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Standing Committee on Social Policy and Legal Affairs - 12/04/2012

BRANSON, Ms Catherine, President, Australian Human Rights Commission

SIMPSON, Ms Elizabeth, Senior Solicitor, Public Interest Advocacy Centre

[14:44]

CHAIR: I welcome the Australian Human Rights Commission and the Public Interest Advocacy Centre to the hearing. Amnesty International have given their apologies. Please note that these meetings are formal proceedings of parliament. Everything said should be factual and honest. It can be considered a serious matter to attempt to mislead the committee. Would either or both of you like to make a brief introductory statement before we begin?

Ms Simpson : I would like to begin by explaining that the Public Interest Advocacy Centre is an independent non-profit law and policy organisation that works for a fair, just and democratic society by taking strategic action, in particular running public interest litigation cases. Over the years part of our litigation practice has included a number of discrimination and vilification cases on behalf of the lesbian, gay, bisexual, transgender and intersex community, and it is really as a result of this work that PIAC has become familiar with the stigma, vilification and unlawful discrimination that same-sex couples and families led by same-sex couples experience every day. It is really from that basis that in our submission we very strongly supported both of those these bills and recommended that at least one of them should be passed in its entirety.

CHAIR: Ms Simpson, could you tell me where your funding comes from? You do not have to.

Ms Simpson : Certainly. We were established in 1982 as an initiative of the law foundation of New South Wales. Our primary funding comes from the New South Wales Public Purpose Fund on the recognition that there was I guess a need to have a community legal centre or a law and policy organisation that could run public interest cases and look at systemic issues.

CHAIR: Thank you, Ms Simpson. Ms Branson?

Ms Branson : The Australian Human Rights Commission is recognised by the United Nations as Australia's independent national human rights institution. The commission believes that formal relationship recognition should be available to same-sex couples on the same basis that it is now available to a man and a woman. We therefore support the amendments. We support each bill but we prefer the wider of the definitions, and we would support the amendments allowing the civil marriage of two people regardless of their sex, sexuality or gender identity. We also support recognition in Australia of marriage relationships entered into in other jurisdictions, as provided for by both of the bills.

CHAIR: Thank you. Were you here for the earlier—

Ms Branson : I was not; I have just arrived.

CHAIR: Okay. Putting you on the spot, Ms Simpson, could you discuss our human rights obligations in this area? The last bit of discussion with the Australian Christian Lobby in particular was about some of the human rights cases, and we did talk about this earlier this morning as well.

Ms Simpson : Certainly. I think very much our starting point is the right to freedom from discrimination and the right to equality before the law, which appear in articles 2(1) and 26 of the International Covenant on Civil and Political Rights. We would refer to a number of cases involving Australians, particularly the matters of Toonen and Young, in which the Human Rights Committee recognised that sexual orientation was encompassed in those particular articles as either being captured by the terms 'sex' or 'other status'.

We do recognise that the matter of Joslin v New Zealand was a case in which the Human Rights Committee considered whether the right to marry also was encapsulated by the notion of nondiscrimination. We accept that in that particular case the Human Rights Committee considered that the mere refusal to provide for marriage between homosexual couples did not amount to nondiscrimination in that context.

CHAIR: So it is a double negative?

Ms Simpson : Yes, it is a double negative, so the mere refusal not to recognise it was not a breach of the international covenant on nondiscrimination, but, interestingly, it did not say that you could not legislate for marriage equality. More importantly, we believe that that case needs to be put in some historical context. It was quite an early decision—a number of years ago—and since that time the contemporary meaning of state practice around marriage has evolved. For example, nine out of the 10 countries in the world that now recognise same-sex marriages have passed those laws since the Joslin decision, and state practice is a relevant and legitimate consideration. We also, with respect, believe that the human rights committee perhaps did not sufficiently consider the right to marriage in light of the overarching principles of nondiscrimination and equality before the law.

CHAIR: What year was that case? I am not familiar with it.

Ms Simpson : 1999.

Ms Branson : Could I perhaps respectfully point out that that case and others are discussed in the Australian Human Rights Commission's written submission to the committee. You will see a brief analysis there which is very much in line with that which my friend has just given, but we point out that the number of countries now has expanded, I think to 11, and there are some American states. So there is an international move towards recognising same-sex marriage which had not really started at the time of that case, when I think the Netherlands was probably the only country at that time. So a decision to find a breach would have had dramatic international ramifications then that it may not necessarily have now.

Dr STONE: We took evidence, and discussed for a time, this morning on the issue of removing any references to discrimination in relation to same-sex couples being able to marry under the definition of a relationship for life to the exclusion of all others. Would you support then the idea that if we open that door to same-sex couples it follows that we should also than not discriminate against those who wish to have polygamy or polyandry recognised, or indeed to have the marriage of siblings recognised?

