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Tuesday, 23 September 2008
Page: 8299


Ms PARKE (7:40 PM) —I speak in support of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. This bill is a positive and overdue step towards ensuring equality in Australian society. It eliminates discrimination against same-sex couples and the children of same-sex relationships in a wide range of Commonwealth laws, including taxation, social security, health, aged care, veterans entitlements, workers compensation, immigration and other areas. I welcome the fact that this bill follows so quickly upon the heels of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which passed the House of Representatives on 4 June 2008 and which is currently the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs.

I would like to congratulate the Attorney-General, his department and his staff for the diligence and attention to detail with which they have approached this highly complex and sensitive area. I would also like to pay tribute to the careful work of the Human Rights and Equal Opportunity Commission, HREOC—now called the Australian Human Rights Commission—whose report in 2007 entitled Same-sex: same entitlements provided much of the evidence and analysis underlying the bills presently before the House. Upon coming to office the Attorney-General commissioned a whole-of-government audit of Commonwealth legislation, which not only confirmed HREOC’s findings in relation to 58 federal laws but identified further discrimination in a range of other areas, such as administrative and evidence laws.

I would like to refer to a couple of submissions made to the HREOC inquiry that have also been highlighted by other members just now in their excellent contributions to this debate. In one submission a gay doctor described his situation as being that of ‘a first-class taxpayer but a second-class citizen.’ In another submission, a same-sex couple from Adelaide said:

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.

HREOC found that at least 20,000 couples in Australia experienced systematic discrimination on a daily basis—whether it is not being guaranteed the right to take carers leave to look after a sick partner, being denied a wide range of tax concessions available to opposite-sex couples, being denied access to superannuation and workers compensation benefits available to dependants of opposite-sex partners or paying more than opposite-sex couples to enter an aged-care facility.

It is incorrect to regard this legislation—as some have—as undermining the right or entitlements of anyone else in Australia, as if the wider availability of equitable treatment before the law will somehow dilute the rights that many already have. This legislation in no way lessons or reduces the rights or entitlements enjoyed by many in our society, nor does it confer any special rights. All it does is put same-sex couples on an equal footing to opposite-sex couples.

It is fitting that these bills are presented to the parliament in the year of the 60th anniversary of the Universal Declaration of Human Rights, which provides for equality of all people before the law and entitlement to protection from discrimination. Australia played a key role in the drafting of the universal declaration, and an Australian, Doc Evatt, was the President of the General Assembly when the declaration was adopted by the General Assembly in December 1948. We can be justifiably proud of Australia’s contribution to the development of the international human rights system, but there is no point signing up to international standards and then ignoring them at home.

HREOC found that the discrimination that currently exists in Commonwealth laws is a serious and fundamental breach of Australia’s international legal obligations under human rights law, in particular the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Article 26 of the International Covenant on Civil and Political Rights, the ICCPR, states:

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 …

In 1999, an Australian by the name of Edward Young took a case to the UN Human Rights Committee alleging a violation by Australia of article 26 because of discrimination in Commonwealth laws that denied him the right to receive a veterans pension because he was gay. Mr Young had been in a 38-year relationship with his partner, who was a war veteran, for whom he had cared in the last years of his life. When his partner died at the age of 73, Mr Young applied for a veterans pension under the Veterans’ Entitlements Act 1986. His pension application was rejected because a same-sex partner does not qualify as a veteran’s dependant, even though an opposite-sex de facto partner does qualify.

The Human Rights Committee found no reasonable or objective reasons for denying Mr Young the pension. It concluded that the distinction between the treatment of unmarried opposite-sex couples and same-sex couples under the Veterans’ Entitlements Act was discrimination in breach of article 26 of the ICCPR. Some seven months after the response deadline, the Howard government replied that it did not accept the Human Rights Committee’s finding that Australia had violated article 26 of the ICCPR, and it rejected the committee’s conclusion that Mr Young was entitled to an effective remedy. The decision was buried. The UN committee’s decision was not publicised by media release in Australia nor was a copy or summary of the decision available on any government department’s website. With this bill, the Rudd Labor government is saying to Edward Young, and to all those who find themselves in similar situations, that this government respects the undertakings it has made in international law and will ensure that such injustices are not perpetuated.

