ࡱ> ` bjbjss C6 `|||5558 66Z87L77^777>68J8 ZZ\Z\Z\Z\Z\Z\Z$\h_Z|E77EEZ||77Z7I7I7IE|7|7ZZ7IEZZ7I7IX|||Z7,7 w2ȕ5FNYFZZ0Z`Y_1GT_$Z_|ZDV8f<$7I?dBiV8V8V8ZZHV8V8V8ZEEEED-55||||||  Submission of the New South Wales Young Lawyers Human Rights Committee Human Right and Equal Opportunity Commission Same Sex: Same Entitlements National Inquiry into Discrimination against People in Same-Sex Relationships Authors: Nana Frishling Sophie McWilliam Renee Saibi Alecia Simmonds Kathryn Wilson Contact: Louise Jardim Chair, NSW Young Lawyers Human Rights Committee  HYPERLINK "mailto:hrc.chair@younglawyers.com.au" hrc.chair@younglawyers.com.au Human Rights Committee NSW Young Lawyers Level 6, 170 Phillip Street Sydney NSW 2000 Same-Sex: Same Entitlements Inquiry Human Rights Unit Human Rights and Equal Opportunity Commission BY EMAIL  HYPERLINK "mailto:samesex@humanrights.gov.au" samesex@humanrights.gov.au 16 June, 2006 Dear Inquiry Members, SAME-SEX : SAME ENTITLEMENTS National Inquiry into Discrimination against People in Same-Sex Relationships The Human Rights Committee of New South Wales Young Lawyers ('YLHRC') is a volunteer group of young lawyers concerned with a range of human rights issues in both Australia and abroad. The YLHRC is grateful for the opportunity to make a submission regarding areas of discrimination against same-sex couples and make comments in the following areas: Parenting Property Rights Workplace Leave and other Entitlements Victims Compensation Health Concessions Tax Concessions Social Security Benefits Relationship recognition and definition Introduction Laws that treat married heterosexual couples in a different and unequal manner than they treat gay and lesbian couples permeate nearly every sphere of social regulation in Australia; from taxation to torts, to parenting and social welfare. They are laws which exist as a symbolic and practical affront to international instruments which seek to promote the inherent dignity and rights of all people, and to the ideals of equality and non-discrimination which form the foundation of Australias legal system. They are also laws which reduce gay and lesbian couples to marginal, fictive or often invisible legal positions. Lacking any official government recognition of same-sex relationships, gay and lesbian couples are condemned to hover around the boundaries of legal categories such as couple or parent defined exclusively and discriminatorily as being between man and woman. As their sexual orientation collides with the hetero-normative assumptions underpinning such categories, gay and lesbian couples are denied basic rights and entitlements afforded their heterosexual counterparts. Workers compensation, property rights and inheritance, social security benefits and adoption are just some of the many areas where gay and lesbian couples are defined either out of existence or forced into a shadowy realm of partial and sub-standard rights. Discriminatory criteria governing access to supposedly universal entitlements and obligations leaves them only ever able to achieve an inferior form of citizenship; an incomplete realization of the legal rights and obligations granted to others. Their relationships either do not exist in the law or they exist as figures of lack almost, but never quite, attaining the same status and rights as others. 鱨վ of gay and lesbian parents then inherit their parents marginality, with non-biological children being denied the assumed entitlements afforded to children with heterosexual parents. This most unsatisfactory state of affairs offends a range of international instruments which are explored throughout this submission. They are instruments which do not explicitly refer to sexuality or same-sex couples and their families. This does not mean that same-sex couples and their families are not recognised by the international instruments. To the contrary, a number of the provisions concerning, inter alia, the right to marry and have a family, the right to equality and non-discrimination, have been interpreted to mean that same-sex couples should enjoy the protection of human rights law. There is a strong argument that sexuality or the state of being in a relationship with a lesbian or gay person (for example, as a partner, son or daughter) fall within the term other status in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), and articles 2 of the Universal Declaration of Human Rights, the Convention on the Rights of the Child (CROC), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The provisions in the international instruments discussed in this submission encompass the principle of equality before the law, equality of opportunity and the right without discrimination to equal protection before the law. The discrimination against same-sex couples and their families by Australian laws today breach these principles, and, being unreasonable and non-objective, the international instruments in which they are embodied. Such principles are, in the words of the UN Charter, premised upon the inherent dignity and of the equal and inalienable rights of all members of the human family. Thereby, each Australian law that discriminates against same-sex couples and their families infringes on the human dignity of every gay and lesbian person within the relevant jurisdiction. The YLHRC strongly believes, as does the international community, that the equal protection of human rights, including those of gays and lesbians and their families is the foundation of freedom, justice and peace in the world. It is important to note that this submission is not intended to be exhaustive of all instances in which Australian laws discriminate against same-sex couples and their families. For example, the submission does not address termination of employment, as this is covered by the Workplace Relations Act 1996 (Cth) (WRA). Nor does it address judicial pensions, veteran pensions, defence affairs, private insurance, parliamentarian travel entitlements, or inheritance laws. Also, the submission discusses laws in the state jurisdictions in more detail than those in the federal jurisdiction because the latter are canvassed to a greater extent in the Discussion Paper. This should not be interpreted as a comparison of the degree of discrimination at either level of government. Parenting The relationships of children with their non-biological lesbian or gay parents are largely unrecognised by Australian law. The non-biological mother or father (the co-parent) is not afforded legal rights or responsibilities for the child unless that right or responsibility is covered by a parenting order which the co-parent has obtained through the Family Court of Australia as a person concerned with the care, welfare and development of the child. If same-sex partners want to share the legal responsibilities of raising the child, they can apply to the Court for joint parenting orders. It is important to note that a parenting order does