All Human Beings Are Born Free and Equal in Dignity and Rights

‘All human beings are born free and equal in dignity and rights’

Universal Declaration of Human Rights, Article 1

Submission to the Human Rights and Equal Opportunity Commission National Inquiry into
Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits

26 June 2006

Vijaya RamanJo Shulman

Policy OfficerSolicitor

‘All human beings are born free and equal in dignity and rights’

Universal Declaration of Human Rights, Article 1

The Public Interest Advocacy Centre

The Public Interest Advocacy Centre (PIAC) is an independent, non-profit law and policy organisation that identifies public interest issues and works co-operatively with other organisations to advocate for individuals and groups affected.

PIAC seeks to promote a just and democratic society by making strategic interventions on public interest issues.

In making strategic interventions on public interest issues PIAC seeks to:

• expose unjust or unsafe practices, deficient laws or policies;
• promote accountable, transparent and responsive government;
• encourage, influence and inform public debate;
• promote the development of law—both statutory and common—that reflects the public interest; and
• develop community organisations to pursue the interests of the communities they represent.

Established in July 1982 as an initiative of the Law Foundation of New South Wales, with support from the NSW Legal Aid Commission, PIAC was the first, and remains the only, broadly-based public interest legal centre in Australia. Financial support for PIAC comes primarily from the NSW Public Purpose Fund and the Commonwealth and State Community Legal Centre Funding Program. PIAC generates approximately forty per cent of its income from project and case grants, seminars, consultancy fees, donations and recovery of costs in legal actions.

PIAC provides legal advice and representation, public policy programs and advocacy training to promote the rights of disadvantaged and marginalised people and enhance accountability, fairness and transparency in government decision-making.

PIAC’s work extends beyond the interests and rights of individuals; it specialises in working on issues that have systemic impact at both a NSW and National level. PIAC’s clients and constituencies are primarily those with least access to economic, social and legal resources and opportunities. PIAC provides its services for free or at minimal cost to individuals.

Wherever possible, PIAC works co-operatively with other public interest groups, community and consumer organisations, Community Legal Centres, private law firms, professional associations, academics, experts, industry and unions to achieve its goals.

Scope of this Submission

This submission is focused on where Australia sits globally in relation to discrimination against same-sex couples in the areas of financial and workplace entitlements.

It will address the following, limited issues:

• International human rights law relating to discrimination against same sex couples.
• International human rights law in Australia.
• International best practice.
• Recommendations.

Included at Appendix Two is a summary of one of PIAC’s cases in this area, which is indicative of the gaps in Australian law in relation to same-sex couples.

PIAC welcomes any request for further submissions in relation to these or other issues PIAC’s expertise.

International human rights law

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) affirms the equality of all people before the law and the right to freedom from discrimination in articles 2 and 26. Article 26 of the ICCPR states that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The prohibition against discrimination on grounds including race, color, sex, religion, political opinion, and national or social origin can also be said to be a core human rights norm considered to be jus cogens.[1] Therefore States must respect it in all circumstances.

While Article 2 confines the rights protected against discrimination to those under the ICCPR, the Human Rights Committee, which monitors compliance with and adjudicates violations under the ICCPR, has found that ‘the application of the principle of non-discrimination contained in Article 26 is not limited’.[2] According to the Human Rights Committee, Article 26 provides an ‘autonomous right’ that prohibits discrimination in ‘law or in fact in any field regulated and protected by public authorities’ (emphasis added).[3]

Australia ratified the ICCPR on 18 December 1972, and it came into force on 13 August 1980.

In 1994, the Human Rights Committee found in Nicholas Toonen v Australia that laws punishing consensual, sexual conduct between adult males violated protections against discrimination under the ICCPR.[4]It held that such laws violated Article 17 of the ICCPR, which states

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

The Human Rights Committee held that ‘sexual orientation’ was a status protected from discrimination under the ICCPR, specifically finding that the ‘the reference to “sex” in articles 2, paragraph 1, and 26 [of the ICCPR] is to be taken as including sexual orientation’.[5] Thus States could not abridge the enjoyment of human rights on the basis of sexual orientation.

The Human Rights Committee reaffirmed its findings in Edward Young v Australia (2003) where it found that Australia had ‘violated article 26 of the ICCPR by denying the author a pension on the basis on his sex or sexual orientation’. The individual opinion signed by two of the Human Rights Committee members points out that:

… under Covenant jurisprudence, a state party must offer ‘reasonable and objective criteria’ for making any distinction on grounds of sex or on grounds of sexual orientation.

