ࡱ> ` Ybjbjss 7pQt2222,^, '%'''''''''''''$P)h+*K'&&&K'`'&&&& %'&&%'&&& f2& &%'v'0'&+&+&&+&,!N&" #K'K'& '&&&&  $ BT EMBED Word.Picture.8 Submission to Human Rights and Equal Opportunity Commission National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits Submitter: Norman Jacka Male National Queer Officer Organisation: National Union of Students Address: Suite 64, Trades Hall 54 Victoria Street Carlton South, Victoria 3053 [Details removed] Fax: (03) 9650 8906 Email: queer@nus.asn.au What is the NUS National Queer Department and what do we do? Queer Departments are vehicles of representation for Queer students at all levels, campus, state and national. The National Union of Students (Queer Department) is the peak organisation established to represent and resource campus member organisations and their Queer campaigns. The National Queer Department has two elected Queer Officers who are directed by the National Queer Committee, a body made up of democratically elected students from member campuses. Along with the National Queer Committee, students can be directly involved in the National Union of Students via the State Branches of the organisation and via cross-campus collectives established in each state. We believe that Queer representation, campaigns and political activity are a vital part of any university campus, and we believe in continuing the work of the National Department and Campus Organisation to ensure campuses are welcoming and supportive for Queer students. The National Union of Students Queer Department welcomes this opportunity to respond to the HREOC enquiry to Federal discrimination against same-sex couples and aims in its submission to focus on those aspects of discriminatory laws which effect same-sex couples life on campus, not just directly, but also more broadly at a societal level. Federal laws Lack of recognition of same-sex relationships in federal law There is a woeful lack of recognition of same-sex relationships in Federal law. The anti-discrimination provisions pertaining to marital status in the Sex Discrimination Act 1984 (Cth) do not cover same-sex couples. This also extends to not allowing for parental leave to be taken by the non-biological parent in those states that do not recognise same-sex parents on a childs birth certificate. This particularly affects mature-age and postgraduate students in the workplace who may be parents in same-sex relationships but also could impact on any person in a same-sex relationship employed under a Federal industrial instrument. In all cases, amendments to Federal laws would change these things. Additionally there is no recognition of same-sex relationships for Centrelink purposes. This means that family benefits from Centrelink do not extend to same-sex couples. It also means that no allowance for same-sex relationships is made for earnings from employment for people receiving Youth Allowance who may be in such a relationship. This is particularly egregious where one of the partners is dependent on the other for support as the term interdependency as used by Centrelink only applies to heterosexual relationships. This results in a lower threshold for earnings before Centrelink benefits are deducted and lower rates of welfare benefits for same-sex couples compared to their straight counterparts. This flows through to other Federal legislation dealing with marriage and family benefits. Same-sex couples are ineligible for the Governments Family Tax Benefits, both Part A and Part B. They are also not able to split income for tax purposes, unlike heterosexual couples. Federal laws also cover life insurance and here again; same-sex couples have no rights under the laws as they currently exist. This means that a same-sex partner cannot be a beneficiary of a policy unless the insurance company itself makes provision for this and not all do. Superannuation laws were amended in 2004 for allow for a same-sex partner or other person in an interdependent relationship to be named as the beneficiary, however this applies only in the private sector and does not extend to Commonwealth public servants. This means that for example, the postgraduate student employed by the Department of Foreign Affairs and Trade studying the specialist diplomatic qualification at the Australian National University required of all DFAT employees cannot nominate his or her same-sex partner as a beneficiary to his/her superannuation fund. The same situation also applies to the undergraduate cadet employed by the Department of Finance and Administration who both studies and works part time. The repeal of the Federal Governments homophobic marriage ban in 2004, or at a bear minimum, legislation allowing for Federal recognition of same-sex civil unions would go a long way to redressing these injustices. Exemptions for religious bodies and small businesses Such provisions as do exist to protect same-sex couples and Queer people more generally in society are subject to an unjustifiable exemption for religious bodies and small businesses. Allowing people to discriminate against others on the basis of their sexuality or the nature of their relationships in the workplace or in the provision of services (many of which are effectively financial services for the poor) is wrong and contrary to the whole purpose of such protection for them as currently exists. This is particularly the case where these bodies/businesses receive Federal funding funding which comes in part from the tax dollars of Queer people. All such exemptions need to be done away with. Workplace relations The recent changes in workplace relations brought about by the Federal Governments WorkChoices legislations stand to hit same-sex coupes particularly hard. The removal of carers leave provisions from allowable award matters (which included a same-sex partner) will now mean that those under new federal awards will not be able to get leave to care for a same-sex partner if he/she falls ill. The Australian Industrial Relations Commission (AIRC) was obliged to ensure that awards did not discriminate on the grounds of sexuality this naturally includes being in a same-sex relationship. The removal of the no disadvantage test and the perfunctory process for the certification of an Australian Workplace Agreement (AWA) (which has no such protection against discrimination) by the Office of the Employment advocate represents a lessening of the rights previously enjoyed by Queer employees under Federal awards. All the more so as the government has repeatedly explicitly stated that the aim of WorkChoices is to encourage decentralisation of the industrial relations system, that is, less reliance on awards and more reliance on AWAs. The removal of the unfair