Ms Branson : The Australian Human Rights Commission would not recognise that.

Dr STONE: How is that different? If you are saying that same-sex couples not being allowed to marry at the current time is discriminatory, why do those other relationships, especially polygamy, not demand equal rights before the law?

Ms Branson : I am aware of no international human right that authorises polygamy. What international human rights law does recognise is equality on the grounds of status; status is broadly recognised to include the status of being either gay or lesbian, transgender, intergender and things of those kinds—they are all status. A desire to have more than one partner is not a status and does not fit within those human rights principles, nor am I aware—this might be a fault of my own—of any religion that requires you to have more than one partner, as opposed to allowing you to have one.

Dr STONE: That is not the argument. A logical extension of recognising the marriage rights of same-sex couples is the question why can't the marriage right of people of, say, Middle Eastern cultures who arrive in Australia with more than one wife, or who wish to take more than one wife in Australia, or indeed of Nepalese or Tibetan culture who wish to practice polyandry, taking more than one husband, be recognised? Why would that not be a logical extension? Do you have a problem with it being a logical extension of the recognition of same-sex couples relationships as 'marriage'—the single definition of marriage nationally?

Ms Branson : Dr Stone, I think what I am saying is that if I do not accept that it is a logical extension and, if it is, I do not see that it finds any support in international human rights principles, which are based on equality on the basis of status.

Dr STONE: I guess it might be interesting for you to look back at our evidence this morning and the discussion that took place there. Certainly, in my own constituency, I have constituents arrived from the Middle-East who see if very much as a logical extension, when talking to me about it.

Mr BANDT: I would like to follow up two issues. Firstly, I think that we understand the principle for more legal arguments against discrimination and we have heard a lot and got some very good submissions about the state of domestic and international law. But I am wondering if you could both expand on, or go a bit behind, it and talk a bit about the effect of discrimination. In particular, could you talk about the people who are discriminated against and whether you have any experience of the group that we are talking about here—namely, same-sex-attracted people and why you think removing discrimination, including in this area, is important, in a practical sense?

Ms Branson : The Australian Human Rights Commission, as you may know, is currently focusing across all of its work on issues of violence, harassment and bullying. We are very alarmed at the levels of violence and harassment and bullying that we hear about against same-sex-attracted people and perhaps even more concerningly against intersex people and transgendered people. We conducted some round tables to support the federal government's move to harmonise discrimination laws. We sought to bring together significant numbers of people of different sexual orientations and gender identities. In talking with them, the stories of violence and harassment experienced by them—in some cases, almost on a daily basis—were horrific and they are reported in our report of that consultation, as you may know.

We do hold a very genuine concern that anything that publicly legitimises discrimination of any kind does play to a feeling, in some sections of our community, that these relationships are second class and therefore the people can be treated with less respect. This may be fuelling a tendency to violence. Although we greatly applaud the moves that were made to have equality between same-sex and heterosexual couples for financial reasons, we think the maintenance of any official distinction of this kind may well be feeding, ultimately, to the violence that they experience.

Ms Simpson : On a slightly different note, we recently did some quite close collaboration with the Australian Marriage Equality group, looking at the Certificate of No Impediment policy before the recent amendments to it. As part of that work we spoke to a number of couples about their experiences in trying to marry overseas and not being able to access a Certificate of No Impediment. They spoke of the kinds of personal impacts that had. They were simple things like the fact that they had arranged everyone in their entire family, for example, to go to Spain to get married only to be told at the last minute that they could not go. They were not able to pursue that route and would have to wait for some kind of change, which has now taken place. It certainly caused distress in their extended family—especially to children. I would echo the comments about being made to feel like second-class citizens because they were not able to make the commitment they were wanting to make.

CHAIR: Going on from that, what sort of general discrimination do same-sex couples suffer?

Ms Branson : I was speaking to Mr Bandt about the high levels of violence experienced broadly—

CHAIR: Yes, beyond that.

Ms Branson : but I think any recognition of lack of equality for something as fundamental as relationship recognition might well be feeding to the belief of some members of our community who might have a tendency to be violent to people they look down on. These are people whose relationships—and therefore themselves as individuals—do not attract the same respect in our society as heterosexual people. It is a subtle tendency but I fear it is a genuine one.

CHAIR: Could you talk about it in terms of employment law or education experience or how discrimination has occurred outside—leaving aside violence?

Ms Branson : We certainly do receive regularly, at the commission, complaints of discrimination on the grounds ofsexual orientation. Whether they are directly related to relationship recognition or not I would not be able to say, but I am inclined to doubt that they do.

