ࡱ> _]`` 6bjbjss .R-+ .$ 8J<, K('''''''$'*h,'' ' ' '("""' '"' '""%% K, %'(0K(%,.!.%.%g:"''C"dK(' ' ' '    d       SUBMISSION TO THE HUMAN RIGHTS AND EQUAL OPPORUTNITY COMMISSION FOR ITS NATIONAL INQUIRY INTO DISCRIMINATION AGAINST PEOPLE IN SAME-SEX RELATIONSHIPS RELATING TO FINANCIAL AND WORK RELATED BENEFITS AND ENTITLEMENTS The Judicial Conference of Australia (JCA) is pleased to provide a submission to the Inquiry by HREOC into discrimination against people in same-sex relationships regarding financial and work related benefits and entitlements. The JCA was established in 1993 as an incorporated association. Its objects all relate to the public interest in maintaining a strong and independent judiciary within a democratic society that adheres to the rule of law. The JCA seeks to achieve its mission by: education of the community about the proper role of the judiciary; communication with other arms of government, for the purpose of promoting better mutual understanding; continuous improvement in the quality and accessibility of the judicial system; and research that will benefit these aims. The JCA draws its membership from judicial officers throughout Australia. The discussion paper published by HREOC makes it apparent that an issue of particular relevance to judicial officers is the legislative barrier to same-sex partners sharing superannuation and death and disability benefits earned by judicial officers. As stated by the President of the Human Rights and Equal Opportunity Commission John von Doussa QC, [m]any of Australia 's laws exclude same-sex couples from financial and work-related entitlements and benefits that are enjoyed by heterosexual couples. In 2006, this is simply not acceptable. Equality before the law is a fundamental value embedded in our legal system. This principle is also enshrined in the International Covenant on Civil and Political Rights, to which Australia is a signatory. In particular, Article 26 provides 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 JCA considers that Australian judicial officers, like other working Australians, should be able to share the fruits of their labours with their partners of either sex. Furthermore, it is important to recognise that the pension entitlements or retirement benefits provided to judicial officers play an important role in protecting judicial independence. Entitlements and benefits should be uniform among all judicial officers, State and Federal, and should reflect the principle that family members will be protected after the death of a judicial officer. The JCA considers that legislative barriers to same-sex partners sharing the entitlements and benefits earned by judicial officers should be removed. Judicial Pensions This issue is discussed in the HREOC discussion paper on page 24 at 7.9. The discussion papers states (footnote numbering altered): Under the Judges Pensions Act 1968 (Cth), a spouse who survives a deceased judge is entitled to 62.5% of the Judges pension entitlement. The definition of spouse who survives a deceased judge includes a person who was in a marital relationship with the judge at the relevant time. Under the Act, a person is considered to be in a marital relationship if the person ordinarily lived with that other person as that other persons husband or wife on a permanent and bona fide domestic basis. It is not necessary for the husband or wife to be legally married to the Judge as long as they have been living together for more than three years and the Attorney-General is satisfied that, amongst other things, the person was wholly dependent on the Judge, they had a child by birth or adoption and they jointly owned a home which was their usual residence. The use of the terms husband and wife in the Act appears to exclude same-sex relationships. The JCA agrees that the use of the terms husband and wife in the Judges Pension Act appears to exclude same-sex relationships. The consequence is that the same-sex partners of Federal Judges covered by the Act would be ineligible to receive the benefits payable to a partner of a Judge of the opposite sex. The JCA considers that the present limitation imposed by the Judges Pension Act discriminates against same sex partners without any rational justification and that the discrimination should be removed. The same issue arises in relation to death and disability benefits for Federal Magistrates under the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. This Bill, which is still before the Parliament, amends the Federal Magistrates Act 1999 to provide disability cover and death benefits for Federal Magistrates. Federal Magistrates are not covered by the Judges Pensions Act. The Bill has been the subject of a report by the Senate Legal and Constitutional Legislation Committee in May 2006. The majority report dealt with the issue of same-sex relationships in the Bill in the following terms: 2.18 Section 9E defines certain relationships for the purpose of establishing status as a beneficiary for a death benefit payment. Submissions noted that these definitions for 'eligible spouse' and 'marital relationship' do not make provision for same sex relationships. HYPERLINK "http://www.aph.gov.au/Senate/committee/legcon_ctte/federal_magistrates/report/footnotes.htm" \l "F9" [9] Mr Raphael  noted that to 'impose such discrimination' on a court which has the prime responsibility for dealing with cases under the Commonwealth Anti-Discrimination legislation is 'ironic'. 