not equate with legal parentage status. If the relationship breaks down and the child or children remain in the care of the biological parent, it is expensive and difficult for that parent to claim child maintenance from the non-biological parent. This is because the Child Support (Assessment) Act 1989 (Cth) only contemplates the liability of biological and adoptive parents (see  REF _Ref138161676 \r \h  \* MERGEFORMAT 1.2 below for information regarding adoption laws), and laws providing a presumption of parentage (see  REF _Ref138164198 \r \h  \* MERGEFORMAT 1.1 below) do not apply to gay and lesbian parents. In New South Wales (NSW) a parent may be able to claim maintenance for a child under the age of 12 years using the Property (Relationships) Act 1984. For gay and lesbian biological parents residing elsewhere in Australia (except for Western Australia, where the state legislation reflects the Commonwealth legislation), the only other option is a claim of promissory estoppel in the state court, using a complex and ultimately expensive litigious process. Conversely, and strangely, where the child or children remain in the care of the non-biological parent, that parent may claim child maintenance from the biological parent under the Child Support (Assessment) Act 1989. In addition, when a relationship breaks down, same-sex couples seeking the settlement of both their property disputes and their parenting disputes are unable, as are married couples (and shortly, heterosexual de facto couples), to do so in the one court. They may be, and their children may be, faced with the emotional and financial stress of going through the processes of both the Family Court of Australia (regarding parenting) and the relevant state court (regarding property). This state of the law is unsatisfactory. The fact is lesbian and gay families do have, and will continue to have, children. In light of this fact, any debate concerning the appropriateness or otherwise of gay and lesbian parenting is redundant, particularly in the context of the best interests and the rights of the child. The distinction drawn between heterosexual and same-sex parents has the potential to negatively impact the various rights of children. Article 2 of CROC provides: 1. 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 childs or his or her parents or legal guardians race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. 2. 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 childs parents, legal guardians, or family members. The distinction not only infringes the rights of the child, but also the principle of non-discrimination embodied in the various international instruments, and the right to a family. Significantly, Article 10 of the ICESR provides that the: widest possible protection and assistance should be accorded to the familyparticularly for its establishment and while it is responsible for the care and education of dependent children. Presumptions of Parentage Most territory and state legislation dealing with the presumption of parentage is framed in a discriminatory manner. The relevant legislation predominantly only applies presumptions where a man and woman cohabit, thereby excluding same-sex couples. For example, s.10 of the Status of 鱨վ Act 1996 (NSW) provides that: A child born to a woman is presumed to be a mans child if, at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the man and the woman cohabit but are not married. Section 189 of the Family Court Act 1997 (WA), s.5 of the Status of 鱨վ Act (NT), s.18E of the Status of 鱨վ Act 1978 (Qld), s.8 of the Status of 鱨վ Act 1974 (TAS) are framed in almost identical terms. While the Family Relationships Act 1975 (SA) and the Status of 鱨վ Act 1974 (Vic) seem to provide for presumptions of parentage in the context of a marriage only. Only ACT legislation refers to presumption of parentage in gender neutral terms. Section 8 of the Parentage Act 2004 (ACT), states that: (1) A person is presumed to be a parent of a child if the person was in a domestic partnership with the woman who gave birth to the child at any time during the period beginning not earlier than 44 weeks, and ending not later than 20 weeks, before the birth of the child. A domestic partnership is defined in a non-discriminatory manner in s 169 of the Legislation Act 2001 (ACT), which provides: (1) In an Act or statutory instrument, a reference to a persons domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person. (2) In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same-sex, living together as a couple on a genuine domestic basis. By providing for a presumption of parentage solely in the context of a heterosexual couple, a child born into a same-sex couple will experience significant disadvantage, in particular in relation to issues such as benefits and child support in the event of subsequent separation. It is important to consider current legislation in light of Australias obligations pursuant to the CROC. Article 3 provides that: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. While Article 18 provides: 1. State Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. Article 27 deals with the right of every child to an adequate standard of living and the responsibility of parents/a parent to secure this. It relevantly provides: 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements. It is submitted that the discriminatory legislation relating to presumptions of parentage provides a significant obstacle to the fulfilment of the principles enunciated in CROC. Adoption Most State and Territory legislation pertaining to adoption does not allow same-sex couples to adopt children as a couple. It is submitted that legislation to this effect is fundamentally discriminatory and in contravention of our obligations under the ICCPR. In New South Wales, s.26 of the Adoption Act 2000 (NSW) provides that: An application for an adoption order may be made in accordance with this Act solely by or on behalf of one person or jointly by or on behalf a couple. Couple is defined in the dictionary as a man and a woman who are married, or have a de facto relationship. Section 12 of the South Australian Adoption Act 1988 only allows adoption orders to be made in favour of persons cohabiting together in a marriage relationship. Section 4 defines marriage relationship as a relationship between two persons cohabiting as husband and wife or de facto husband and wife. In Victoria, s.11 of the Adoption Act 1984 allows for adoption orders to be made in favour of a married man and woman or those living in a de facto relationship. Section 4 defines de facto relationship as the relationship of a man and a woman who are living together as husband and wife on a genuine domestic basis, although not married to each other. In Queensland, the Adoption of 鱨վ Act 1964 only allows for an adoption order in favour of a husband and wife jointly (s.12). In the Northern Territory, adoption