Damien Carrick: The Federal Government is again being called to answer in the United Nations; this time over an alleged case of discrimination against a man whose gay partner of 38 years, a war veteran, died just over two years ago.
The case comes as gay and lesbian leaders say Australia is falling behind other industrialised countries in eliminating discrimination on the grounds of sexual orientation, particularly at a Federal level. They also point to a recent decision by the Victorian Liberal and National parties not to support a comprehensive State Government Bill to amend 44 Acts which discriminate against lesbians and gays.
In stark contrast, in the Netherlands, same sex marriage became legal on the 1st April.
In this special program, Antony Balmain looks at how the law is dealing with same sex relationships, both in Australia and internationally.
Edward Young: The use of the Mardi Gras as a directive to show people that there are these inequalities that exist in our society, and we wish them to be resolved, I think it’s very important, and I think that the more community and social problems are brought to the general public on national television, the better.
Antony Balmain: Edward Young, commenting on a gay marriage or commitment ceremony which started the Mardi Gras coverage seen on Channel Ten nationally last year.
Mr Young is taking the Howard Government and the Department of Veteran’s Affairs to the United Nations because he claims he’s being discriminated against over entitlements due to the partner of a deceased war veteran.
Edward Young: He was 17 years old, he put his age up, and he joined the Army. And he was sent to Borneo during the Second World War. He was very lucky because he managed to survive Borneo; as we know, a lot of our Australian defence forces did not survive that operation.
Antony Balmain: Mr Young says his partner, Larry Cain, never spoke about the trauma he suffered during the war. But Larry went on to develop a successful career in London as a photographer. It was there, at the start of the ‘60s, where they met.
Edward Young: We instantly fell in love with each other, and we stayed together for 38 years, until the day he died. We came back to live in Australia, and we lived as we’d always lived. We lived quietly, but it became very difficult. When Larry became ill because he became, after his surgery, very, very frail, and I looked after him constantly, on a 24-hour a day basis, but he was a wonderful, kind, gentle man, and he never, never complained. Although he went through a lot, and you can imagine what open heart surgery is like. He never complained. We were absolutely devoted to each other, committed to each other because we loved each other. Everything that I did for him during the last five years of his life was because of love, and I would still be doing it if he was still alive.
Antony Balmain: Not long after Larry died, Mr Young tried to access a pension, which dependants of a veteran are usually entitled to under the Veteran’s Entitlement Act. But the Repatriation Commission rejected the application eleven days later on the grounds that the Act defines a dependant as a spouse or a person of the opposite sex.
Mr Young sought a review of the decision, which was rejected seven months later. Then Mr Young requested the Human Rights and Equal Opportunity Commission look at whether the Act was in breach of Australia’s international obligations.
The Commission declined to examine the case.
Edward Young: I started this because of the injustice of being discriminated against because of my sex. What I’m after is justice; what I’m after is for the Australian Government to acknowledge self same sex partnerships exist and are still existing between war veterans and current serving members of the Defence Force, I want the Government to change the legislation to include same sex partners, because that is justice, that is what the Australian Government is, is in breach of its obligation under the international covenant on civil and political rights, and that’s Article 26 of the covenant, which says basically, you have to treat people equally before the law. You can’t put into operation a law which is a directive, that says a partner, be it a de facto, or spouse, or widow of a war veteran, or current serving member of the Defence Forces is eligible for all benefits pertaining to that status and then turn around and say that a person is not eligible because of their sex.
Antony Balmain: Edward Young is following in the footsteps of Tasmanian gay activists Nick Toonen and Rodney
Croome, who some years ago went to the United Nations and successfully overturned Tasmania’s criminalisation of gay sex. Any day now, the Federal Government and the Department of Veterans Affairs are due to respond formally to the submission by Edward Young to the United Nations Human Rights Committee in Geneva.
It will take anywhere up to two years for a decision to be reached by the world’s foremost international human rights law exerts.
We invited the Veterans Affairs Minister, Bruce Scott, for an interview, but his spokesman said he would not be available because it was a whole of government policy issue that should be addressed by the Minister for Employment and Workplace Relations, Tony Abbott.
Mr Abbott in turn referred The Law Report to the Attorney-General’s office. Daryl Williams was also unavailable to speak on the program on this issue, or wider issues of same sex discrimination.
