ࡱ> WUX` &8bjbjss .J&0*6666R$ {"h!!!!!!!$#hK&* "___ "5"_F!_!Z!!v `]6Fr!!K"0{"z!,u&u&!u&!TvTbD " " {"____ D $ T6 29 June 2006 Same-Sex Inquiry Human Rights Unit Human Rights and Equal Opportunity Commission GPO Box 5218 Sydney NSW 2001 Via email:  HYPERLINK "mailto:samesex@humanrights.gov.au" samesex@humanrights.gov.au Dear Human Rights & Equal Opportunity Commissioner, Submission to National Inquiry into Discrimination against People in Same-Sex Relationships I have sought to find a way to make a meaningful contribution, and pondered the value of making a submission, given the Federal Governments sustained opposition to equality for same sex couples and the recent disallowance of the ACT civil union legislation. The Prime Minister (Mr Howard) recently described people who lobby on issues of same-sex equality as a fundamentalist minority. I would like to tell you of my experience of discrimination, which arises from the current state of affairs in both Commonwealth and some Victorian laws, and affects fundamental aspects of my and my partners social, family, financial, property, and legal affairs. Definition of Spouse The definition of spouse in federal legislation excludes people in same sex relationships. As a woman in a relationship with another woman during my tertiary studies, I qualified for social security payments as if I was a single person, because the definition of spouse rendered my relationship invisible. However, the disadvantages I face as a woman in a same sex relationship far outweighs any short term windfall that may have arisen because my partners income was not assessable toward my benefit entitlement during my studies. My long term (6 year) relationship is rendered invisible in relation to taxation spouse rebate entitlements, Medicare and PBS couples safety net discounts and tax deductions for superannuation payments into spouses super funds. For example, my partner cannot claim the Dependent Spouse tax offset, even if we qualified against all other necessary criteria. State and Federal implications of not recognising same-sex partnerships Marriage or some other form of relationship recognition is the foundation of financial security and equality in financial matters. As a result, property, inheritance, financial and welfare rights are closely tied to if not determined by - ones relationship status. The federal government amended the Marriage Act to preclude same-sex marriages just before the last federal election. This has had a discriminatory effect in major financial aspects of our lives Obviously, we cannot marry because both my partner and I are female. As a result, I lose access to property and inheritance entitlements the same entitlements that my heterosexual peers can take for granted. Given the detriment faced by couples whose relationships are not recognised by law, I consider the federal government has allowed discrimination against same sex couples in the ACT, by disallowing civil union legislation. In other federal examples, discrimination is enshrined in taxation and social security, including Medicare Safety Nets, the pharmaceutical benefits scheme (PBS), public sector superannuation, social security, veterans benefits and defence force law, due to the definition of spouse in those schemes. In superannuation law, ComSuper pensions, contributions-splitting, reversionary pensions and anti-detriment provisions discriminate against same-sex couples. In defence force law, discrimination exists in spousal counselling, death benefits, compensation and pensions. In state based superannuation, I understand that fund trustees have discretion to refuse to pay out death or other benefits to a same-sex partner, even if that person is the nominated beneficiary. I am also concerned the Commonwealth would seek to intervene if a state or territory proposed to enact remedial legislative amendment designed to reduce discrimination against same sex couples. For example, this may occur with any amendment of Victorian law that removed the present exclusion of lesbian couples from accessing reproductive technology assistance as a matter of course. It would almost certainly occur if amendment of the current Victorian adoption law (which presently wont allow same sex couples to adopt) was proposed in relation to international adoptions, as the Commonwealth Government has Guardianship of non-citizen children brought into Australia for adoption purposes. When it comes to family, child support and intestacy law, my partner and I may as well be single, even though we have lived together for 6 years, sharing our resources to do so. If I were to die intestate, my partners central role in my life, and mine in hers, let alone any children we raise together, may as well be nought. If we have a child, both of us cannot register as parents on the birth certificate in Victoia. Notwithstanding the option of parenting orders in the Family Court, it is a criteria for a special Family report and a basis for child representation in any dispute if one of the parents sexual orientation is not heterosexual! As matters stand, if I am not the birth parent of any child we choose to have and raise as part of our family unit, the non-biological parent has no certain authority to consent to medical treatment, make educational decisions and the like for our child. If our relationship ends, the Child Support Agency is currently not able to compel the non-biological parent to provide ongoing maintenance or support for a child of the relationship. Each of us and any of our children would face almost inevitable financial hardship, and could be forced into costly and complicated legal proceedings. This untenable uncertainty is not imposed on heterosexual couples. The only option we currently have if we are to include children in our family unit is to adopt as a single parents (plainly false), foster children and be subject to potentially judgmental and intrusive supervision from the same