ࡱ> }~` Pbjbjss B   Xd@,4448lD<,x8|"7777777$9h\<~8W'dd"W'W'8J28!+!+!+W'dR7!+W'7!+!+r36T"37 /ZǕ4'd67H80x86<(<37<37d !+p"$C88*dx8W'W'W'W',,,$,,,,,,  June 19, 2006 President, The Honourable John Von Doussa Commissioner Mr Graeme Innes Level 8, Piccadilly Tower 133 Castlereagh St Sydney NSW 2001 Dear President von Doussa and President Innes, Submission by the Kingsford Legal Centre to the National Inquiry into Discrimination in Same Sex Relationships: Financial and Work Related Entitlements & Benefits The Kingsford Legal Centre is one of thirty-eight community legal centres in New South Wales and is a part of the University of New South Wales. Since 1981 it has served the eastern suburbs of Sydney. The Centre currently runs a specialist state wide discrimination practice. Among the matters that it handles are cases of discrimination against people on the basis of their sexual orientation. The Centre has also been in the forefront of movements to reform the law and create better legal protections of human rights in New South Wales and Australia wide. 1. The Kingsford Legal Centre believes that the current terms of reference of the Inquiry are too narrow because they do not explicitly include consideration of many areas of discrimination with regard to same sex couples that are inconsistent with international human rights principles. Despite this concern, the Centre wishes to make submissions to this Inquiry on the situation in international human rights law in the areas of: violence against members of same sex couples, discrimination in education against members of same sex couples, and the failure to recognise marriage of same sex couples as a violation of international human rights law. 2. These submissions are made on the basis of 2(a) and (c) of the Inquiries Terms of Reference, as the Kingsford Legal Centre believes that its analysis of the above areas reveal relevant Commonwealth and state laws that are contrary to international human rights standards. It also makes its submissions on the basis of 3(c) of the Terms of Reference, in that its analysis could form a basis for the Inquiry recommending that laws be passed or altered in order to bring Australia into compliance with the International Covenant on Civil and Political Rights. Lastly, the Centre also makes its submissions on the basis that violations of the human rights of members of same sex couples in these areas ultimately negatively affects the financial and employment status of members of same sex couples and therefore affects their need and ability to make use of financial and employment related entitlements. Summary of Recommendations That this Inquiry recommend that same sex relationships be given an equal legal status to that of married heterosexual couples in Family Law. That this Inquiry recommend that laws be passed and action be taken to address the question of violence against members of same sex couples. That this Inquiry recommend that extra laws be passed and action be taken to address the question of discrimination against same sex couples and their dependants in education. Failure to Take Action to Allow Legal Equality of Same Sex Couples as a Violation of International Human Rights Law 3. The United Nations Human Rights Committee in Toonan v Australia remarked that sexual orientation was to be considered as a proscribed ground of differentiation under article 26 of the ICCPR. It found that the word sex in articles 2(1) and 26 was to be understood to include sexual orientation. This was reiterated in the Committees views in Young v Australia. In addition, in the individual opinion of Mrs Ruth Wedgewood & Mr Franco De Pasquale in Young it was remarked that the question of recognition of same sex relationships involved the issue of positive rights to intervention by the state to ensure equality under article 26. 4. In General Comment No 19 the Human Rights Committee further remarked that the concept of family is variable and that no standard definition of family can thus be given. Similarly, in General Comment 28 the Human Rights Committee stated that in giving effect to recognition of the family it is important to accept the concept of the various forms of family. 5. Although the individual opinion in Young said that the full range of reasonable and objective exceptions to discrimination had not yet been canvassed before the Committee, the Kingsford Legal Centre is of the opinion that the Committees views in Toonan and Young, when read in conjunction with the wide concept of family required in General Comments 19 and 28, reveal that failure on the part of any state party to treat same sex couples as families in the same ways as other relationships are treated as family (including with regard to the ability to access the same legal benefits as heterosexuals who are married) constitutes unacceptable discrimination under Article 26. 6. In addition, the Human Rights Committee stated in its General Comment No 4 and in many views on cases that states are under an obligation under article 26 not only to protect and promote, but also to ensure the enjoyment of freedom of discrimination. This requires a state party to take positive steps, including amendment of legislation and administrative action, to ensure that freedom from discrimination occurs in practice and not just normatively or in theory. 7. The Kingsford Legal Centre is thus of the opinion that the Federal Government was already in breach of article 26 of the ICCPR before it recently amended the definition of family in the Family Law Act 1975(Cth) in that it had not taken positive action to amend the Act or administrative practice (or pass a new act) to allow same sex couples to enjoy the same rights as heterosexual couples who are married. We submit that the federal government has further compounded this violation by amending the Family Law Act to explicitly exclude same sex couples from falling within its definition of family and in its taking action recently to use s122 of the Constitution to override the civil union laws for same sex couples in the Australian Capital Territory. 