by a couple is dealt with in s.13 of the Adoption of 鱨վ Act which only permits adoption orders in favour of a married man and woman. On the other hand, adoption legislation in Western Australia, Tasmania and the ACT is framed in gender-neutral terms. In Western Australia, s.39(1) of the Adoption Act 1994 (WA) provides that a joint application for adoption can be made if an applicant has been married to, or in a de facto relationship with, the other applicant for at least 3 years. Section 13A(1) of the Interpretation Act 1984 (WA) provides that: (1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship. Section 20(1) of the Adoption Act 1988 (Tas) provides that: An order for the adoption of a child may be made in favour of two persons who, for a period of not less than 3 years before the date on which the order is made, have been married to each other or have been the parties to a significant relationship which is the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003. Section 4 of the Relationships Act 2003 (Tas) defines a significant relationship as a relationship between two adult persons (a) who have a relationship as a couple; and (b) who are not married to one another or related by family (s,4). Finally, s.18(1) of the Adoption Act 1993 (ACT) provides that an adoption order can be made in favour of two people jointly, being a couple: (b) who, whether married or not, have lived together in a domestic partnership for a period of not less than 3 years; and (c) who, in the opinion of the court, have demonstrated the stability of, and a commitment to, that relationship. As outlined in the section on presumptions of parentage above, a domestic partnership is defined in a non-discriminatory manner in s 169 of the Legislation Act 2001 (ACT). Article 21 of CROC, to which Australia is a signatory, provides that: States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration. By excluding same-sex couples from the adoption process, the ability of an authority to consider the best interests of the child is significantly curtailed. It is submitted that the non-discriminatory approach of Tasmania, Western Australia and the ACT should be adopted in all States and Territories. Property When the relationship breaks down: property disputes Same-sex couples are placed by legislation in each state and territory, except South Australia, in the same category as unmarried heterosexual couples. Whilst there is minimal variation in the definition applied by each state and territory, there is variation in the principles of property division in each. For example, courts in NSW are directed to contribution factors only while in the ACT and Queensland, the courts include the twin principles of contribution and future need similar to the Family Law Act 1975 (Cth). Married couples come under the Family Law Act, and with the exception of Western Australia, can access the Family Law Court of Australia when there is a property dispute between them. Thereby, same-sex couples, and unmarried heterosexual couples, who can access the state courts only, are treated differently by the law when it comes to property disputes. Whilst state and territory legislatures have moved to overturn this difference by referring their powers over de facto couples property law disputes to the Commonwealth, and have made it clear that same-sex couples are included in their referral power, the Commonwealth is expected to not accept this aspect of the referral. Consequently, as the jurisprudence of the different courts develop, there is a risk that same-sex couples will find themselves subject to different legal principles in the even of a property dispute to those applied to their heterosexual counter-parts. Stamp duty In every state and territory apart from South Australia, a person is no longer penalized in the form of paying stamp duty where conveying title in real property to their same-sex partner. Previously to the widespread legislative amendments changing stamp duty acts, a conveyance of title to a male or female spouse in a heterosexual relationship was exempt from paying stamp duty on the transaction, whilst a similar conveyance to a same-sex partner was not afforded that exemption. This remains the case in South Australia. Under s.71CB of the Stamp Duties Act 1923 (SA) the transfer of interest in the matrimonial home between spouses to a joint title, or to divide the title between former spouses, is exempt from the payment of stamp duty. Spouse is defined by s.2 of the Act to include only a de facto husband or wife of the person who has been co-habiting continuously with the person for at least three years. In other states and territories the definitions of spouse will include a de facto relationship which includes a same-sex partnership and thereby exempts a same-sex partner from paying stamp duty on the transfer of real property to joint title, or from separating a joint title upon the break-up of a relationship: ss.43, 3 Duties Act 2000 (VIC); s.67 Duties Act 1997 (NSW); ss.4, 75C Stamp Duty Act 1921 (WA); s.8E Stamp Duty Act 1978 (NT), s.3A De Facto Relationships Act (2000) (NT); s.55 Duties Act 2001 (TAS), Parts 2 & 7 Relationships Act 2003 (TAS); s.74B Duties Act 1999 (ACT), s.3 Domestic Relationships Act 1994 (ACT); Part 13, Schedule 6 Duties Act 2001 (QLD). It is submitted that for a same-sex couple in South Australia to pay stamp duty in these circumstances is discriminatory. Accordingly it is the Committees submission that South Australia pass necessary legislative amendments in accordance with the non-discriminatory approach by other states in relation to this issue. Workplace leave and other entitlements There are a number of work related areas where discrimination against same-sex couples is allowed. While a member of a same-sex couple cannot have their employment terminated for being in such a relationship, there remains other areas where such protection does not exist. It is therefore submitted that Australia is in breach of is obligation of treating everyone equally before the law, pursuant to the UDHR and ICCPR. In addition, the ILO Convention 111 deals with discrimination in general, which could be interpreted to mean being subjected to any detriment related to an employee's working life on the basis of being part of a same-sex couple. However, it is important to note that neither the UDHR nor ILO111 specifically refer to differential treatment or discrimination on the basis of sexual preference or membership of a same-sex couple. Nonetheless, the anti discrimination movement generally seems to include sexual preference as a prohibited ground. Workers Compensation While changes have been made at the state level in relation to workers compensation to ensure that discrimination against same-sex couples in the event of the death of one of the partners of the couple, the same cannot be said of the Commonwealth scheme for workers compensation - ComCare. The definition