Same-sex couples report: over 50 Federal laws discriminate

Analysis

Same-sex couples report: over 50 Federal laws discriminate

A total of 58 Federal laws discriminate against same-sex couples, compared to heterosexual couples, according to a report by the Human Rights and Equal Opportunity Commission tabled in Federal Parliament on 22 June 2007.

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A total of 58 Federal laws discriminate against same-sex couples, compared to heterosexual couples, according to a report by the Human Rights and Equal Opportunity Commission tabled in Federal Parliament on 22 June 2007. Many of these laws affect employment-related entitlements.

The report, entitled 'Same Sex: Same Entitlements', claims that these Acts all breach the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, by failing to provide equal protection, equal entitlements and freedom from discrimination.

General issues

A summary of the report's findings identified the following areas of general discrimination that are sometimes employment-related:

  1. Same-sex couples are excluded from definitions describing de facto couples. Definitions use terms such as opposite sex, spouse, de facto spouse or married couple.
  2. The 'interdependency' category does not give full equality to same-sex couples. The recent introduction of this relationship category to certain Federal laws has meant that same-sex couples can now access certain superannuation, immigration and Australian Defence Force employment entitlements that were previously denied to them. However, the category has not brought full equality, mainly because it treats genuine same-sex couples differently from genuine opposite-sex couples.
  3. Children of same-sex couples are excluded from some definitions describing parent-child relationships.

Employment-related discrimination

Chapter 6 of the report discusses employment-related issues in detail. The following is a summary of the findings.

'Federal workplace laws discriminate against same-sex couples or families in the following ways:

  • A same-sex partner is not guaranteed the same carer's leave and compassionate leave as an opposite-sex partner.
  • A lesbian co-mother or gay co-father is not guaranteed the same carer's leave and compassionate leave as a birth mother or birth father.
  • A lesbian co-mother or gay co-father is not guaranteed parental leave.
  • A same-sex partner of a Federal Member of Parliament cannot access all the travel entitlements available to an opposite-sex partner.
  • A same-sex partner of a Federal judge or magistrate cannot access all the travel entitlements available to an opposite-sex partner.
  • A same-sex couple in the Australian Defence Force does not have the same access to low-interest home loans as an opposite-sex couple.
  • Employees in a same-sex couple are not adequately protected from discrimination in the workplace on the grounds of sexual orientation.'

Workers compensation-related discrimination

Chapter 7 of the Report discusses workers compensation issues in detail. The report found that the Federal Comcare scheme and the Seacare Authority discriminate against same-sex couples or families in the following ways:

  • 'A same-sex partner is not entitled to lump sum workers' compensation death benefits available to an opposite-sex partner.
  • A same-sex partner will not automatically be taken into account for the purposes of calculating the workers' compensation sums available on an employee's incapacity.'

Other areas of discrimination

The report also addressed other areas of discrimination in some detail.

Superannuation

Chapter 13 identifies discrimination in various areas of superannuation.

Other legislation

The report also discusses discrimination in the legislation covering taxation, social security, veterans' entitlements, health care, family, aged care and immigration.

Recommendations

The report presents two main recommendations:

  1. The Federal Government should amend the discriminatory laws identified to ensure that same-sex and opposite-sex couples enjoy the same financial and work-related entitlements.
  2. It should amend those laws 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.

It suggests that the following actions could be taken:

  • enact 'sexuality discrimination' legislation along similar lines to the current Acts covering sex, race, age and disability discrimination
  • enact of omnibus legislation amending all discriminatory Federal laws, including to insert a new definition of 'de facto relationship' and 'de facto partner' - the report sets out a recommended definition
  • enact laws recognising the relationship between a child and both same-sex parents

Copies of report

The report can be downloaded from this website.

So far, the Federal Government has not responded to the report.

State/Territory EEO legislation

Note that equal opportunity legislation in some States has already been amended to include same-sex couples within their definitions of discrimination grounds such as marital status or relationship status.

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