dismissal provisions from companies employing fewer than 100 people will also adversely affect Queers. Cases could previously have been brought under unfair dismissal laws as dismissing someone for their sexual preference/gender history dismissals count as unfair because they are harsh, unfair and oppressive within the meaning of the unfair dismissal laws. In addition as such discrimination is often covert and builds up over time; it can have the effect of forcing a person to leave their job because of the harassment. This is known as constructive dismissal and falls under the aegis of unfair dismissal laws. Both these things will no longer be available to Queers in companies with less than 100 employees. Sexuality (which covers being in a same-sex relationship) is covered by unlawful dismissal laws which apply to all employers. However as actions under these laws are initiated in the courts with their attendant costs in legal fees rather than in the cheap, lawyer free AIRC, the cost of initiating such an action prices it well out of range of the average student, or indeed many workers generally. The Governments $4000 contribution to the cost of such a case is approximately only a tenth of the actual cost of running such a case is. Such cases are also very hard to prove as can be seen by the low numbers of unlawful dismissal cases. Importantly whilst it is unlawful to dismiss someone on account of their sexuality, it is not unlawful to not hire someone or not promote them on such grounds. The reinstatement of award protection for sexuality, of the no disadvantage test and of the previous coverage of unfair dismissal laws coupled with their extension to promotions and the hiring process in tandem with Federally legislated recognition of same-sex relationships would go a long way to improving the situation in the area of industrial relations. The Research Quality Framework (RQF) The Research Quality Framework (RQF) is ostensively aimed at improving the productivity of outcomes in research at Australian Universities. However in referencing those areas that are seen as having the greatest commercial development applications engineering, bio-medical sciences, business and IT, the government is also directing, whether by design or by coincidence funding away from other areas, particularly the humanities. This is relevant to same-sex couples because among the areas under threat from this framework are courses that analyse gender and sexuality studies. These courses pave the way for scholarly research that has played a pivotal role in fostering a greater awareness and acceptance of same-sex relationships in our society. They are usually taught and researched by Queer academics the focus of the RQF means that it is likely that there will be job cuts in these areas and as such; it will affect people in same-sex relationships in the university workplace. Attacking the funding for this research on the basis of its lack of commercial transference is an attack on same-sex couples because it effectively relegates their issues (many of which often pertain to the workplace) to the dustbin. This impedes critical analysis of those structures that oppress same-sex couples and Queer people more generally. At its broadest level the effect that the RQF has on studies pertinent to other marginalised/oppressed groups in society (Muslims, women, Aborigines etc) is to silence debate on issues effecting them and allow for the continuation of those structures that marginalise and oppress them. As funding for universities is tied to their acceptance of the RQF as provided for in the relevant legislation, the abolition of the RQF would be a direct, but important measure that needs to be taken to increase equality for same-sex couples in workplace and financial matters. It will directly benefit those Queer academics (many of whom will have same-sex partners) researching areas of concern to Queers and extend broader benefits to the community as a whole in facilitating the breakdown of discrimination in the workplace and in financial and in other matters for same-sex couples. Voluntary Student Unionism (VSU) It is no underestimation that the services Queer Departments provide across the nation, save lives. The dedicated work of student organisations and their Queer support staff are vital to then wellbeing of hundreds of Queer students in their time of need. The array of services provided are under threat from the introduction of Voluntary Student Unionism, Without these services it would mean Queer students struggling to feel connected and comfortable with themselves, would be forced to struggle entirely by themselves. This also extends to the acceptance of same-sex relationships more generally in society (and in workplace and financial matters in particular) as these are the natural corollary of same-sex attraction. I became involved in the University of Wollongong Queer collective, when I was 18 and had only told about 3 people that I was gay. I was absolutely petrified to be recognised as a lesbian and was really scared to even go into the Queer space. When I got the personal courage to deal with my sexuality I did it through writing letters to the sexuality representative on the student council. After a while I felt comfortable enough to actually speak to the sexuality officer. After I met some of the other people in the Queer collective I began to feel more comfortable. The Queer space provided me with a space where I eventually felt relaxed and like myself and I could access information. It was very exciting and I felt extremely empowered when I used the space. Eventually the friends I made through the Queer collective were there to save my life when I was suicidal and self harming. Without the Queer collective and the Queer space I would probably be dead and I know that some of my friends might have been as well. Queer Student, 22 By abolishing compulsory student union fees, Student Organisations are forced to prioritise commercially viable ventures. Meaning that they are required to consider decisions like renting their own spaces to retain income, meaning spaces such as departmental offices have to compete with commercial endeavours, for space. Most at risk are the Queer Spaces provided on campus, as they derive no financial income, and thus become unsustainable. These spaces provide a vital escape for Queer students from entrenched discrimination, and allow those not out to socialise and empower themselves in a safe and supportive environment. This is particularly so with same-sex couples who are studying at rural and regional campuses as the level of homophobia on such campuses is often higher than that experienced in metropolitan campuses. Without these spaces, it