Chapter Six

Inquiry into Sexuality Discrimination

Chapter Six

CHANGES TO COMMONWEALTH LEGISLATION

Introduction

6.1 Although a number of organisations advised the Committee that there were some useful terms and forms of protection in State and Territory anti-discrimination legislation, there was general support for the Commonwealth implementing a specific sexuality and transgender discrimination bill and taking action to amend other legislation.

6.2 There were several reasons for this support, including the belief that Commonwealth legislation would:

Australia's International Standing

6.3 Many witnesses discussed in some detail the issue of Australia's international obligations, the need to enforce these, the extent of the external affairs power and the meaning of various international covenants. [1]

6.4 Those who believed the external affairs power gave the Commonwealth the means of enacting legislation which was comprehensive, also believed that all legislation - State or Commonwealth - should similarly reflect the breadth and depth of the international standards:

6.5 The idea that one could meet an international obligation by having a range of legislation with different rights was seen as illogical and also as discriminatory to some of the citizens of Australia:

6.6 In this context, the issue of 'status' was not so much sexual orientation or gender status, but one's geographical location. The same point was also made in respect of the legal status of transgender people (although raising complex issues relating to availability of documentation): [4] 'it is only just that an Australian citizen's state or country of origin should not in itself [affect] their treatment under Commonwealth law.' [5]

Provide a standard for Australia

6.7 Some witnesses indicated that one of the reasons for Commonwealth legislation was that it would assist those states which had little or no anti-discrimination legislation, and would thereby indicate that Australia was at least meeting minimal obligations at an international level and to its own citizens.

6.8 For Tasmania and Western Australia, federal legislation would grant access to a Commonwealth body and provide improvements to employment, service provision and other areas which were under Commonwealth control. 'It seems to me ... that human rights override states' rights, and I believe that certain inalienable rights should not be subject to state boundaries.' [6] It would also require state public sector employment to operate according to the provisions of the legislation in these two states, as in all others. [7]

6.9 As was pointed out by witnesses, the Australian Constitution does not allow for different treatment on the basis of either status or residence; thus, it was argued, legislation which permitted this would be unconstitutional, as well as being in contravention of the provisions of the ICCPR: [8]

6.10 The same witness also advised that Australia could be in breach of its obligations under the ICESCR through failing to provide equal treatment to people in respect of taxation, superannuation and pensions. [10]

6.11 Commonwealth legislation was also seen to be beneficial in that it made a statement at the national level about people who were, or felt, marginalised:

Provision of a comprehensive law

6.12 Quite apart from the issue of inequity demonstrated by varying access to anti-discrimination legislation, [12] witnesses believed that the multiplicity of laws was confusing and expensive. The Queensland Anti Discrimination Commission, for example, believed that the inconsistencies between State and Federal legislation caused problems both for administrators [13] and those more directly involved in a complaint. [14] Another witness believed multiple laws were unnecessary:

6.13 Evidence was provided to the Committee that harmonisation of Commonwealth and state legislation was planned, but that this had not progressed far. The harmonisation process was stated to have two components - seeking by various means to overcome some of the inconsistencies in the existing legislation, and possibly integrating all Commonwealth anti-discrimination legislation to form a comprehensive act as existed in states and territories. [16]

6.14 The process by which harmonisation of legislation would overcome some of the problems inherent in inconsistent provisions, or duplication of various provisions, included the development of consistent law, and the use of templates so that:

6.15 The development of an omnibus Commonwealth anti-discrimination law was generally considered favourably by witnesses. [18] It was seen as being both administratively more effective and as offering the opportunity to provide consistency and a wider range of rights. [19] Currently, each of the anti-discrimination acts had to be amended separately in order to accommodate technical and content changes. More importantly, some witnesses pointed out, it was possible to have different provisions in anti-discrimination legislation - such as that relating to indirect discrimination for example - which were unnecessary: [20]

6.16 On those occasions when a standard format was undesirable, variations appropriate to the nature and objectives of each act would be allowed. [22]

6.17 Witnesses pointed out that the problems identified with omnibus legislation related more to the exemptions in legislation than to the size of the legislation.

Legislation as a Commitment by the Commonwealth

6.18 There was a widespread belief amongst those who supported Commonwealth legislation that it must provide real coverage of issues and it must be properly implemented. What was understood by this varied somewhat, but many witnesses were concerned that there would be a piecemeal [23] or lacklustre approach by which Commonwealth legislation might provide some basic coverage, but fall far below the level offered by some of the States such as New South Wales. Many witnesses considered that the legislation offered an opportunity for a major statement on human rights and should take advantage of provisions already used elsewhere (in national legislation and international covenants) to not only create some uniformity but to maintain the principle of essential equality before the law:

6.19 As a part of this broad approach, it was believed that the Commonwealth legislation must be all embracing, without being too specific:

6.20 A concern of some witnesses was that while State laws were discriminatory in a range of areas, Commonwealth anti-discrimination law could exacerbate some problems. If a new law did not take a holistic approach it could leave some people worse off financially and in other ways through affecting rates of payment under Commonwealth Social Security and other legislation:

6.21 The 'lack of will' that concerned witnesses was perceived in one areas in particular - the uncertainty about the extent to which the legislation would override State and Territory laws that were antithetical. [27]

6.22 A major reason why a number of people supported the idea of Commonwealth legislation was that they believed that the Commonwealth should specifically seek to override the discriminatory provisions in other legislation, both Commonwealth and State/Territory. In this fashion, it was believed, provisions which offered less than the Commonwealth legislation would be redundant. At the same time witnesses also stated that if the Commonwealth legislation was not broad, then the benefits of existing state legislation should not be lost:

6.23 Many witnesses expressed a belief that there would be limited value in Commonwealth legislation which did not cover discriminatory state legislation. By this they meant not only fairly narrow anti-discrimination legislation which had too many exemptions, or which contained offensive terms, [29] but also other State, Territory and Commonwealth legislation that limited the effective operation of anti-discrimination provisions: [30]

6.24 The Sexuality Discrimination Bill 1995 'is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act' (Section 7(2)). [32] In this context, the 'law' of a State or Territory is specifically defined as anti-discrimination legislation (Clause 7(1). In practice, this means that compatible anti-discrimination legislation continues to operate, although people may not make claims under both.

6.25 The Bill clearly states that employment [33] in a State's public sector and agencies is covered, that is, that the provisions will apply to State employment (Clause 5, 'employment') Insofar as other provisions in State anti-discrimination laws are not compatible with the Commonwealth legislation, the Commonwealth legislation will apply. However, insofar as the Commonwealth legislation does not deal with certain issues in its anti-discrimination law then State anti-discrimination law will operate. Where a State does not deal with an issue - such as the rights of transgender people - then it is assumed the Commonwealth legislation will operate to make up the deficit. [34] However, this would need to be tested. [35]

6.26 An issue which concerned many witnesses was the capacity of the Commonwealth legislation to override other State legislation which was not anti-discrimination legislation. There is no specific provision in the legislation to do so, and the author of the bill has stated that the bill is limited to Commonwealth legislation. It does not deal with State issues such as access to IVF services. [36] Thus, other State legislation, including legislation such as Criminal Codes which may contain discriminatory provisions, will not be overridden. It may be argued that this means the Commonwealth has failed to conform to the provisions of the ICCPR through not providing uniform legislation available to all members of the society. [37]

6.27 One of the concerns which witnesses expressed in this regard was that the Sexuality Discrimination Bill 1995 also provided that nothing within it would prevent a person 'from taking action to stop another person from engaging in unlawful behaviour '(Clause 8). At the time of public hearings of the Committee's inquiry, the Tasmanian Criminal Code's restrictions on homosexual and some forms of heterosexual sexual activity were still in force; it was believed these would not have been affected by the implementation of Commonwealth legislation. [38] Although the Tasmanian law has now changed, it may remain possible for State legislation to prohibit an action which the Commonwealth legislation would otherwise allow.

6.28 An example of this would be the Western Australian legislation - the Law Reform (Decriminalisation of Sodomy) Act 1989 - which prohibits the provision of information on homosexual matters to people who are or think they may be, homosexual, and who are under the age of 21. [39] The provisions in the Sexuality Discrimination Bill 1995 allow and encourage the provision of education services. Quite apart from the issue of distinguishing between provision of information and encouragement of homosexuality, [40] this State law is not part of anti-discrimination law; and any State which wishes to limit education and information services could include a similar provision.

6.29 Other evidence given to the Committee expressed some concern that State anti-discrimination legislation could be subject to change in crucial areas such as the definition of 'lawful sexual activity', and that it would therefore be possible for the benefits of Commonwealth legislation to be undermined:

6.30 With respect to existing Commonwealth legislation, the Sexuality Discrimination Bill 1995 does not directly address a number of complex issues arising from discriminatory provisions in legislation or regulations. However, all Commonwealth legislation is affected by the bill. Only the available exemptions as listed in the legislation, and the possibility of seeking an exemption from the provisions of Clause 107, relating to same sex couples, will restrict the application of the law's provisions to other Commonwealth legislation.

6.31 In its current form, the Sexuality Discrimination Bill 1995 provides a brief exemption in respect of discriminatory actions done in direct compliance with legislation. There may be circumstances where any disadvantage arising from this can be overcome by arguing that the action was not 'in direct compliance' or not 'in compliance' [42] However, this would require considerable input by the complainant and may not result in systemic change.

6.32 Unless a specific act was given exemption from the provisions of the legislation, there would be little value in complainants seeking to challenge existing legislation, and it would be preferable to wait for the expiration of the six month period of grace.

