SAME-SEX: SAME ENTITLEMENTS BILL 2007

Opening Statement of Graeme Innes AM, Human Rights Commissioner of the Human Rights and Equal Opportunity Commission to the Ad Hoc Committee

13 September 2007

Human Rights and Equal

Opportunity Commission

Level 8, 133

Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

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As this Committee knows well, in April 2006 the Human Rights and Equal

Opportunity Commission launched the Same-Sex: Same

Entitlements National Inquiry. Since that time we have travelled around

Australia to hear, first hand, about the impact of discriminatory laws on

same-sex couples and their children. We produced two discussion papers and

received 680 written submissions from across Australia. And our final report was

tabled in Parliament on 21 June 2007.

Our Inquiry put federal laws under

the human rights microscope and we found that 58 federal laws breach 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, workers’ compensation, tax, social security, veterans’

entitlements, health care, superannuation, aged care and migration. 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.

Let me give you one example. One of the minimum conditions of

employment protected under the federal WorkChoices scheme is personal or

carer’s leave. This protects a worker’s right to take leave to care

for or grieve for ‘immediate family’ or a ‘member of his or

her household’. However, these leave entitlements are not protected for

couples in same-sex relationships in the same way as they are for couples in

opposite-sex relationships. This is because a same-sex couple does not

necessarily fit into the relevant definitions.

As one couple told

us:

[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.

This unequal protection in the workplace extends to parental

leave, and a whole range of other entitlements as well.

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?

The only good thing about the blatant nature of the

discrimination against same-sex couples is that it is easily fixed. Since the

discrimination is directly attributable to the way the laws define who qualifies

as a person’s partner; the solution is to amend those definitions so that

a same-sex partner is included.

The Same-Sex: Same Entitlements

Bill appears to have substantially adopted our recommendations insofar as

they relate to including same-sex couples in the definition of a ‘de facto

relationship’. We commend the Bill to this committee for that

reason.

There is still some way to go before same-sex parents and their

children are recognised with equality. As our report discusses, addressing the

discrimination against children of same-sex couples involves amendment of the

federal Family Law Act, federal financial laws and some state and territory

laws.

The Same-Sex: Same Entitlements Bill makes a start to

amending the Family Law Act regarding parenting presumptions for lesbian

couples. The Bill also seeks to amend the definition of

‘step-parent’ in some legislation. But there still needs to be

changes to state and territory laws regarding parenting presumptions and

adoption. And there needs to be greater clarity in federal financial laws

regarding the status of parenting presumptions. We understand that it may take a

bit more time to achieve these goals given the need for coordination between

state, territory and federal jurisdictions.

Before I answer any

questions you may have, I just want to say that 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.

The

legislation listed in our report fails the litmus test which all Australians

apply in the schoolyard, the workplace and the sports field - the fair go test.

As 71 per cent of Australians agreed in Get Up’s recent Galaxy poll, to

treat people differently simply because of who they love is just not fair.

This Same-Sex: Same Entitlements Bill goes a substantial way

towards making Australian law fairer to people in same-sex relationships. I

again commend the Bill to this Committee for that reason.

Thank you. I would be pleased to answer any questions you may have.