It’s in the countries of the European Union where the rights of same sex couples have been most strongly recognised at a national level. In a landmark case for our region, those legal rights are being asserted in one of our nearest neighbours, the Pacific French Territory of New Caledonia.
Barrister Patrick Lopez is representing the gay couple involved.
Patrick Lopez: The couple just want a certificate which proves that they are a couple, because the company of one of them gives an advantage to couple, so they asked the Mayor of the city to give them the certificate, and the Mayor of the city refused to give them the certificate despite he always gives the certificate to straight people.
Antony Balmain: So the couple want to simply register with the town’s civil registry, as being in a same sex relationship?
Patrick Lopez: Yes. They just wanted to have their relationship registered as all the straight couples do in New Caledonia.
Antony Balmain: Now is this in line with French law, the Pact Civil de Solidarite introduced two years ago?
Patrick Lopez: Yes, because the law of the Pact Civil de Solidarite which is a law of the 15th November 1999, gives a definition to the union between two people of the same sex or the opposite sex. And that’s why we claim for the application of the law in New Caledonia.
Antony Balmain: The Administrative Court in New Caledonia is declining to apply the French law, which recognises same sex rights.
But Mr Lopez says the gay couple are willing to appeal to the higher court in France, because they are only asking for what they believe are their rights under European and international law.
Patrick Lopez: European institutions want to get rid of all the discrimination between straight and gay people, that’s why France was bound to vote the law of the Pact Civil, the law of the 15th November 1999 because France has to follow the decision of the European institution, and most of the time the European institutions do more for the human rights than France can do.
Antony Balmain: Are you surprised that while France and many European countries have Federal laws to deal with this issue of same sex rights that in Australia there are no Federal laws?
Patrick Lopez: Yes, I’m really surprised to notice that in Australia there is no Federal law on the rights of people living as a couple. People want to have rights and obligation recognised.
Antony Balmain: So how is Australia faring, compared with the rest of the world? Democrats Senator from Western Australia, Brian Greig.
Brian Greig: We are light years behind comparable jurisdictions whether that be the UK, Canada, South Africa or New Zealand for example. We have no national anti-discrimination laws for lesbian, gay, bisexual and trans-gendered people, and there has been no serious attempt for the Commonwealth to override or invalidate discriminatory provisions in State-based legislation, whether that be in Tasmania or my home State of
W.A. for that matter. So we have very patchy human rights legislation around the country relating to sexual minorities.
Antony Balmain: Last year, following a landmark Federal Court decision, which found it was discriminatory to deny single women access to fertility treatment, Prime Minister John Howard spoke about the need to uphold family values.
But the Shadow Attorney-General, Robert McClelland, says the Prime Minister and the Coalition are out of touch both with respect to fertility treatment and other issues which affect same sex couples.
Robert McClelland: In this day and age there are a number of relationships and you’ve got to come into the real world, you just can’t, no matter what your personal view is, you can’t legislate to enforce a particular relationship, whether it’s heterosexual or otherwise in this day and age, it’s just unrealistic. So to govern properly, you have to recognise the reality of the world and then to put forward your criteria, for instance to identify the social and economic capability of the family unit, however constituted, to bring up a child, but you don’t pass pre-judgement as to whether it should be a heterosexual relationship or otherwise.
Antony Balmain: Well in Holland there is now law such that gay and lesbian people can get married, and in many European countries laws have been passed eliminating discrimination in the areas of superannuation and taxation. Should Australia be heading in this direction?
Robert McClelland: I think you’ve got to look very carefully at that sort of legal reform. Another example is in the area of estates, when someone dies, how the presumption of inheritance takes places. There can be a lot of injustices in that area as well. I think the law must recognise the reality of modern day life, otherwise the law just becomes out of date. So yes, certainly, that needs to be examined in Australia.
Antony Balmain: Can you guarantee that if Labor wins the next Federal election you would aim at eliminating discrimination against gay and lesbian people in Federal laws?
Robert McClelland: Well yes, our policy is that gay and lesbian couples should be treated equally with heterosexual couples. We have for instance, as a caucus, supported a private member’s Bill by Anthony Albanese to remove discriminatory provisions in superannuation trust deeds, which is a very significant area of injustice currently. And then Wayne Swan has also undertaken to review the Social Security area for instance.