of spouse specifically identifies as coming from a relationship between a man and a woman. Neither does the definition of dependant capture same-sex relationships. Therefore, while the most obvious work-related area of discrimination, being termination of employment, has already been prohibited, both by the Workplace Relations Act 1996 (Cth) (WRA) and the various pieces of state and federal legislation, there still exists a number of areas where discrimination is allowed to exist. They are all attached to the fact that same-sex partnerships do not always fit within the definition of spouse or dependant. Unfortunately, with the current government taking the position that same-sex marriage will remain outlawed, it is unlikely that this situation will change. Superannuation Superannuation is governed by a number of different legislative instruments depending on whether the scheme is privately or government run. The Superannuation Industry (Supervision) Act 1993 (Cth), applies to private sector superannuation funds was amended to remove the disadvantage suffered by same-sex couples in relation to death benefits paid on the death of one of the partners by widening the definition of dependant. The Superannuation Act 1976 (Cth), however, has not kept pace with these changes. The definition of spouse specifically refers to people in a marital relationship, a relationship which, of course, is not open to same-sex couples. Therefore, in relation to death benefits, the surviving partner of a same-sex relationship is not entitled to access to those benefits. A similar definition of spouse is carried across to the scheme for Parliamentary Superannuation. Unfortunately, though, same-sex couples are denied access to the Super Contributions Splitting initiative under the Superannuation Industry (Supervision) Act 1993 (Cth) as the relevant regulations restrict the scheme only to spouses - which denies access to de facto partners or relationships of interdependency. Leave Parental Leave However, in relation to parental and adoption leave, there is the potential for discrimination in relation to whether same-sex couples are able to take advantage of parental leave in the instance of pregnancy or adoption. While arguably a same-sex couples might fit within the de facto spouse, the fact remains that the term defacto spouse is not defined, and therefore leaves the possibility open for a same-sex couple not to fit within the term. As raised in the Discussion Paper however, the legislation uses gender specific terminology which would seem to remove the possibility of it being interpreted to include-same-sex couples. In NSW, parental leave is described as maternity and paternity leave, however, is also described in relation to the employee's spouse, which is taken to include a de facto spouse. However, in QLD, in respect of parental leave, the definition of spouse does not include a defacto spouse, which would discriminate against same-sex couples who have a child. In Tasmania, parental leave is defined in relation to an employees 'partner' as defined in the Relationships Act 2003 (Tas), which is someone who is in a personal relationship. This, obviously, would capture those in a same-sex relationship. Carers/Personal and compassionate leave While carers/personal and compassionate leave can be taken in respect of a member of the employees immediate family or a member of the employees household (WRA, s 244), which while not expressly referring to people in a same-sex relationship, would probably cover those in such a relationship. This situation is reflected in QLD, NSW, WA (where carers leave is taken in respect of a member of an employee's family), SA. Tasmania's legislation does not appear to rule out the use of carers' leave in respect of a partner within a same-sex couple, but does not specifically provide for it as other states have. Victims Compensation In each state and territory there is a government scheme of some form entitling primary and secondary victims of crime to compensation. The scheme is basically entails the provision of financial compensation for the physical and psychological suffering inflicted upon the victim as a direct result of a crime committed. The rights of victims have been the subject of increasing legislation in the states and territories over recent decades largely owing to a highly vocalised victims rights movement. Key policy reports and declarations have focussed on the powerlessness of victims of crime, and their families, in what has been and continues to be a highly politicised process where advocates have called for the criminal justice system to recognise and respect the experience of the crime victim. At a macro level the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations in 1985, setting out certain guarantees for victims of crime including that there be statutory financial compensation schemes for families of primary victims where they have become mentally and physically incapacitated as a result of the victimisation (Article 12). Whilst the doctrine of rights informs the victims movement in most states and territories, NSW has gone further and enshrined in victims legislation rights of victims in the NSW Charter of Victims Rights in the Victims Rights Act 1999 (NSW). The NSW Charter states explicitly that a victim of crime is entitled to make a claim under a statutory scheme for victims compensation [6.12 Rights Act]. In this context of the discourse of the victims rights movement, an anomaly arises in the consideration of the compensatory rights of same-sex partners where a primary victim has died. There is no uniformity of approach across the states in the approach to such secondary victims, such that in one state a same-sex partner is explicitly excluded from being considered for compensation, whilst in another a same-sex partner of similar standing is expressly included. Thus in Victoria a related victim of an act of violence is entitled to compensation under s.11 of the Victims of Crime Assistance Act 1996, which does not include the same-sex partner of a murdered victim. A related victim is considered to be a close family member where there is a genuine personal relationship and who is the victims spouse, that is, to whom the person is married (s.3 Assistance Act). In South Australia a secondary victim is eligible to claim statutory compensation for grief suffered as a result of a homicide where that person is the spouse of the deceased victim (s.17 Victims of Crime Act 2001). A spouse is defined under s.4 of the Act to include a putative spouse, which is defined in s.11 of the Family Relationships Act 1975 to be a person cohabiting with that person as the husband or wife de facto of the victim. A husband or wife is considered under s.10a to include only opposite sex partners living together on a genuine domestic basis. Conversely, in Tasmania, New South Wales and the ACT, a same-sex partner is given equal status