’ in Commonwealth legislation should
    proceed.

Amendments
to the Sex Discrimination Act
1984 (Cth)

49. The Commission has some concerns about the approach taken
    to amending the Sex Discrimination Act 1984 (Cth) (SDA).
50. The Commission welcomes the amendments of the provisions
    of the SDA relating to discrimination on the basis of family responsibilities to
    remove discrimination against same-sex couples and their families.
51. However, the Commission is disappointed that the
    provisions of the SDA relating to discrimination on the basis of marital status
    have not been amended.
52. Section 6 of the SDA provides for a prohibition on
    discrimination on the grounds of marital status. Section 4 defines
    ‘marital status’ as the status or condition of
    being:

(a) single,

(b) married,

(c) married but living separately and apart from
one’s spouse,

(d) divorced,

(e) widowed, or

(f) the de facto spouse of another person. (emphasis added)

53. The term ‘de facto spouse’ is then also
    separately defined, as follows

    De facto
    spouse in relation to a person, means a person of the opposite sex to the
    first-mentioned person who lives with the first-mentioned person as the husband
    or wife of that person on a bona fide domestic basis although not legally
    married to that person.

54. Under this definition, only persons in an opposite-sex de
    facto relationship are protected from discrimination on the grounds of being in
    a de facto relationship. Same-sex de facto couples are not. The Commission
    considers that the SDA should be amended to provide equal protection to same-sex
    and opposite-sex de facto couples from discrimination on the basis of being in a
    de facto relationship.
55. The Commission does not believe that this amendment would
    provide protection from discrimination on the basis of sexuality or being in a
    same-sex relationship per se. A person in a same-sex relationship would
    only be able to rely on the prohibition against discrimination on the basis of
    marital status if the discrimination is due to their status of being in a de
    facto couple, rather than due to their sexuality or being in a same-sex couple.
56. For example, the proposed amendment would not apply to a
    hotel which refused service to a same-sex couple, as the basis of the refusal of
    service would be the sexuality of the couple and/or the sexuality of the persons
    in the couple. However, if the hotel refused service to all de facto couples,
    then this amendment would ensure that same-sex de facto couples would have equal
    rights as opposite-sex de facto couples in challenging that refusal of service.
    This is because the refusal of service on this occasion is based on being in a
    de facto relationship, rather than sexuality or being in a same-sex
    relationship.
57. This approach reflects the proposal made by the
    Commission in its recent submission to the Inquiry of this Committee: The
    effectiveness of the Commonwealth Sex Discrimination Act 1984 (Cth) in
    eliminating discrimination and promoting gender equality (the
    Commission’s Submission to the Senate Inquiry into the SDA). See
    Recommendation 15.^[8]
58. Recommendation 4: The Sex Discrimination Act
    1984 (Cth) (SDA) should be amended to replace the protected ground of
    ‘marital status’ with ‘couple status’. The definition of
    ‘de facto spouse’ should be replaced with the new definition of
    ‘de facto partner’, which this Bill inserts into the Acts
    Interpretation Act 1901 (Cth).
59. The Commission notes that the Bill also proposes
    inserting a new s 9(10A) into the SDA. The proposed amendment would draw on a
    wider source of Australia’s international obligations in giving effect to
    the SDA under the external affairs power, rather than just the Convention on
    the Elimination of All Forms of Discrimination Against Women as is currently
    the case. As a result, the amendment would provide equal coverage to men and
    women in situations where only the external affairs power applies, such as where
    the respondent is an unincorporated entity or a State government. However, the
    amendment is limited to discrimination on the grounds of family
    responsibilities. It therefore does not extend equal coverage for men and women
    in respect of other areas of operation covered by the SDA, such as
    discrimination on the basis of sex or marital status or sexual harassment.
60. In the Commission’s Submission to the Senate
    Inquiry into the SDA, the Commission has recommended that the SDA be amended
    to ensure full coverage for both men and women in all respects, including in
    relation to discrimination on the basis of sex and marital (or
    ‘couple’) status and sexual harassment (as well as discrimination on
    the basis of family responsibilities). See Recommendation 20. This would involve
    amending s 9(10) in similar terms to s 12(8) of the Disability Discrimination
    Act 1992 (Cth).
61. The Commission retains its view that the SDA should
    ensure full coverage to men and women in all aspects of the Act.
62. Recommendation 5: Section 9(10) of the Sex
    Discrimination Act 1984 (Cth) should be amended to ensure equal coverage
    under the SDA for men and women, along the lines of s 12(8) of the Disability
    Discrimination Act 1992 (Cth).

Amendments
to the Migration Act 1958
(Cth)

63. The Commission supports the amendments to the
    Migration Act 1958 (Cth) (Migration Act) to remove the definition of an
    ‘interdependency
    relationship’.^[9]
64. As the Migration Act and regulations will now recognise
    same-sex partners as de facto partners, this definition is no longer necessary.
65. The Same-Sex: Same Entitlements Inquiry argued that the
    interdependency category is an inappropriate means by which to recognise
    same-sex relationships.
66. The Commission refers the Committee to its comments
    regarding interdependency relationships in the Commission’s submission to
    this Committee’s Inquiry into the Same-Sex Relationships (Equal Treatment
    in Commonwealth Laws – Superannuation) Bill 2008.
67. Recommendation 6: The amendments contained in the
    Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
    Reform) Bill 2008 removing the definition of ‘interdependency
    relationship’ from the Migration Act 1958 (Cth) should proceed.
68. The Commission notes that the Migration Act
    adopts the new definition of ‘child’ including the element of
    ‘product of a relationship’. However, proposed ss 5CA(2) and
    (3) contemplate the passing of regulations to ensure that a person may be
    the child of no more than two people.
69. The Commission opposes this aspect of the amendments
    to the Migration Act on the basis that it may exclude people
    in some same-sex parenting arrangements from being recognised as a
    child’s parent. 
70. Recommendation 7: The amendments contained in ss
    5CA(2) and 5CA(3) of the Migration Act 1958 (Cth) should not
    proceed.
    

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^[1]
Human Rights and Equal Opportunity Commission, Same-Sex: Same
Entitlements, Report of the National Inquiry into Discrimination against
People in Same-Sex Relationships: Financial and Work-Related Entitlements and
Benefits (Same-Sex: Same Entitlements), April
2007.
^[2]
Same-Sex: Same Entitlements, section 18.5.1,
p383.
^[3]
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008, inserting new section 22A into the Acts Interpretation Act
1901 (Cth).

^[4]
Same-Sex: Same Entitlements, section 18.5.2,
p384.
^[5]
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008, inserting new section 22C into the Acts Interpretation Act
1901 (Cth); Same-Sex: Same Entitlements, section 18.5.2,
p384.
^[6]
For example, see the Same-Sex Relationships (Equal Treatment in Commonwealth
Laws – General Law Reform) Bill 2008, amending section 5(1) of the
Bankruptcy Act 1966 (Cth).

^[7]
A New Tax System (Family Assistance) Act 1999 (Cth), s 22(2) –
(4).
^[8]
Note that, in the Commission’s Submission to the Senate Inquiry into
the SDA, it proposes that protection from discrimination on the grounds of
sexuality and sex and gender identity should be considered as part of a second
stage of reform of federal discrimination law, preferably through an inquiry
into an Equality Act for Australia. See Recommendation 1, and Option for
Reform C: Protection from discrimination on the grounds of sexuality, sex
identity and gender
identity.
^[9]
See for example, Same-Sex Relationships (Equal Treatment in Commonwealth Laws
– General Law Reform) Bill 2008, amendments to sections 237 and 238 of the
Migration Act 1958 (Cth).