Mr BANDT: I want to follow up on some more technical drafting points. I do not know if you have had the opportunity to raid the submissions from the Australians for Marriage Equality, but they have a preferred set of objectives to the act and seek to amend both bills to change the objects of the act. Secondly, on the definition point, one of the submissions—I think it was from the Law Council of Australia—suggested that rather than listing any attributes they would rather see a definition that just says that marriage is between two people, so you are not potentially leaving anything out. Do you have a view on either of those two points.

Ms Branson : On the second, I think in principle it seems fine, although I am old enough to remember when courts were able to interpret the reference to a person as not including a woman, so one would have to be nervous I guess about whether people will call, in aid, past history to distort parliamentary intention in an environment like that.

CHAIR: That is all right. If you were here earlier, you would have had corporations almost roped into it, as well!

Ms Branson : So far as the preamble is concerned, I do not think that has a particular human rights significance, but let me say that the view of the Australian Human Rights Commission is that there should be equality of relationship recognition. We do not put forward as a human rights issue what that recognition should be.

Dr STONE: Given that a number of states have now made it possible for civil unions or registrations of relationships, do you see that as in any way assisting with the status of the relationships of same-sex couples, including their legitimisation and being able to publicly declare it, to formally have it registered, and so on? Do you see that as helpful or is that just again reinforcing that there are two types of institutions and one is for heterosexual couples, a single man and a single woman—I stress that again and I argue to you that there are other types of marriage very well understood globally that involve more than one man and one woman. Can you comment about the usefulness or otherwise of having state regimes that are different to the federal regime, which is between one man and one woman to the exclusion of all others, long-term and so on.

Ms Branson : I think I agree with both of the things you say. I think state recognition is an improvement on nothing, but on the other hand it is not of itself the provision of equality and it has the additional disadvantage of different regimes in different places, and the various state regimes are far from identical. So I think it is a step forward. In my business you take every step forward you can and hold on to it and look for the next step forward. You do not allow the search for the perfect to defeat achieving the better. But I think the better would be universal recognition of complete equality for all relationships, whether it is civil union or marriage.

Dr STONE: Including more than one man and woman perhaps.

Ms Branson : No, as I said before, not including more than one man and one woman.

Dr STONE: Now you are only into one man and one woman—okay. It is a fairly well-established principle that equality does not necessarily mean identical outcome.

Ms Branson : Yes.

CHAIR: I have a question for Ms Simpson. We have heard some evidence referred to by the Australian Christian Lobby—I cannot remember the name of the report but it was something like, 'the well-being of children' and I think it was done last year by a University of New South Wales law professor—saying that—

Ms Branson : Perhaps Professor Parkinson.

CHAIR: It was Professor Parkinson. I am not sure if you are familiar with that report, but it talked about the well-being of children, obviously, and made some suggestions about marriage, particularly heterosexual marriage, being the best possible environment for looking after the rights of children. I was wondering if you have had any experience with your clients. Obviously not many same-sex couples accidentally have children, they do tend to make a pretty careful, planned decision, but I was wondering if you could make a comment on their parenting skills. I assume that they are the same as every other couple in that they have failings and the like.

Ms Simpson : In our submission we referred to a number of studies. There have been a number of studies done—for example, in America—that have indicated that the wellbeing of children in same-sex led families is actually extremely high in terms of social adjustment, academic performance and so on. On a personal level, we were involved in the case of OV and OW v Wesley Mission, which is the leading case in New South Wales about discrimination relating to a gay couple who wanted to foster children. It was a very long case. The interesting thing about it was that those particular parents adopted down the track.

CHAIR: Adopted and not fostered?

Ms Simpson : The ended up fostering through a different organisation and then adopted those children. In relation to the adoption process, the judge commended them—and I cannot remember the details about the decision or the date—on their parenting skills and their commitment to being parents.

CHAIR: That is one case.

Ms Simpson : That is one case. I can comment on that particular case because that is one that we were particularly involved in. Beyond that, I would refer to the fact that there other quite detailed studies, such as the ones done in America, that strongly suggest that same-sex couples raising children—often because they make a very determined decision to become parents—spend more time with their children and so on. The studies suggest that they are perhaps even better sometimes.

CHAIR: Ms Branson, would you like to add to that at all?

Ms Branson : Not really. I see it as a slightly separate issue. Marriage is not necessarily about the raising of children. As it happens, I married at the age of 60. I was not planning a family. But I regard my marriage as nonetheless legitimate.

CHAIR: I should not ask, but did you leave it open to—

Ms Branson : I think that I would prefer to leave that off the record, if I might!

CHAIR: We had some interesting evidence first thing this morning about that.