under victims compensation legislation. In NSW a family victim eligible for statutory compensation under s.6 of the Victims Support and Rehabilitation Act 1996 includes a partner of the same-sex, who has cohabited with the victim for at least 2 years. In Tasmania gender neutral language has been adopted, a related victim including those in a personal relationship within the meaning of the Relationship Act 2003. In the Relationship Act a personal relationship includes one where there is a significant relationship between two adult persons (a) who have a relationship as a couple; and (b) who are not married to one another or related by family (ss. 4,5). In the ACT a related victim entitled under s.16 of the Victims of Crime (Financial Assistance) Act 1983 to compensation following the homicide of a partner includes the domestic partner of the victim. Domestic partner is defined in s.169 of the Legislation Act 2001 as including someone who lives in a domestic partnership, including two people, whether of a different or the same-sex, living together as a couple on a genuine domestic basis. Similarly in the Northern Territory under s.5 of the Crimes (Victims Assistance) Act 2004 a person in a de facto relationship is entitled to apply for compensation where their partner has died as the result of a crime. The De Facto Relationships Act 2004 defines such a relationship in s.3A in gender neutral terms and takes into account various characteristics of the relationship such as whether a partner is living together, whether there is a sexual relationship, and so forth. Such clear exclusion from a victims compensation scheme of same-sex partners of homicide victims and the discrepancies between states is problematic. For a secondary victim to be ineligible to receive compensation where there is a statutory exclusion on the basis of their relationship is unjust, discriminatory and fails to afford with the ICCPR and the ICESCR. On a practical level, the existence of exclusionary legislation means that not only will secondary victims of crime who are of the same-sex as their deceased partner have to deal with the injustice of losing a loved one as the result of a crime and the financial, emotional and psychological effects that consequently are incurred, but that suffering will then be compounded, in some states, by not receiving adequate financial and psychological support. In recognition of this infliction it is our submission therefore that the legislation in Victoria and South Australia be amended to include same-sex partners explicitly in compensatory legislation such that a secondary victim of crime is entitled to compensation where the death of their partner who is of the same-sex in the same way that a secondary victim whose partner is of the opposite sex is so entitled. Health Health in a rights-based framework The ICESCR states that signatory parties shall recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art. 12). The right to the highest attainable standard of health was first reflected in the World Health Organisation Constitution (1946) and in the World Health Declaration adopted by the World Health Assembly in 1998. Attaining this standard of health is associated with a claim to a set of social arrangements - including norms, institutions, laws and an enabling environment - which will secure the enjoyment of this right. The YLHRC considers health to be not only a question of physical fitness, but also psychological wellness. It is a holistic issue then, constituted in a social as well as medical context. In that case a right to health should be viewed as closely associated to, and in many cases dependent upon, the realisation of other human rights discussed in this paper, including the right to equality and freedom from discrimination. The interlinked nature of health and human rights was recognised in General Comment 14 adopted by the Committee on Economic, Social and Cultural Rights in May 2000. The General Comment identifies four criteria by which to evaluate the right to health, one of which states that health facilities, goods and services should be available and accessible without discrimination on identified grounds including sexual orientation. It is within this rights framework that the Committee has approached the issue of possible discrimination against same-sex partners in the context of the provision of health services at the Commonwealth level, in relation to the PBS specifically, and at the State level more generally with a view to identifying any possible areas of discrimination in the health context. Whilst in Australia discrimination in the context of health care is not always necessarily overtly exercised against same-sex couples and their children, the continued failure to universally recognise same-sex partners as being in a legitimate legal relationship does have an impact on the health of citizens in same-sex relationships. Further, even where there are legal structures in place which attempt to prevent discrimination in the provision of health care to people in same-sex relationships, actual practice has revealed that direct or indirect discriminatory practice still occurs. In light of this contextualising statement it is the YLHRCs submission that there should be equality in all aspects of health care not only in relation to the physical status of a person but also in relation to their same-sex partners rights and responsibilities in relation to that physical status. It is not considered that health care is any way withheld or denied to those in a same-sex relationship, rather it is the manner in which health services are provided that will potentially be discriminatory. Health care should extend to the provision of services, such as the Pharmaceutical Benefits Scheme, and should extend to the medical treatment of same-sex partners, such as where one member of that partnership is incapacitated and an issue of consent arises. 