Date: 
Thursday 1 March 2007

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It's hard to argue against equality

Author: Graeme Innes AM, Human Rights Commissioner

Publication: On Line Opinion (Thurs 1 March 2007)


Federal laws prohibit discrimination against women, older people, people with disability and people of different races. However, there are 60-plus pieces of federal legislation which specifically deny financial and work-related benefits to same-sex couples.

In April last year the Human Rights and Equal Opportunity Commission (HREOC) launched a national inquiry on equal rights for gay and lesbian couples trying to access the financial entitlements and work benefits that heterosexual couples take for granted.

As an example, let's start with parental leave.

We know that minimum workplace entitlements for Australian employees include parental leave. But parental leave is only guaranteed to a male employee who is the spouse of a woman giving birth. There is no guarantee that a lesbian co-mother can take leave to help her partner through the birth of her child, and those difficult first few weeks of dealing with a new-born baby! She has to rely on the good-will and open-mindedness of her employer.

There is also discrimination in the federal Government's ComCare worker's compensation scheme. Under the ComCare scheme, if a person dies on the job, his or her “spouse” may be entitled to: a lump sum payment; fortnightly payments for each dependent child; and help with funeral expenses. A same-sex partner, unlike a heterosexual de facto partner, does not qualify as a “spouse” under the definitions in the legislation, and so may be left with nothing.

The Medicare Safety Net is yet another example of discrimination. Designed to provide additional subsidies to people with high medical costs, the Safety Net support kicks in when an individual, couple or family, spends above a threshold of medical expenses. In opposite-sex families, the out-of-pocket medical expenses of family members can be added together to reach the Safety Net threshold of $1039. However, same-sex couples have to spend twice as much on medical costs before government subsidies kick in. This is because the Medicare legislation does not recognise them as a “family”, thereby not allowing them to accumulate expenses to reach the threshold.

These are just a few examples of the many discriminatory laws identified by our Inquiry.

Discrimination also exists in federal tax laws, superannuation laws, social security laws, veteran's entitlements laws, aged care laws, immigration laws and family law, among others. So - what is the human cost of this?

HREOC spent more than three months travelling around Australia holding public hearings and community forums. We heard, first-hand, about the impact of these discriminatory laws on gay and lesbian couples. These consultations and some of the 685 written submissions, clearly describe the financial and emotional strain on gay and lesbian couples - couples just trying to enjoy their lives like everybody else.

One gay man told us "the inequalities embedded in current legislation are obvious and are inexcusable. ‘Understanding, tolerance and inclusion’ are said to be values of the Australian community. Current legislation tells another story."

In Adelaide we heard from two lesbians who'd just become parents of a five-week-old child. Despite having been together nine years, regularly undertaking voluntary work, donating to charities and providing regular respite care to a foster child, they were not allowed to adopt children or access assisted reproductive technology. They described their situation this way: "We are an average suburban family. We are working hard and contributing to our community. We don't want special treatment - just what others can expect from their legal and social community. Our rights are denied simply because of who we love. We just want equality."

It is pretty hard to argue with a person who just wants to be treated as an equal by the law. After all, this is one of the most fundamental of all human rights principles.

Gay and lesbian members of our community do not have the same access to basic financial and workplace entitlements as straight members of the community. They are denied basic financial benefits like tax concessions, health care subsidies, workers compensation, parental leave and superannuation benefits.

HREOC is now developing recommendations on the best way to bring equality to gay and lesbian people in these areas.

We expect that our report will be tabled by the federal Attorney-General in the first half of this year. In the meantime, I encourage people to have a look at our website and read or listen to some of the stories that we heard during our hearings. They are compelling. After all, it’s hard to argue against equality.

This text forms the basis of a Keynote Speech given by federal Human Rights Commissioner, Graeme Innes AM, at the Equal Opportunity Commission of Victoria Human Rights Conference on February 27, 2007.