Ms Branson : Where there are adoption procedures to be undertaken, it is very important that the best interests of the child be a primary consideration. But it is important that prejudicial views are not brought to the judging of that. We know that there are, regrettably, heterosexual couples who parent very badly. Many parents who would like to be in a couple, whether heterosexual or otherwise, are not able to be. As Ms Simpson has said, there are same-sex couples parenting extremely well. We know that very often foster placements are difficult and same-sex couples that provide foster placements are often regarded as having done so exceptionally well. It is a slightly separate issue to relationship recognition, but it is an important issue. The best interests of the child should prevail.

CHAIR: My wife has been working in child protection for 20 years. I have never heard her talking about someone's sexuality as a factor in whether or not the state steps in to take their children away.

Mr BANDT: An issue was raised by the celebrants when they gave evidence to us. It concerns the interaction between these bills, were one of them to pass, and both federal and state anti-discrimination legislation. These bills both contain exemptions for religious organisations, making it clear that religious organisations are not obliged to marry any particular couple. Questions were raised from the point of view of the religious organisations, such as what about the use of their premises and so on and whether they would be entitled to refuse that. It was suggested to us in the legal session that section 116 of the Constitution probably provides sufficient protection. But as far as civil celebrants go, what position should they be in with regards to state and federal anti-discrimination laws?

Ms Branson : Freedom of religion and belief is a fundamental human right, as is the right to equality. If they are perceived to come into conflict, then a balancing exercise must be undertaken. The provision not to require churches to marry same-sex couples where contrary to the tenets of their religion is an important provision. If it would be contrary to the conscience of a celebrant to marry such a couple, while it has not been to the commission, my feeling would be that we would support them also being able, on the basis of conscience, to not put themselves forward to marry that couple.

CHAIR: I was going to ask about the cleaners and the like at a religious establishment. We might leave that for another day. Couldn't the inequality currently experienced by same-sex couples be addressed through legislation that removes any remaining legal discriminations rather than through changing the definition of marriage?

Ms Branson : It is possible that it might, but you would at some risk of judicial interpretation. It would be preferable for the judges to be provided with some very clear guidance here about what the parliament intended to be the reach of the Marriage Act or any other legislation that they chose to cover relationship recognition.

CHAIR: I notice that reference was made to the many pieces of legislation changed by the Rudd government in the 42nd parliament.

Dr STONE: And the Howard government.

CHAIR: Previous parliaments, shall we say. Could you talk about pre that and post that and how that has impacted on the same-sex attracted community in particular.

Ms Branson : I am proud to say that that package of legislation followed upon the recommendation of the Australian Human Rights Commission, which had done a study of the financial disadvantage experienced by same-sex couples and found that it was substantial and that it was causing distress to many. As it happened, it also caused financial advantage to some.

CHAIR: Yes, some of the same-sex couples who were getting separate pensions pointed that out to me.

Ms Branson : We urged the grandfathering of the provision of some payments to couples who had become accustomed to payments. We wished to be sensitive to the fact that it could require some couples who wished to maintain privacy as to the nature of their relationship with the person with whom they lived to effectively out themselves to a limited audience, at least, in order to bring themselves into compliance with the law. We regretted that, and we would have preferred grandfathering. Nonetheless, the outcome of that raft of legislative change has been extremely positive.

CHAIR: How so? Has it just changed things around the water cooler or at barbecues? How has it changed things?

Ms Branson : It has changed the financial circumstances of significant numbers of people, which was its intention. Protections in place for the surviving spouse of a heterosexual couple can now be enjoyed by the surviving partner of a same-sex relationship. There are superannuation benefits; there are a whole raft of benefits. The principle benefit has probably been that which was intended, which is financial parity between the two classes of relationship. But it is also true that it makes people feel that their relationship is more respected.

CHAIR: That is not quite as empirical, but you have a feeling that that vibe is out there?

Ms Branson : Yes, that is what people tell us.

CHAIR: This goes back to our first question, which was about the way that society respects a relationship.

Ms Branson : We are able to say that among the many people we speak to there is a deep sense of personal hurt about not being able to have their relationship recognised if they want to have it recognised in the way that those in the heterosexual community can. They feel disrespected. There are many heterosexual people who do want marriage relationships and no doubt there are very many people who are same-sex attracted who do not want official recognition of their relationship. But the fact they cannot have it whether or not they want it makes them feel that their relationship is not regarded in the same way. Those who were not entitled to the financial benefits that marriage or the recognition of de facto relationships brought heterosexual couples felt that they were second class. The level of personal distress felt by people should not be underestimated.

CHAIR: Ms Simpson, do you have anything to add?

Ms Simpson : No. The commission is better placed to answer that.

CHAIR: Thank you very much for taking the time to appear before us this afternoon.