5.1 Commonwealth : Pharmaceutical Benefits Scheme The Pharmaceutical Benefits Scheme is outlined at paragraph 7.4.1 of the HREOC Issues Paper. After outlining the PBS scheme the Commission outlines the effect of the scheme on same-sex couples as follows However, for the purposes of qualifying for safety net concession cards and pharmaceutical benefit entitlement cards, a family is defined to include the persons spouse and children. The definition of spouse includes a de facto spouse but a de facto spouse must be of the opposite sex. It therefore appears that a same-sex couple will be denied access to these health concessions. (References excluded) The PBS, therefore discriminates against families in which there is a same-sex couple. This effect also directly impacts upon the health care of children. Such blatant exclusion of same-sex couples from the benefits of discounted medication is a violation of the ICESCR standard of providing the highest attainable standard of care as part of the human right to health. This is particularly so for same-sex families in lower socio-economic social brackets who will obviously suffer considerable financial difficulties upon the occurrence of a long term or serious illness suffered by a parent or a child. Further, in excluding same-sex families from the benefits of the Scheme, the legislative structure fails to protect children from suffering any discrimination under Article 2(2) of the CROC, as outlined above at 2. Discrimination in the context of State and Territory legislation; status of same-sex partners in relation to service provision: issues of medical consent and guardianship Discrimination in the state and territory provision of health services has been identified in relation to the act of giving medical consent by a person where their partner, of the same-sex, is incapacitated. The right to give medical consent for medical procedures to be conducted on an incapacitated person generally falls to the next of kin. Next of kin care extends to the right to visit a patient in intensive care and to take bereavement and family leave, the ability to authorise organ donation and post-mortems. The ambit of next of kin care is a blurred area for same-sex partners, and it is not clear from state and territory legislation that a same-sex partner will be granted the same rights automatically by health professionals as granted to heterosexual partners. The uncertain status of same-sex partners in some States appears to mean that there is no automatic right of same-sex partners to give medical consent or be consulted by medical professionals about the care of their partner. At the very least, legislation governing the relationship of same-sex partners in this context of an incapacitated person is unclear and it is the Committees submission that the same-sex partner of an incapacitated person should automatically receive the same rights and be of the same status as a heterosexual couple. Same-sex partners in all states and territories are not necessarily guaranteed next of kin rights which are afforded to heterosexual couples. Given that in some states there is a lack of legal recognition of same-sex relationships, and that in all States and Territories next of kin does not necessarily expressly include same-sex partners in relation to these issues, it would be prudent for same-sex partners to apply to be an agent or guardian or exercise an enduring power of attorney. Indeed prominent advocacy groups for gay and lesbian couples similarly recommend same-sex couples protect and assert their status in this way, including the NSW Gay and Lesbian Rights Lobby. Same-sex couples are not discriminated against in gaining that status. In Victoria, for example, members of a same-sex couple can each apply for an enduring power of attorney (medical treatment) as an agent under s.5A of the Medical Treatment Act 1988. In South Australia, same-sex partners have to apply to the Guardianship Tribunal in order to appoint each other as guardians under s.8 of the Consent to Medical Treatment and Palliative Care Act 1995. Similarly in NSW an applicant can apply to be an enduring guardian under s.6B of the Guardianship Act 1987. Whilst no legislative discrimination has been identified in the schemes for providing guardianship and consent in the context of a same-sex relationship, it is recognised by the Committee that the lived experience of the legislation may possibly highlight difficulties in relation to the giving of consent for medical procedures to be carried out on both adults and children in a same-sex family. Such anecdotes are beyond the experience of this Committee, however it is considered that personal stories provided to the Committee may indicate issues in relation to these points. Even a brief review of anecdotal evidence in secondary sources and research studies, some of which is outlined below, suggest that same-sex partners continue to be discriminated against in this area of health service provision. An illustrative example of how a same-sex partner may be excluded from taking part in the care of or decision-making in relation to a same-sex partner, is provided by an extract from the Tasmanian Gay and Lesbian Rights Group submission to the Joint Standing Committee on Community Development (TAS) (2003): Example In June 1998 the female partner of Alice Johnson (nor her real name) had a stroke at work and was rushed to a private hospitalWhen Alice went to see her incapacitated partner she was told by the hospital administration that she could not see her and could have no say over her treatment. The directive had been issued by the biological family of Alices partner. This was despite the fact that Alice and her partner had been together for 25 years Anecdotal evidence provided after this 1998 anecdote in other secondary sources continue to suggest that such scenarios continue to occur and medical professionals will often override the obvious interests of a same-sex partner in the care of a patient in deference to a more easily determined biological next of kin. In the context of health care the Victorian Government has similarly recognised that: the majority of gay men and lesbians have had experience of homophobic health professionals; Medical practitioners have, at times, refused treatment or given less favourable treatment to gay men and lesbians because of their sexuality; The right to provide medical consent may be refused to same-sex partners, in spite of the fact that it is now illegal to do so. The Law Institute of Victoria included in its submission to the Human Rights Consultation Project (VIC) (2005) in the context of health care assertions about the discriminatory treatment of those in a same-sex relationship, noting same-sex partners havebeen refused hospital visitation rights or the right to give medical consent. This suggests that there is a need to more clearly articulate, at every level, the equality of status of a de facto same-sex couple with a heterosexual couple. The health of same-sex partners and their children equates to psychological, physical and emotional well-being. Where the provision of health services is discriminatory, or where other sectors of civil and political rights are denied to same-sex couples such that same-sex partners must continually establish the primacy and acceptability of their relationships, the health of same-sex partners and their children will suffer. It is our submission that discriminatory treatment in other sectors strictly external to health issues negatively impacts upon health as well as where there is a direct health issue, such as the giving of consent for medical treatment. Given anecdotal and research evidence asserted in the secondary sources of information outlined above, it is considered that changing the status of same-sex partners legally and generally in the community will have an impact upon how same-sex partners are treated in situations where their incapacitated