8. Lastly, the Human Rights Committee in its General Comment No31 remarked that state parties are under an obligation to take measures to prevent the reoccurrence of violations of the ICCPR beyond victim specific remedies. In terms of the much used analytical framework of a states duty to promote, respect, protect and fulfil human rights obligations state parties cannot overlook the duty to promote adherence to human rights. The Kingsford Legal Centre submits that the actions of the Federal Government in amending the Family Law Act and legislating to override the civil union laws of the ACT also constitute a failure on the part of the Commonwealth to promote adherence to the standards of the ICCPR, in that they can be seen to create an atmosphere conducive to hate, prejudice and the violations of the human rights of same sex couples and in that they do not provide any means of preventing violations of the rights of same sex couples in the future. 9. The Centre thus submits to the Inquiry that Commonwealth laws are currently in breach of article 26 of the ICCPR with regard to equal rights for same sex couples, and because of this same sex couples are disadvantaged with regard to financial and employment benefits in all Commonwealth laws that require persons to have the rights of marriage to enjoy the benefits that they provide. Violence Against Members of Same Sex Couples 10. Article 26 of the ICCPR guarantees individuals in the jurisdiction of state parties freedom from discrimination, while Article 7 guarantees such persons freedom from cruel, inhuman and degrading punishment or treatment. It will be recalled from above that the Human Rights Committee in Toonan was of the view that sexual orientation fell within the concept of sex as a ground of discrimination in Article 26. In its General Comment No28 the Committee remarked at paragraph 11 that gender based violence is to be considered sex discrimination under the terms of Article 26. 11. To our knowledge, the question of whether cruel, inhuman or degrading treatment can be committed by a non-state actor in such a way as to make a state party be in violation of Article 7 ICCPR for not taking positive action to prevent that violation has not as yet been directly addressed by the Human Rights Committee. Such a question has, however, been generally addressed by the Inter-American Court of Human Rights in the Velasquez Rodriguez Case. This case involved the disappearance of a person in Honduras by non-state actors. The Inter-American Court ruled that the disappearance had been carried out by actors with state direction, but stated that even if the state had not been involved Honduras would still have been in violation of its treaty obligations by failing to act to find and protect the person disappeared. The Court ruled that the state partys failure to act to remedy a violation of human rights perpetrated by a non-state party constituted a violation of the obligations it assumed generally under Article 1 of the American Convention on Human Rights (the equivalent of Article 2(1) of the ICCPR) and also Article 7 (the right to personal liberty) of the same treaty (the equivalent to Article 9 ICCPR). 12. In addition to the above, the CEDAW Committee in its General Recommendation 19 remarked that gender violence constitutes discrimination under CEDAW Article 1 in that it impairs or nullifies the enjoyment of human rights. Among the human rights it states are violated is the right not to be subject to torture or cruel, inhuman and degrading punishment (ICCPR Article 7). 13. In the opinion of the Kingsford Legal Centre a state is thus in violation of its obligations under Articles 2(1), 7 and 26 of the ICCPR and Article 1 of CEDAW if it does not take positive action through passing laws or through police or administrative action to ensure that violence against persons on the basis of their sexual orientation or because they are members of same sex couples is prevented. This is either because such violence is discrimination per se under Article 26 (or Article 1 of CEDAW) or because Article 7 extends to non-state actors in such circumstances. 14. With regard to violence against members of same sex couples the Kingsford Legal Centre submits that Commonwealth laws do not currently offer such protection and are thus in violation of international human rights law. In addition, in those states of Australia which have laws prohibiting violence on the basis of sexual orientation as discrimination such laws are inadequately enforced in violation of the above human rights provisions. 15. Lastly, as mentioned in paragraph 7 above, Australian governments are under an obligation not only to protect but also to promote human rights and to take general measures to prevent violations of the human rights of same sex couples. The Kingsford Legal Centre submits that this duty also extends to taking measures to combat violence against people on the basis of their sexual orientation. Such measures should include the training of police forces to take such hate crimes more seriously and general publicity campaigns against violence against people on the basis of their sexual orientation. As such measures are not currently being undertaken at any level of government in Australia the Kingsford Legal Centre submits that such a failure also constitutes a violation of the ICCPR. 16. The Kingsford Legal Centre submits that the failure of Australian governments to address human rights violations with regard to violence against members of same sex couples adversely affects and impairs their financial and employment position. This in turn inhibits the ability of members of same sex couples to access financial and employment entitlements that exist under Australian law. Discrimination Against Same Sex Couples in Education 17. The United Nations Committee on Economic, Social Cultural Rights in its General Comment No 13 has remarked that the right to education extends to all forms and levels of education and that a state must take positive measures to eliminate discrimination. In addition, the Committee states that the content of education must be non-discriminatory and in accordance with the aims and purposes of the United Nations. 