Antony Balmain: You will guarantee that if Labor wins the next Federal election you will eliminate discrimination against gay and lesbian people in Federal laws?
Robert McClelland: Well yes, but it’s not as straightforward as saying ‘Well change the law overnight’, these are complex issues that need to be examined.
Antony Balmain: But are these promises by the Shadow Attorney General trusted by the gay and lesbian rights lobby? Democrats Senator Brian Greig says Labor’s recent record leaves a lot to be desired.
Brian Grieg: In 1995, former Democrats Senator, Sid Spindler introduced the comprehensive omnibus Bill known as the Sexuality Discrimination Bill, which would eradicate all discrimination against gay and lesbian people and same sex couples within Commonwealth legislation, so that would include things like Social Security, immigration, taxation, superannuation, the Australian Defence Forces. But the reality is that the numbers are there, the vote is there in the Senate and the current make-up of the Senate with the Democrats and the Greens and Labor for this Bill to pass the Senate. We could bring this Bill on tomorrow and have a thorough debate and vote on it, and if Labor was true to its word, then this Bill would pass the Senate. But the Democrats cannot get the support of the Labor Party in the Senate to bring on this Bill for debate, and that makes many people in the gay and lesbian community very cynical.
Antony Balmain: Concerns have been expressed by Labor and the conservative parties about the potential costs involved with amending laws such as in the areas of Social Security and taxation for same sex couples.
Senator Greig, however, believes these fears are ill-founded.
Brian Grieg: In fact in many cases the cost would be a positive to the government. For example, if you have a gay and lesbian couple and one partner is working and one is on unemployment benefits, then the one on unemployment benefits gets the full amount of dole. If it was a married or heterosexual de facto couple, then the person on unemployment benefits would not get the full amount of dole because their partner was working and they would get a lesser amount. But because same sex relationships are not recognised, always seen as being two single people, two individuals living together, so we actually experience positive discrimination in terms of unemployment benefits. So whatever money the government might lose in taxation for example, because it would mean that same sex couples could, for the first time ever, be able to claim their dependant spouses, their dependent partners for tax rebate purposes, the government would pick that up in Social Security costs. We’re not asking for special rights, we’re asking for equal rights; we want the same rights and responsibilities.
Antony Balmain: One area where lesbians and gay men are treated differently from heterosexuals before the law is in superannuation, where payment of benefits to a deceased person’s partner takes place at the discretion of the fund’s trustees.
Brian Grieg: When a partner, one partner in a same sex relationship dies, they can generally, not always but generally, get the superannuation benefits left to them from the deceased, although it sometimes involves a bit of a struggle, you need to sometimes involve lawyers and my understanding is in many cases you will pay a lump sum tax on that of 25%, which is not charged to married or de facto couples. So there’s still discrimination in receiving the superannuation contribution. But aside from that, surviving a same sex partner is utterly denied a death benefit, because the definition of spouse in the Federal Act, the Federal Super Act, is utterly clear and it says ‘You must be opposite sex partners’.
Robert McClelland: That can be a real area of injustice, for instance a gay or lesbian couple could have been living together for 30 years for instance, and the trustees completely turn their back on that stable relationship to give what could be a substantial amount of money to a distant relative, a niece or a nephew for instance if there were no other brothers or sisters, or whatever it might be. But that is certainly an area of injustice that needs addressing, indeed there’s several Law Reform Commission reports along those lines which can’t be ignored, if you’re going to bring the law up to date with modern relationships.
Antony Balmain: Labor isn’t the only one backing the calls by gay and lesbian rights groups for law reform in the area of superannuation at the Federal level. The Association of Superannuation Funds of Australia goes further, to say provisions in the Taxation Act which are discriminatory against same sex couples, ought to be changed as well.
Michaela Anderson is the Association’s Director of Policy and Research.
Michaela Anderson: We’d like to see them treated in exactly the same way as, say a de facto spouse would be treated, and that would give them exactly the same rights as a spouse with a marriage certificate. So we’ve suggested that in fact if you broaden that de facto category, you would be on the right road to equity.
Antony Balmain: So you think the Superannuation Act should be amended at the Federal level?