Thus any distinction on the enumerated grounds that cannot be reasonably and objectively justified will be in breach of the ICCPR.

Convention on the Rights of the Child

The Convention on the Rights of the Child (CRoC), to which Australia is a State Party[6], is guided by four fundamental principles: the best interest of the child is the primary consideration in all actions concerning children[7]; that children have the right to survival and development; and the right to express their own views and have such views taken into account in all matters that affect them.[8]

The final fundamental principle of the CRoC is non-discrimination.[9] Article 2 states that:

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Clearly the rights enumerated under the CRoC must be applied equally to all children. However, the protection goes further, in that it is a general protection against all forms of discrimination including on the basis of the type of family a child comes from.

The Committee on the Rights of the Child has stated that in ‘considering the family environment’, it should reflect ‘different family structures arising from various cultural patterns and emerging family relationships’.[10] The Human Rights Committee has found that ‘the concept of the family may differ in some respects from state to state, and even from region to region within a state, and it is therefore not possible to give the concept a standard definition’.[11]

Arguably it is a breach of CroC if children of same-sex partners are denied equal access to the flow-on benefits of workplace or financial entitlements by virtue of the fact that their parents’ relationship is not recognised in domestic law.

Convention on the Elimination of all forms of discrimination against Women[12]

Article 1 of the Convention on the Elimination of all forms of discrimination against Women (CEDAW) defines discrimination against women as:

… any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

In its General Recommendation on equality in marriage and family relations the Committee on the Elimination of Discrimination against Women argues that whatever the form of family the treatment of women in the family ‘both at law and in private must accord with the principles of equality and justice for all people, as article 2 of the Convention requires’.[13]

Seeking to assist in the full implementation of CEDAW, the Beijing Platform for Action affirmed that “The human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality ... free of coercion, discrimination and violence.”[14] This notion was reaffirmed in paragraph 72k at the Five- Year Review of the Implementation of the Beijing Platform for Action (Beijing Plus Five), and in paragraph 59 in the 2001 Declaration of Commitment on HIV/AIDS.

An argument can be made that the prohibition against discrimination in CEDAW includes discrimination on the basis of a female’s sexuality.

Human Rights in Australian Law

Australia has formally acknowledged its obligations to protect human rights[15] through its ratification of key international human rights treaties including the:

• International Covenant on Economic Social and Cultural Rights (ICESCR), in 1975;[16]
• International Covenant on Civil and Political Rights,in 1980;[17]
• Optional Protocol to the International Covenant on Civil and Political Rights,in 1991;
• Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty in 1990;
• International Convention on the Elimination of all forms of Discrimination against Women, in 1980;[18] and
• International Convention on the Rights of the Child,in 1990.[19]

Certain provisions of CEDAW have been given force in domestic law, through the Sex Discrimination Act1984 (Cth) (SDA). Section 6 of the SDA prohibits discrimination on the basis of marital status, including discrimination against a de facto spouse. However, section 4 of the SDA defines de facto spouse as a person of the opposite sex. Accordingly, people in same-sex relationships are not protected against discrimination on the basis of their relationship. Arguably, Australia is not meeting its international obligations under the CEDAW.

Whilst the ICCPR and CRoC have not been fully implemented in Australian domestic law, both treaties are scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act). The High Court has stated that this falls short of domestic incorporation.[20] However, these treaties may have some, albeit limited, effect in Australian law. The Full Court of the Family Court held, in B & B v Minister for Immigration & Multicultural & Indigenous Affairs[21],that scheduling a treaty (in that case the CroC)to the HREOC Actafforded the treaty ‘special significance’ in Australian law. The issue was left unresolved by the High Court in its consideration of the appeal from the Family Court decision.[22] Also unresolved because of the continuing unease it has generated amongst government, is the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh.[23] The High Court found that ratification of a treaty, without implementation into domestic law, and in the absence of domestic law to the contrary, gives rise to a legitimate expectation that an administrative decision maker will act in conformity with a ratified treaty.