18. The Kingsford Legal Centre, in accordance with the practice of some states in their periodic reports to the Committee, reads ICESCR Article 13 to include pre-school education such that education in pre-schools must also be non-discriminatory and in accordance with the aims of the United Nations. In addition, it believes that Article 13 must be read in conjunction with ICESCR Article 2(2) such that denial of education to members of same sex couples on the basis of discrimination or harassment constitutes a violation of the Covenant. 19. Some NSW government figures have recently attempted to curtail access to storybooks at local government pre-school centres that portray diverse forms of family, including same sex couples. The Kingsford Legal Centre submits that this constitutes discrimination in education under Articles 2(2) and 13 ICESCR as such actions are not in line with the purposes and principles of the United Nations. In addition, article 26 of the ICCPR also arguably applies to attempts to discriminate in pre-school curricula. The Centre is thus of the opinion that the failure of state governments to pass laws or undertake administrative action to eliminate such discrimination means that Australia is currently in violation of its ICESCR and ICCPR treaty obligations. 20. In addition, the Centre submits that in its experience significant discrimination and harassment occurs against secondary students and teachers on the ground of sexual orientation (or being the dependant of a same sex couple) in private schools in New South Wales. It submits that this is largely because s49ZO(3) of the Anti-Discrimination Act 1977 (NSW) explicitly excludes private schools from the legal prohibition of discrimination on the grounds of homosexuality. This exclusion is an increasing problem in New South Wales, as the proportion of secondary students being educated in private secondary schools has been steadily expanding. This leads in practice to employment as a teacher and education for dependants being increasingly difficult to access for members of same sex couples. As a result of this situation, the Kingsford Legal Centre submits that Australia is in violation of its obligations to ensure non-discrimination and the right to education under Articles 2(2) and 13 ICESCR and Article 26 ICCPR as these rights extend to both private and public educational institutions. 21. Lastly, as in paragraph 7 above the Kingsford Legal Centre submits that all Australian governments have a duty to promote the human rights of members of same sex couples in educations systems and to take measures to prevent violations of their rights occurring. The Centre is of the opinion that no Australian government has taken sufficient action to prevent violations of the rights of gay and lesbian people in educational institutions and thus submits that as a result Australia is currently in violation of the ICCPR in this respect also. The Centre thinks that Australian governments need to ensure that measures are in place in educational establishments in their jurisdiction to prevent human rights violations such as Codes of Conduct and publicity campaigns. 22. The Kingsford Legal Centre submits that discriminatory curricula and harassment and discrimination in education disadvantages members of same sex couples and their dependants by denying them access to (or success in) education, thereby curtailing their access to government benefits for students. In addition, upon graduation it denies members of same sex couples access to the more valuable workplace benefits that come with the better paying jobs that are available with higher levels of education. Conclusion 23. The Kingsford Legal Centre believes that his Inquiry should find that in order to properly review the financial and employment entitlements mentioned in its terms of reference questions of violence against same sex couples, discrimination in education against same sex couples and their dependants and equal legal recognition of same sex relationships also needs to be addressed. 24. The Centre submits that a proper response to these issues would be for the Inquiry to recommend equal legal recognition of same sex relationships and greater legal and administrative action to ensure non-discrimination in education and to prevent violence against members of same sex couples. If the Inquiry has any questions concerning this submission please contact Ms Anna Cody at the address above. Anna Cody, Dr Scott Calnan Director, Kingsford Legal Centre Student Law Clerk  Communication No 488/1992 Views adopted on 31 March 1994.  This is confirmed by the practice of the Committee asking state parties to report on discrimination on the basis of sexual orientation see for example the List of Issues: Ireland 25/04/2000; Summary Record of the 1961st Meeting : United Kingdom of Great Britain and Northern Ireland 23/10/2001 and List of Issues: Venezuela 28/11/2000 CCPR/C/71/L/Ven.  Communication No 941/2000 View adopted on 6 August 2003.  ICCPR General Comment No19 Art 23- A/45/40 Vol I (1990) 175 at paras 1-6.  ICCPR General Comment No28 Art 3- A/55/40 Vol I (2000) 133 at paras 1-32.  ICCPR General Comment No4 - Art 3 A/36/40 (1981) 109 at para 2.  ICCPR General Comment No31 26/5/2004 at para 17.  For example, see the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22-26 January 1997.  ICCPR General Comment No28 Art 3- A/55/40 Vol I (2000) at para 11.  Velasquez Rodriguez Case (July 29, 1988)- Series C, No 4.  The American Convention on Human Rights, Nov 22, 1969, art78, O.A.S.T.S. No 36 at 1, OAS/ser. L/V/II.23 doc.rev2 (entered into force July 19, 1978).  ICESCR General Comment No13 Art 13- E/2000/22(1999) para 6, 59 and 31 to 37.  For example ICESCR Third Periodic Report: Mongolia 23/7/98- E/1994/104/Add.21.  See ICCPR General Comment No31: The Nature of the General Obligations Imposed on State Parties to the Covenant 26/5/2004 para 8.     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