Australia does not have a bill or charter of rights—unlike Canada, New Zealand, the United Kingdom, the United States and other nations within the developed world. Perhaps, because of this, the meaning and significance of inequality and what it means to deny it is not as scrutinised here as it should be. As I have stated previously in this place, I look forward to the national consultation on a charter of rights that this government intends to undertake.

As HREOC found, it is not just Australia’s same-sex couples who suffer discrimination in breach of international human rights standards; it is their children too. Approximately 20 per cent of lesbian couples and five per cent of gay couples in Australia are raising children. The lives of children are inextricably bound up with the lives of their parents. Therefore, the exclusion of same-sex parents from financial benefits and entitlements will inevitably have an impact on their children. Article 2(2) of the Convention on the Rights of the Child provides that:

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 child’s parents, legal guardians, or family members.

The UN Committee on the Rights of the Child has stated that discrimination on the basis of sexual orientation is discrimination for the purpose of article 2, and that direct and indirect discrimination against children, their parents or legal guardians will breach article 2 of the convention. In evidence to HREOC’s inquiry, Mr Philip Lynch, Director of the Human Rights Resource Law Centre, submitted that discrimination against same-sex parents or guardians of a child which has an adverse impact on the child—for example, parents unable to access a particular financial entitlement which would have been of benefit to the parents and, by extension, the child—directly engages and violates article 2(2) of the Convention on the Rights of the Child.

The implications for same-sex couples and their children of our discriminatory laws have made me think about the types of things I have seen and heard in my career as a lawyer with the United Nations, as a legal academic, and as someone who has practised law in Australia. I have seen what happens when equality is denied, suppressed and ignored: women denied education because they are women; refugees stranded for years in the inhumane conditions of some refugee camps simply because they are seen as not belonging; women and children trafficked as sexual property; men, women and children with AIDS denied housing, employment, education and life-saving medications; and Indigenous Australians living an average of 17 years less than non-Indigenous Australians.

Some might ask what someone being denied a veterans pension or a family benefit because they are gay or lesbian has to do with women in developing countries not being educated, refugees suffering in camps, AIDS discrimination, human trafficking or Aboriginal disadvantage. Actually, it has everything to do with these because, at their core, all of these examples share a common trait: they happen because inequality is allowed to occur and is allowed to persist, and, when not taken seriously, such inequality becomes a way of being that, once normalised, soon permits the previously unimaginable. Fundamental inequality—and nothing is more fundamental than the equal enjoyment of basic human rights—hurts all of us, even those who believe we have everything. To the extent that we allow one person or group of people to be disenfranchised socially or legally, to be treated as inferior, to be silenced through prejudice and ignorance, we prop up a system of inequality that makes it very difficult for any of us, in any context, to participate fully as citizens, and it denies our sense of common humanity.

During its inquiry, HREOC heard from a woman who told of a lesbian friend who had been denied the right to farewell her dying partner. She said:

One of our lesbian friends lay ill and dying in her hospital bed.  When it came time for her to die the hospital staff prevented her partner from entering her hospital room and sitting with her at the end of her life because she was not the ‘spouse’.

Our friend died, alone.  Her partner sat outside in the corridor prevented from being with her.  She continues to suffer great distress that her life-time partner died without her comfort and without knowing she was there with her.

Another contributor to the HREOC inquiry wrote:

There is evidence that hate crimes against gay men and lesbians result from the systematic discrimination entrenched in the law.  When gays and lesbians are determined to be unequal at law, then homophobes assume the privilege of vigilante justice by bashing and attacking gays and their organizations.

Systematic discrimination was found to be evident in the 68 federal laws which this bill seeks to amend, as well as in other laws which will be amended by separate legislation. Equality, if it is to counter such discrimination, must also be systematic, hence the very comprehensive package of legislation put forward by the government. While acknowledging that the fight against discrimination cannot be waged solely through state and federal laws for the very reason that discrimination is hardest to dislodge from our hearts and minds, this nevertheless, to the extent of this bill’s application, represents a great step forward for ordinary Australians in same-sex relationships and their children. And it is a great step forward for all Australians because a society in which equality is the pre-eminent right is, at its base, a good and fair society. With this bill the Rudd Labor government is making the necessary and overdue changes to remove inequitable discrimination against same-sex couples and their children. In a country that prides itself on egalitarianism and on a fair go, this is legislation that is very much in the spirit of Australia. We are all richer for it.