Australia’s international obligations may also find force through the process of statutory interpretation. When legislation is unclear or ambiguous, courts will look at other material to assist in interpretation, including international human rights standards.[24]As noted by O’Neill, Rice, and Douglas[25], international human rights standards have be given increasing importance in Australian jurisprudence through the process of statutory interpretation, by virtue of Australia’s ratification of international human rights treaties over the past thirty years. However, Australia is still in the early stages of developing its jurisprudence in this area, and some judges are more open to looking towards international human rights law then others.[26]

Significantly, in a recent decision, Royal Women’s Hospital v Medical Practitioners Board of Victoria,the Victorian Supreme Court was prepared to place significant value on international law in interpreting domestic law relating to the disclosure of medical records. President Maxwell said that statutes should be interpreted and applied, as far as language permits, in conformity with international human rights treaties; that human rights law may be used as a legitimate guide to the development of the common law; and that the provisions of an international human rights treaty to which Australia is a party may serve as an indicator of contemporary values and the public interest.[27]

International best practice

At Appendix One, PIAC has provided a summary of various international jurisdictional approaches to addressing discrimination against same-sex couples. An analysis of the summary indicates that the general approach of most states has been a progressive implementation of measures to address equality for same-sex couples, from the enactment of anti-discrimination legislation right through to full legal recognition of same-sex unions and, in some cases, marriage. Australia clearly sits on the bottom of this spectrum, not even having legislative protection against discrimination on the grounds of sexual orientation at a Federal level.

Conclusion

It is clear that international human rights laws and standards require non-discrimination on the grounds of sexuality. These laws and standards are increasingly influential in Australian law, in particular when a statute is unclear or ambiguous.

Further, as is demonstrated in Appendix One detailing international best practice, Australia is behind other developed countries in not guaranteeing equality of treatment regardless of sexuality. PIAC notes that most other developed countries guarantee fundamental human rights through the adoption of legislative or constitutional protection of human rights and/or through recognising civil unions and/or marriages between same-sex couples.

At the very least, state, territory and federal legislation should ensure equal entitlement to financial and workplace benefits. Ultimately, Australia should look to the recognition of civil unions, marriage and the passage of legislation prohibiting discrimination in order to ensure that same-sex couples have an equal place in Australian society.

Recommendations

PIAC recommends that state, territory and federal legislation governing financial and workplace entitlements be amended to ensure that these entitlements are applied equally to same-sex and heterosexual couples.

PIAC recommends that the Federal Government fulfill its international obligations in their entirety so as to ensure that same-sex couples achieve full equality through:

1. The passage of federal anti-discrimination legislation rendering unlawful discrimination on the grounds of sexuality.

1. The amendment of the definition of de facto couple as contained in part 4 of the Sex Discrimination Act1984 (Cth) so that protection against discrimination on the basis of marital status will cover discrimination against same-sex couples.

1. The amendment of the Marriage Act 1961 (Cth)so that the definition of marriage contained in section 5 of the Act includes same-sex partners.

1. The passage of legislation so that civil unions are recognised at a Federal level.

Appendix One: International Best Practice

Brazil

In Brazil civil unions for same-sex couples are recognised in some regions only. The state constitutions of Mato Grossoand of Sergipeexplicitly prohibit discrimination based on sexual orientation. As of 2003, discrimination on the basis of sexual orientation was prohibited in 73municipal statutes, including Sao Paulo and Rio de Janeiro.

The Brazilian state of Rio Grando do Sul legalised civil unions after a court decision in March 2004. Same-sex couples in committed relationships can register at any notary public office. Although it does not affect federal rights, it gives same-sex couples more equality in many areas. Same-sex couples who register have the right to jointly own property, establish custody of children, and claim the right to pensions and property when one partner dies.

Canada

The Civil Marriages Act, which was enacted in Canada in 2005, legalised same-sex marriage across Canada. Within existing laws, the approach of same-sex partners and couples of the opposite sex to protecting the financial interests and well-being of their partners are much the same.

Section 15 of the Canadian Charter of Rights and Freedoms 1982 (the Charter) guarantees every person equal benefit and protection of the law without discrimination. In particular, the Charter prohibits discrimination on such grounds as race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The Supreme Court of Canada has held that sexual orientation is an additional ground of discrimination prohibited by the Charter.

The Charter’s protection of freedom of religion grants religious institutions the right to choose not to perform the marriage ceremonies of same-sex couples if they see fit.

Canadian federal and provincial anti-discrimination legislation also prohibits discrimination on the basis of sexual orientation. In Haig v Canada[28] and Vriend v Alberta[29] it was held that failure to prohibit discrimination on the grounds of sexual orientation in the Canadian Human Rights Act 1985 and the Individual’s Rights Protection Act 1980 (Alberta) violated section 15 of the Charter by denying homosexual people the formal equality and protection from discrimination given to other disadvantaged groups.