partner requires a form of medical treatment requiring consent from the next of kin. Therefore the YLHRC recommends that: the Pharmaceutical Benefits Scheme be amended to extend to families where there is a same-sex relationship by changing the definition of spouse in the National Health Act to include de facto couples of the same-sex; and that the situation of a same-sex partner in relation to the giving of medical consent for the treatment of their incapacitated partner be clarified in the context of State and Territory legislation, and legislation be amended such that same-sex partners do not have to suffer the burden of re-asserting the primacy of their relationship in order to obtain the right to give consent, and such that same-sex next of kin are automatically afforded the same rights as a heterosexual couple in the same situation. Tax As stated in the Discussion Paper, the gender-specific definition of spouse in the Income Tax Assessment Act 1936 means that same-sex couples are not entitled to the benefits of a variety of tax rebates, including: the dependent spouse rebate; the housekeeper rebate (for a housekeeper caring for certain dependents of the taxpayer); the parent rebate (for a parent of a spouse who is a dependent); the superannuation rebate (for contributions made to a partners superannuation); the medical expenses rebate (for expenses incurred by a dependent); the tax rebate for low income aged persons; and the pensioner rebate. In addition, Medicare levies are determinable by family income, this being the combined income of the tax payer, and tax payers spouse. Where that combined income is below the family income threshold, the taxpayer can pay a reduced Medicare levy. This concession is not extended to same-sex couples because the Australian tax system defines the couple as two individuals, and assesses their thresholds accordingly. This discrimination means that same-sex couples and their families or dependents do not receive the same entitlements as their heterosexual counterparts. This is inconsistent with a number of the provisions of international instruments discussed thus far providing for equality before the law, the right to the widest possible protection of the family, and the right to social security. Social Security Benefits Under current Australian social security law, as enshrined in the Social Security Act 1991 (hereafter the Act), gay and lesbian relationships and their social and legal status as existing in a couple are denied. Their affective and emotional relationships are circumscribed by the heterocentric definition of a couple under the Act, as they are in other legislation discussed in this submission, and they are forced into a fictive state of singledom. This unsatisfactory legal, economic and social status ascribed to lesbian and gay couples is a product of the discriminatory eligibility criteria outlined in s.4(1) of the Act which defines a partner as the other member of a couple. Section 4(2)(b)(i) states that a person is only a member of a couple if he or she is of the opposite sex. As HREOC notes, this is of particular concern in instances of 1) partner bereavement payments; 2) widow allowance; 3) access to health care cards and pensioner concession cards. It is also noted that qualification criteria for a parenting payment will be different for members of a same-sex partnership because neither is a member of a couple. Similarly, a woman in a same-sex couple will not get the benefit of the simpler qualification criteria from an age pension on the death of her partner. Finally, it should be noted that as lesbian and gay couples exist outside the constrained parameters of what constitutes a couple they are denied a partner allowance in cases where their partner may be receiving the disability support pension, age pension, mature age allowance, sickness allowance, special benefit, Newstart allowance, youth allowance, Austudy or Abstudy. In limiting the definition of a couple to heterosexual people, the Government is in breach of numerous international conventions to which Australia is a signatory. These are outlined below: Article 9 of the ICCPR provides that The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance. Why the notion of everyone who has a right to social security should be restricted to those who choose to engage in a heterosexual lifestyle defies logical explanation. Article 25 of the UDHR provides that Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his [sic] control. Most obviously s.43(1A) of the Act which discriminates against widowed lesbians is in breach of this most fundamental provision of the convention, as is s.6A of the Act which precludes gay and lesbian couples from accessing health care cards and concession cards. Similarly, partner bereavement payments can mean the difference between being able to maintain an adequate standard of living and health while one accommodates and mourns the loss of another and sliding into economic depravation and social isolation. In denying this to gays and lesbians the Act not only denies basic human rights but also curtails fundamental economic and social rights. Article 11(1) of the ICESR relevantly provides that The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The State Parties will take appropriate steps to ensure the realization of this right. For economically disadvantaged lesbian and gay families in need of social security, the inability to claim a parenting payment as provided for heterosexual couples under s 500B, 500C and 500V of the Act can result in a serious diminishing of their standard of living. In placing their economic security at risk, the Act jeopardises the ability of gay and lesbian families to provide for their children and themselves in the form of adequate food, clothing and housing. Principle Four of the UN Declaration on the Rights of the Child provides that The child shall enjoy the benefits of social security. He [sic] shall be entitled to grow and develop in health; to this end special care and protection shall be provided both to him and to his mother, including adequate prenatal and postnatal care. The child shall have the right to adequate nutrition, housing, recreation and medical services. The analysis above is particularly pertinent to this Principle of the Declaration. Article 14(3) of the Draft Convention on the Rights of the Child provides that The State Parties to the present Convention, in accordance with national conditions and within their means, shall take appropriate measures to assist parent and others responsible for the child to implement the right to a standard of living adequate for the childs physical, spiritual, moral and social development and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. Once again, the analysis offered in relation to Article 11(1) ICESCR. Same-sex couples: government recognition and definition There are a number of models by which a government may