is apparent that Queer drop out levels will increase, and most concerning, those in dire need of support will not be able to access services and thus fall into an at-risk category where suicide and self-harm become an unfortunate reality. This flows through to a lessening of self-confidence (and self-acceptance) among same-sex couples in the workplace because they will have to rely on the serendipity of there being other options available to them or gain the tools to be able to fight for their rights in the workplace. Additionally, free-counselling and subsidised medical services that are accessed regularly by Queer students are also under severe threat from VSU. Student Organisations will no longer be able to sustain these services at their current levels, forcing them to reduce subsidies and in some cases cut services. The increased cost of these services will means that Queer students will no longer be able to afford to use them, meaning that they will be forced to either access the services outside of the university environment or not use or worse not be able to access support services at all. As these services off campus are often on a fee paying basis, it can fairly be said that VSU financially discriminates against same-sex couples. These changes will have the largest effect on minority groups who use the services such as Indigenous students, disabled students and Queer students. The experience of Western Australian universities under Voluntary Student Unionism provides real examples of the worrying effects of this legislation. Murdoch Student Guild and the Edith Cowan Student Guild were all but decimated and were only able to survive after emergency funding from the then Keating Government. Queer Collectives and Queer Departments on these campuses have still been unable to fully survive from the effects of VSU and the level of services they provide to Queer students, both those that are single and those that are in same-sex relationships is still at a lower level than what it was prior to the introduction of VSU in WA. Additionally, in the experience of the University of Western Australia services like the 24hr sexual assault referral centre were forced to close and have been replaced by commercial businesses. As such incidents happen in same-sex relationships as in heterosexual relationships, the closure of this service did impact negatively on same-sex couples at UWA both university employees and students. The repeal of VSU legislation and, again, Federal recognition of same-sex relationships will protect Queer spaces and by publicly showing support for same-sex relationships, help people in them achieve greater equality on campus and in society more generally. State laws Queensland anal sex laws One of the starkest legal discriminations against same-sex couples in state law, and specifically gay male couples is the provision in the Queensland Criminal Code that sets the age of anal sex at two years above that for other kinds of sex. This has the obvious effect of legally stigmatising consensual sexual acts between young gay couples. Queensland is the only state that has separate ages of consent and whilst the law is not specifically aimed at gay sex, it undoubtedly has a disproportionate effect on young gay men in Queensland. Moreover, as anal sex with a person under 18 is illegal, it opens the door for potential discrimination in the workplace for a (for example) gay male couple where one of the couple is 18 and the other is 17. This disparity must be ended. Queensland must have a single age of consent for all sexual activities, as is the case in every other state and territory. Age of consent laws Following on from this, there is the disparity in the ages of consent across the states and territories. The majority have set the age of consent at 16, but others such as South Australia have it 17. This again serves no real public policy reason and there should be a uniform age of consent across of Australia for all consensual sex, both heterosexual and homosexual. Additionally, there should also be harmonisation of the variations in ages people that can have sex with a person who is technically a minor without attracting criminal sanction under the law. For example two 15 year olds having sex or a 17 year old person having sex with a 15 year old is not currently an offence, but there are differences across the states and territories as to the allowable limit, some allow a disparity of one year, while others allow for two and this should be harmonised. Again, this has ramifications for the workplace in potential discrimination that may be faced by young same-sex couple and particularly those where one partner lives interstate or where both people in the relationship travel/move house frequently as their sexual relationship may be unlawful and leave them open to discrimination. Lack equality of legal treatment for same-sex couples Perhaps the biggest discrimination faced by same-sex couples under state law is the significant differences in the rights that the laws of the various states and territories allow same-sex couples. Some such as Tasmania and the Australian Capital Territory (until it was overturned by the Commonwealth) have instituted formal civil unions; others such as South Australia are in the process of doing this, whilst others like Western Australia and Victoria treat same-sex couples as de facto marriages. Even here however, there are variations, in Western Australia; same-sex couples have access to the Family Court to deal with the end of a relationship (based on Western Australias retention of its power to regulate marriages). This is not the case elsewhere (although obviously there is a federal aspect to this fact. Also the length of time a couple needs to have been cohabiting before they are recognised as a couple varies. This has implications in the level of legal protection a person in a same-sex relationship may enjoy in the workforce or in relation to their ability to access state government services. All these problems could be solved with the introduction of identical legislation in each state and territory formally enshrining in state/territory law civil unions for same-sex couples, continuing to allow for couples who do not want a formal ceremony to be treated as de facto couples and harmonising the rights and obligations of same-sex couples across all jurisdictions. This must include giving equality before the law between couples in a civil union on the one hand and those in a de facto relationship on the other. Equally, those who have solemnised their relationship in a civil union must be accorded the same treatment as heterosexual married couples. 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