Same-sex discrimination in Federal law

Contents

Same-Sex: Same Entitlements

Human Rights Commission calls for law reform

June 2007: The Human Rights and Equal Opportunity Commission has released its report on discrimination against same-sex couples and families. The report is called Same-Sex: Same Entitlements. The report identifies 58 peices of legislation that need to amended to stop discrimination. The report comes at the end of three months of community consultations.

CCL has called on the federal Attorney-General to end discrimination against same-sex couples and families in Australia. CCL welcomes the Human Rights and Equal Opportunities Commission's report which identified 58 pieces of legislation that violate the rights of gay and lesbian Australians.

Young v Australia

Human Rights Committee finds that Australia discriminates

While same-sex relationships are recognised in most circumstances in New South Wales law, same-sex relationships are not recognised by the Federal government.

On 4 September 2003 the United Nations Human Rights Committee (UNHRC) determined that the Australian government had breached the human rights of a Sydney man by refusing his application for a veteran's dependant pension on the grounds that same-sex relationships are not recognised in Federal law.

The UN press release states:

Case No. 941/2000: Young v Australia
This case concerned an Australian man who applied for a pension on the basis of being a dependent of a war veteran. He was refused as he was not considered a "member of a couple" within the meaning of the pertinent legislation. He complained that the State party's refusal, on the basis of him being of the same sex as his partner, that is, due to his sexual orientation, to provide him with a pension benefit violated his right to equal treatment before the law and was contrary to article 26. As the State party had provided no arguments on how a distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, the Committee found a violation of article 26.

Article 26 of the International Covenant of Civil and Political Rights states that:

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 race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Under international law, the Australian government has 90 days to inform the UNHRC of how it intends to remedy this violation.

On 10 September 2003 the Senate passed a resolution calling upon the Government to recognise same-sex relationships in Federal law.

Read the full determination of the UN Human Rights Committee.

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Senate calls on government to stop discriminating

On 10 September 2003 the Senate debated and passed the following motion moved by Senator Greig (Democrats, WA):

“That, in the opinion of the Senate, the following is a matter of urgency:
The need for the Australian Government to acknowledge that on 6 August 2003, in the case of Young vs Australia, the United Nations Human Rights Committee found that:

(i)the Australian Government's refusal to grant Mr Young a pension on the ground that he does not come within the definition of “dependant”, for having been in a same-sex relationship, violates his rights under article 26 of the International Covenant on Civil and Political Rights on the basis of his sexual orientation;

(ii)the Australian Government provided no argument on how the distinction between same-sex partners and unmarried heterosexual partners is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction was advanced;

(iii)as a victim of a violation of article 26, Mr Young is entitled to an effective remedy, including the reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law;

(iv)the Australian Government is under an obligation, as a signatory to the First Optional Protocol to the International Covenant on Civil and Political Rights, to ensure that similar violations of the Covenant do not occur in the future; and

the need for the Australian Government to legislate for partnership recognition of same-sex couples under Commonwealth law.”

Speeches of:

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More Information

Read the full determination of the UN Human Rights Committee in Young v Australia.

Read the UN Press Release on Young v Australia.

Read about Australia and same-sex marriage.

Visit the Gay and Lesbian Rights Lobby website for more info.

Visit UNSWCCL's same-sex discrimination page.

The Australian Democrats have announced that they will re-introduce their Sexuality and Gender Status Discrimination Bill into the Senate.

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