Michaela Anderson: Yes, you’ve actually got to do a number of things. The first one is you could change the Superannuation Industry Supervision Act so that it then allows trustees who feel uncomfortable that they’re stretching the law a bit, if you like, paying, so that they can comfortably pay same sex partners when there is a death of a partner. You’d also then have to look at those schemes, particularly public sector schemes, where there is a barrier to paying a same sex partner because of the definition of ‘spouse’. And then on top of that you’d have to look at the tax treatment. If you want true equity, you’d have to say that the tax treatment of a same sex partner should be the same as for other relationships.
Antony Balmain: The Democrats say they are in negotiations with the government over a Bill which is due to be reintroduced into parliament called the Super Choice Bill, which gives people the freedom to choose their superannuation fund. Senator Brian Grieg says because the Democrats are holding the balance of power in the Senate, they will only pass the legislation if the government includes an amendment eliminating discrimination against same sex couples in superannuation.
Brian
Grieg: It’s not actually before the Senate at the moment, but the government keeps indicating that it wants to bring it on soon. It is a key plank of its final year in this term of government. They want to see the successful passage of the Superannuation Choice Bill, which in part deregulates the industry and will allow all superannuants to choose the superannuation company of their choice, rather than have the employer direct them to a particular fund. Obviously the superannuation industry is keenly behind that, the government is keenly behind that, and it’s a Bill worth some trillions of dollars over the next decade, it’s a massive piece of financial and superannuation reform.
The Opposition, for various reasons, is not supporting the Bill, so that puts the Democrats in the box seat in terms of the passage of this legislation through the Senate. But we’ve made it very clear to the government that while we’re happy to support the Bill, because the government has conceded all of the amendments that we put to it and said, ‘Look, we’ll support this but we want this, and this, and this, and this to make it better’, and the government has come back to us and said, ‘Yes, we’ll cop all that. We’ll concede all those amendments, but the one that we’re having a problem with, the one which we really don’t want to pursue is ending discrimination against same sex couples’, which just leaves me a bit gob-smacked, because I can’t understand why a government would want to hold up such a massive piece of financial legislation for simple bigotry.
Michaela Anderson: The logic of attaching that provision on to the choice of fund legislation isn’t entirely clear to us, but we can understand their need for a vehicle with which to move forward on the issue of same sex partners. But it’s not a sort of natural fit in the choice of fund Bill, but there doesn’t seem to be any way to move this government forward.
Antony Balmain: Changes have been made to the State superannuation Acts in the ACT and in New South Wales. And those jurisdictions have also eliminated discrimination in the areas of property division, wills, stamp duty and hospital visitation rights.
In Queensland, changes were made to industrial relations and domestic violence law in 1999, recognising same sex relationships.
Tasmania is considering changes, while the new Western Australian Premier, Geoff Gallup, has also promised reform.
There is no change on the horizon in either South Australia(*see footnote)or the Northern Territory. But in Victoria, a massive Bill put forward by the Labor Government amending 44 Acts, is going back to the drawing board after being rejected by the Liberals, Nationals and two conservative independents.
Co-convenor of the Melbourne Gay and Lesbian Rights Lobby as well as senior lecturer at Melbourne University Law School is Miranda Stewart.
Miranda Stewart: It’s about providing some practical recognition in the law of lesbian and gay relationships, and extending that formal equality to people’s lives. So one of the biggest issues that we’ve found among our community, people who we’ve surveyed, people in public meetings, has been the invisibility of their relationships, the fact that this sort of thing usually comes up in a crisis situation, someone falls ill, the relationship is breaking down, somebody dies, there need to be property transfers or coronial inquests or hospital visiting or guardianship type issues. At that crisis point, people realise that the equality they thought they had doesn’t actually apply in real life.
Antony Balmain: Eighty-four percent of gay, lesbian and trans-gender people experience discrimination in Victoria, according to a study, called Enough is Enough, carried out for the Victorian Gay and Lesbian Rights Lobby last year.
This discrimination takes place often in areas many of us wouldn’t imagine, including health, consumer or business law, compensation and stamp duty.
Stamp duty in property transfers can cot people in same sex relationships thousands and even tens of thousands of dollars normally not paid by heterosexual couples, as Melbourne lawyer, Will and her partner, found out recently.