Victorian department that precludes same-sex couples from adopting children, or access interstate reproductive assistance, and then retain lawyers to prepare private (and possibly unenforceable) legal agreements in the search for basic security for our relationship, akin to that which the heterosexual community may take for granted. In reality, same-sex partnerships are legitimate financial, familial and legal units. In each of the above examples, the discriminatory state of legal affairs is a result of entrenched stigmatisation of same-sex families and an irrational fear of homosexuality. This can lead to profound and unjustifiable financial and personal burdens, and leaves many people in the homosexual community with a sense of disenfranchisement and alienation, even while we actively participate in, and contribute to Australian society in many ways. Rationale for reform It is a core value of civil society that people are treated equally at law. There is nothing in this principle that can be attributed to a fundamentalist minority view. In practical terms the rule of law means that my relationship with another woman would be recognised, and treated equally in law- meaning, the same way as heterosexual families are treated in law. To be perfectly clear, this means acquiring all the rights, responsibilities and liabilities that accompany relationship recognition in civil society. Selective legislative recognition of my same-sex relationship status, or some form of positive discrimination (although such remedial legislation may be justifiable) will not do. A starting point would be to ensure the definition of spouse is corrected. It is demoralising (and irrational) to be isolated and marginalised for participating in a loving and productive relationship, just because my relationship happens to be with a person of the same sex. The stigma attached to same-sex relationships is unjustified; especially since people who know us would assure you that we are anything but marginal, abnormal or unlawful. Our lives are very ordinary - we rent a small home and aspire to home ownership; we like to travel when we can, we are hard working, pay taxes, abide by the law and actively contribute to our community, social and professional groups. We also work in professions where developing a civil society is a core goal. As intelligent, educated women, we are mystified, about what part of our relationship is so threatening that State and federal governments hold us at arms length and seek to render us invisible (if not actively deter our relationship) when it comes to equality at law. Each time I encounter legislated discrimination I experience personal disappointment. It is embarrassing, to realise, time and again, that the system just doesnt treat us equally. It seems that every time my partner and I approach a normal life decision - buying a home, having children, making a will, managing our tax and superannuation - we are stonewalled by legislation which defines spouse in order to exclude same sex couples. When we explain this to our accountants, our lawyers or our peers (as sometimes we must), they seem confused, or embarrassed, and sometimes frustrated by the system. It is a great shame that the same sex couples excluded by certain laws are often the same people who are most actively contributing to the community. The most painful instance of this at present is the exclusion of same sex couples from the amended Marriage Act, and the Commonwealth Governments decision to disallow civil union legislation in the Australian Capital Territory. I cannot emphasise how painful it is to know that it is futile for my partner and I to publicly register, affirm or formally celebrate our relationship, as there is no corresponding right to claim or rely upon the legal certainties (both rights and responsibilities) coming from relationship recognition by the State. Contravention of obligations assumed under International convention I submit that systematic legislative discrimination against same sex couples by the federal government is both a direct and indirect contravention of Article 26 of the International Covenant on Civil and Political Rights: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as birth or other status. If this situation does not change soon, children raised within our relationship will suffer the legislated disadvantage that flows from same-sex partnerships. In turn, this contravenes Article 2, section 1 , and Article 2, section 2 of the Convention on the Rights of the Child of which article 2, section 1 says: 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 child's or his or her parent's or legal guardian's sex, birth or other status. Necessary legislative reform Discrimination in Commonwealth and State law can and should - be removed. There are several essential steps toward achieving this by: establishing comprehensive definitions of spouse , and alternatives of interdependent relationship, to include same-sex couples extending spousal rights to same sex couples; establishing a national civil union or relationship registration scheme, to allow couples to register their relationship to receive equal entitlements to heterosexual and married couples; or altering the Marriage Act 1961 (Cth), to recognise marriages between two men or between two women, and allowing overseas marriages to be recognised under Commonwealth law. revoking the disallowance of the ACT civil union legislation inviting Victoria to amend- without Cth interference - any and all legislation that continues to preclude same-sex couples from enjoying the same rights and responsibilities as other couples (eg: adoption, financial matters, superannuation and intestacy) I eagerly await the final report, and look forward to the removal of all areas of discrimination in Victorian and Commonwealth law. Yours sincerely, Name withheld by request. } t > ?     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