recognise lesbian and gay couples. These can be broadly categorised as either opt-in models or presumptive models. Opt-in models include civil unions, marriages, and registration or declaration schemes. Presumptive models include those by which the government may recognise a couple exists for a certain purpose (absent a civil union, etc) when that couple satisfies certain criteria. Recognition of lesbian and gay couples and their families occurs at the state and federal government level in Australia via the presumptive model (with the exception of Tasmania, and currently the ACT). The criteria which need to be met under the Australian presumptive models vary not only from state to state, and again at the federal level, but also between different pieces of legislation within the state. (It is noted that the criteria are non-gender specific: they may be applied to heterosexual couples to recognise de facto status or interdependency). Whilst the YLHRC supports presumptive models of relationship recognition, and the use of pre-determined criteria within those models, it is concerned that where those models and criteria are used, they be consistent with the different reality of gay and lesbian couples from that of heterosexual couples. For example, most presumptive models require a couple to cohabit, or to have done so previously. Given the continued discrimination against same-sex couples many may not choose to be recognisable as couples by cohabitating, or by doing so openly. Similarly, criteria which prescribes that weight be given to public reputation when determining the existence of a relationship is inconsistent with the reality of gay and lesbian couples. Thereby, the YLHRC does not support the use of prescriptive criteria, all of which must be met. Also, whilst the YLHRC does support the use of opt-in models, for the same reason, it does not support their use in the stead of presumptive models. Government models and criteria for recognition of gay and lesbian couples should not be more onerous in application to gay and lesbian couples than those applied to heterosexual couples. The YLHRC questions the use of different or alternative models or criteria in accordance with whether they are applied to gay and lesbian couples or heterosexual couples. Conclusion The YLHRC notes with regret that there are still a number of areas where same-sex couples are subjected to discrimination merely because of the gender of their partner.At a time when the ACT has attempted to recognise same-sex relationships, and has been thwarted in such an endeavour by the Coalition government, it is important to focus on the provision of substantive equality by ensuring that discriminatory legislative provisions are amended so as to remove the discrimination. There is both a symbolic and economic dimension to the discrimination which gay and lesbian couples experience under Australian laws. On an economic level the heterocentric definition of a couple can reduce gays, lesbians and their children to a state of penury which offends a range of International Instruments and is unnecessary in a wealthy and supposedly egalitarian country such as Australia. On a symbolic level, it forces lesbians and gays to occupy a fictive legal position, bearing as little reality to the depth and meaning of their own relationships as it does to the diversity of the Australian populus. The law must symbolically and practically recognise that lesbian and gay couples can and do commit to an intimate personal relationship and shared life. Should the federal and state governments seek to amend laws in order to end discrimination against gay and lesbian couples, justice would mandate that such amendments be made comprehensively and simultaneously throughout the relevant jurisdiction. Yours faithfully, Young Lawyers Human Rights Committee  Only an approach requiring a strict, literal reading of the provisions would support this view. Such an approach is not supported by the current approach to interpretation taken at the domestic and international levels.  See for example the preambles to the UNDHR, ICCPR, CROC, ICESCR.  We do note, however, that the relevant provisions in the WRA reflect Australias obligations under ILO 111 in respect of termination of employment, even though ILO 111 does not specifically refer to discrimination on the basis of sexuality.  See Millbank J, From here to Maternity: A Review of the Research on Lesbian and Gay Families (2003) Australian Journal of Social Issues 38 (4) 541-600 at fn 46.  This section is largely drawn from the article by Millbank, J, Cutting a different cake: Trends and developments in same-sex property disputes (2005) November Law Society Journal 57-60.  NSW report at 11  Accessed at  HYPERLINK "http://www.who.int/about/en/" http://www.who.int/about/en/  Accessed at  HYPERLINK "http://www.who.int/publications/en/" http://www.who.int/publications/en/  For further discussion on this concept of attainment of the highest standard of health and the link between health and human rights see Health & Human Rights Publication Series, Issue No. 1, July 2002 World Health Organisation  Accessed at  HYPERLINK "http://www.unhchr.ch/html/menu2/6/cescr.htm" http://www.unhchr.ch/html/menu2/6/cescr.htm  Hill, N (1999) The nature of dependence and the legal recognition of same-sex relationships Alternative Law Journal [1999] AltLJ 31  See Relationship Rights Q & A at  HYPERLINK "http://www.glrl.org.au/issues/relationship_qa.htm" www.glrl.org.au/issues/relationship_qa.htm accessed 14 June 2006  Joint Standing Committee on Community Development (TAS), Report on the Amendments to the Relationships (Amendments) Bill 2003  As documented, for example, by the South Australian Ministerial Committee on Lesbian and Gay Law Reform, Lesbian and Gay Law Reform Report of the Ministerial Committee (2005). See also Burge, Michael Moving On Sydney Star Observer, Issue 784, 29/09/2005  Better Health Channel, Victorian State Government, Fact Sheet : Gay and lesbian issues discrimination (accessed at  HYPERLINK "http://www.betterhealth.vic.gov.au" www.betterhealth.vic.gov.au on 13 June 2006)  Law Institute of Victoria (22 July 2005) Submission : A submission on the Human Rights Community Discussion Paper and a Human Rights Charter for Victoria  For example, article 25 of the UNDHR, articles 2 of the ICCPR, UNHDR, ICESCR, and CROC.  The Act, ss 83, 146G, 189, 238, 315, 514B, 567A, 592A, 660LB, 660XKB, 660YKD, 728PB, 768PB, 768B, 771NU, 771NW and 823  The Act s408BA  The Act, s 500B, 500C and 500V  S.43(1A)  Where both the op-in and presumptive models exist.     _______________________________________________________________________ NSW Young Lawyers Human Rights Committee  PAGE 1 June 2006 Iyz A B e f պղudXhHd?B*CJaJph jhHd?B*CJUaJph#hB2yhHd?5B*CJ\aJphhddhHd?6B*]phhHd?6B*]phhQ[jhHd?B*ph hHd?hHd?hHd?B*phhwrhHd?0JjhHd?U h! ShHd?jhHd?UhHd?h5CJ aJ h! 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