Will: My partner and I, who had fallen deeply in love about six years ago, and committed to buying a property together, we broke up in about September/October of last year, and we’re now in the process of trying to sort out our property, and as part of that process, obviously one of us would want to buy the other out of the house that we’re in. You know the other person wants to go on and buy another property. And as part of that in the transfer of the land, it’s looking like one of us is going to have to pay the stamp duty on that transfer, which would be OK except that if we were a heterosexual couple, that wouldn’t happen, we wouldn’t have to pay that.
Antony Balmain: And what has this meant for the way that you have been able to try to resolve your property question?
Will: Well it’s delayed it a bit, because we have to work all of those things out. What that means is that basically we’re still living together, I think the legal phrase is ‘separately under the same roof’, so we’ve got separate rooms now. But because one of us can’t afford to buy the other out with the stamp duty; I don’t want to anticipate special treatment, but what I do want is for the same things to apply to us as apply to any other couple who’ve kind of decided that no, this isn’t working, it’s time to move on. We’ve paid our taxes along the way, we’re pretty conservative, quiet citizens. I just figure why not treat us the same as everybody else, and it’s actually a bit upsetting at times, that you kind of have to work out strategies around that, which it’s a difficult enough situation to have to try to work out legal strategies to kind of deal with those things, is pretty upsetting.
Antony Balmain: But conservative politicians in Victoria are also upset at what they say is an attempt by gay and lesbian activists to raise their profile.
Independent MP, Russell Savage, from Mildura on the Murray River in Victoria’s north, says some of the proposed changes go too far.
Russell Savage: Well I believe that it is an attack on marriage, and the example for that is that we’ve got to bear in mind that being married and raising children is the most fundamental plank of our society. We are educating, we are grooming the next generation to take our place, we’re making a commitment for society, we’re making significant sacrifices. It’s not easy being a parent and raising a family, and therefore the status of marriage should have some, I think, unique entitlements, and I believe that we shouldn’t diminish those entitlements by spreading the area to same sex couples and people who are not married.
Antony Balmain: Well what’s wrong with lesbian and gay people having equality before the law?
Russell Savage: Well there may be some peripheral changes to the legislation that could facilitate that, but the government’s chosen to put these amendments into 44 Acts of Parliament in one Bill, it’s called an Omnibus Bill, and it’s impossible to effectively put amendments from our perspective, into those Bills to allow for some of those peripherals, like stamp duty changes.
Miranda Stewart: I am concerned though, particularly at Independents such as Russell Savage, and other politicians who are based in the country, that there is a real lack of understanding of the diversity of a rural community. There seems to be a perception that there aren’t any lesbians and gay men in the country, for example, and I think that leads to a real lack of support for that part of their constituency, and a real shame for those places where you want to encourage diversity and increase economic activity and a sense of community, that it’s time that country politicians turned round and really embraced that sort of diversity.
Antony Balmain: Around the world we have a number of countries who have extended same sex rights. In fact in Holland, you have the recognition of gay and lesbian marriage. Do you think Australia really is lagging behind the rest of the world?
Miranda Stewart: I think it’s lagging to some extent behind what we might want to see as our comparable countries, other industrialised countries which have strong rights regimes, strong human rights records, I think that’s pretty clear there’s a trend that is unstoppable in Europe. Europe has kind of really pulled ahead, some of the European countries have really pulled ahead there, and they’re the ones. I think some of the Nordic countries are going to follow very soon with marriage. Many of those countries already had had some form of relationship recognition for same sex couples, either a de facto style regime that we have here, or a registration system.
Antony Balmain: Miranda Stewart, Co-Convenor of the Victorian Gay and Lesbian Rights Lobby, also believes embracing diversity is essential in rural areas to avoid the alienation which can be associated with suicide for some gay and lesbian people.
Edward Young: We all, Australians, live in this country, we all have to be treated equally before the law no matter who we are and no matter what our sexual orientation is, no matter what the sex of our partner is. What is important is that we are all treated equally before the law.
* In South Australia, Labor Member, Frances Bedford, has introduced a Private Members Bill, which seeks to amend the definition of spouse in that state's superannuation legislation. The Bill is in its second reading.
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