2.19 The Explanatory Memorandum explained, however, that these definitions are generally consistent with the definitions used in legislation establishing Commonwealth superannuation and pension schemes, including those contained in the Judges' Pensions Act. Additional comments on the Bill were provided by the Australian Democrats in a dissenting report. Senator Stott Despoja commented on the same-sex issue in relation to the Bill in the following terms: 1.4 Further to the brief discussion of same sex relationships in paragraph 2.23 of the Chairs report, the Democrats take this opportunity to highlight ongoing and serious concerns at the lack of recognition given to same sex couples in Australia. The Democrats share the concern raised in the Chairs draft on this point and suggest that this issue should be taken up as part of a broader debate in relation to the denial of rights for same sex couples. 1.5 The Democrats consider that this bill provides an excellent example of the continuing discrimination to which Australians in long-term same sex relationships are subject. The Democrats object to the absence in the bill of provision for same sex relationships in the payment of death benefits. 1.6 To distinguish the status of a long-term marital relationship on the basis that it must be between a husband and a wife, as Australian law currently dictates, is unfairly restrictive on same sex couples effectively living in a marital relationship. The Democrats consider this bill will add to the myriad legislation denying rights to the long-term same sex partner of a deceased person. The JCA agrees with the comments in the dissenting report. The majority report overlooks the consistent trend in State and Territory legislation towards recognising same sex relationships and rejecting the policy of denying benefits to same sex partners of deceased persons. The JCA considers that same-sex partners of Federal Magistrates should enjoy the same benefits as would be enjoyed by a husband or a wife of a Federal Magistrate. Comparison with State and Territory Arrangements As noted above, there is an evident trend in State and Territory legislation relating to judicial pensions towards recognising same sex relationships. In the ACT, a judge has the same entitlements as a Federal judge under s.4(1) of the Judges Pensions Act 1968 (Cth). However the ACT has effectively overcome the discriminatory operation of the Judges Pensions Act by adopting a definition of marital relationship in s.37U(3)(h) of the Supreme Court Act 1933 (ACT) which includes a relationship between two people of the same sex. Section 37U(3)(a) applies the Judges Pensions Act as if it was a law of the ACT. Assuming that the ACT has achieved its objective, the odd result is that the Judges Pensions Act has a more generous operation as a law of the ACT than it does as a law of the Commonwealth. This raises interesting questions as to the position of judges who hold dual commissions as both Commonwealth and ACT judges. In New South Wales same-sex partners of judges are able to receive a surviving pension upon the death of the judge. Section 6 of the Judges Pensions Act 1953 (NSW) provides for a surviving spouse to receive a pension on the death of a judge. Section 2 of that Act provides that a spouse includes a de facto partner, with the same meaning as in the Property (Relationships) Act 1984 (NSW). The definition of spouse in s.4 of the Property (Relationships) Act is gender neutral. The position in Queensland is in substance the same as that in New South Wales by a combination of ss.7 and 8 of the Judges (Pensions and Long Leave) Act 1957 (Qld) when read with the dictionary in the Schedule to that Act and s.32DA of the Acts Interpretation Act 1954 (Qld). Likewise, in Western Australia, s.7 of the Judges Salaries and Pensions Act 1950 (WA) provides for a spouse or de facto partner of a judge to receive a pension upon the death of the judge or retired judge and the expression includes a de facto partner, which is in turn defined in gender neutral terms by s.13A of the Interpretation Act 1984 (WA). In Tasmania, the same result is achieved by a combination of ss.6 and 2A of the Judges Contributory Pensions Act 1968 (Tas) and s.4 of the Relationships Act 2003 (Tas). In the Northern Territory the same result is achieved by a combination of ss.5 and 3AA of the Supreme Court (Judges Pensions) Act (NT) and s.19A of the Interpretation Act (NT). The relevant legislation in Victoria and South Australia on the other hand does not appear to recognise same sex relationships. In South Australia, the position is not entirely clear, because the Judges Pension Act 1971 (SA) does not define the term spouse. However, it appears that a surviving spouse wishing to claim a benefit would have to apply for a declaration that they were a putative spouse under the Family Relationships Act 1975 (SA). Section 11 of the Family Relationships Act defines a putative spouse to include a person cohabiting with the person as a husband or wife de facto. This would appear to exclude same-sex partners. The position in Victoria is unclear due to a lack of definition of the relevant terms in the relevant court legislation. The JCA submits that the non discriminatory approach adopted in New South Wales, Queensland, Western Australia, Tasmania, the ACT and the Northern Territory is preferable to the discriminatory legislation adopted by the Commonwealth and South Australia and the apparently ambiguous legislation in Victoria. This submission has been prepared on behalf of the Judicial Conference of Australia by Federal Magistrate Rolf Driver. The submission has been endorsed by the Governing Council of the Judicial Conference of Australia.  http://www.hreoc.gov.au/human_rights/gay_lesbian/index.html  Judges Pension Act 1968, ss7-9.  Judges Pension Act 1968, s4AC.  Judges Pension Act 1968, s4AB(1).  Judges Pension Act 1968, s4AB(2).  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