6.33 The use of a sunset clause regarding the time-limited operation of other discriminatory legislation was recommended by witnesses, including the Anti Discrimination Board of New South Wales and the Kingsford Legal Centre, both of which referred to the provisions of the Commonwealth Disability Discrimination Act 1992. [43] A recommendation was also made that the Sexuality Discrimination Bill 1995 allow for a committee to 'review state, territory and federal laws and administrative practices and to report to the Human Rights Commissioner on the need for legal and administrative reforms.' [44] Any such committee was expected to operate on an ongoing basis.

6.34 At Clause 2 of the Sexuality Discrimination Bill 1995, provision is made for Clause 107 to come into operation six months after the commencement of the Act. At Subclause 29(3) similar provision is made in respect of Commonwealth legislation affected by Divisions 1 and 2 of the Sexuality Discrimination Bill 1995 - such legislation must conform with the provisions of the Bill six months after commencement. Determinations or decisions of the Human Rights and Equal Opportunity Commission, and orders of 'a court', are exempt from the provisions of Subclause 29(3). [45] There is no provision for ongoing review of legislation, nor any specific reference to the purpose of the six-months' delay in commencement of Clause 107 or as provided for in Subclause 29(3).

6.35 The Committee believes that any ongoing review of legislation, after the initial assessment of Commonwealth legislation, should be undertaken as a part of the ordinary duties of the Human Rights and Equal Opportunity Commission. However, the Committee considers it necessary to recommend specifically that, as the purpose of the six-months' time period after commencement has been stated as allowing time for examination of existing legislation, [46] appropriate planning for such a review should be made. The Committee is also of the view that Clause 107 currently stands in isolation from the remainder of the Bill and should be made new Clause 17.

Areas of Change

6.36 Although many witnesses had no specific recommendations on the process by which the bill should be changed, they addressed in some detail the philosophy behind suggested changes. As outlined in Chapter 2, gay, lesbian, bisexual and transgender people share a concern about discrimination and violence. Different groups acknowledged the concerns of others even if they did not share them, and many groups were willing to acknowledge that some people valued rights they did not, and vice versa. However, they do not necessarily agree between or among themselves as to the ways in which to limit such discrimination, although the majority of witnesses supporting the rights of non-heterosexuals and transgender people wished rather to change the content of some social institutions than the whole social framework.

6.37 The areas which caused most concern were three interrelated issues:

6.38 The emphasis on these issues may reflect the relative strength of some groups, and does indicate a concern to obtain the benefits that are generally available to other couples. However, there was also an awareness of the needs of others such as transgender persons and those not in relationships.

Recognition of relationships

6.39 The Sexuality Discrimination Bill 1995 does provide for some form of relationship recognition through Clause 107 which grants to same sex couples the same rights as are available to de facto heterosexual couples. Exemptions from the provisions of Clause 107 are available through the use of regulations which may state that certain acts are not affected (Subclause 107(3)). The New South Wales Council for Civil Liberties believed that leaving such exemptions to regulation was not a sound process, since this clause of the bill was of considerable significance:

6.40 Acknowledgment of relationships - or not - was a major concern, partly because the refusal of society to do so in a number of ways was seen as a summation of social attitude to non-heterosexual people. It was also a problem for transgender people, since government refusal to accept a change of gender could have a direct impact on a person's identity and sense of self.

6.41 For some, 'marriage' in the sense of a formal state-endorsed relationship was irrelevant: [48]

6.42 For others, a formal recognition appeared to be a major concern, regardless of any benefits that might follow. This concern was met in part by the various informal and quasi-religious ceremonies that people were able to arrange. [50]

6.43 As was noted by the Commonwealth Attorney General's department, the interpretation of the Commonwealth Marriage Act 1961 limits the marriage contract to be between a man and a woman, thus limiting same sex marriage and also placing some limits on marriage between a transgender person and another person [51] - although the Marriage Act itself does not refer to the gender of the parties to a marriage. Thus the Commonwealth, even through use of the external affairs power, could not permit same-sex marriage.

6.44 There was some disagreement with this view on two grounds, the first of which was that marriage might be interpreted more flexibly in the future. [52] The second was that refusal to allow same sex marriage might be an act that was not in direct compliance with the legislation:

6.45 This assessment refers in particular to the provision in the Sexuality Discrimination Bill 1995 (Subclause 29(2)) that 'Divisions 1 and 2 do not affect anything done by a person in direct compliance with a law of the Commonwealth.' [54] The Department of Social Security, however, stated that the Social Security Act 1991 did specify that people had to be 'legally married' or in a marriage-like relationship to a person of the opposite sex to be considered as a 'couple'. [55] With respect to transgender people (assuming a male/female rather than a same sex relationship) a post operative person living with a person of the opposite gender would currently be considered a couple, but a pre-operative person would not. An amendment to the Social Security Act would be required, including the latter to be seen as part of a 'couple'. [56]

6.46 Although there are some grounds for considering that the treatment of same sex couples under the Social Security Act depends more on administrative arrangements than on the legislation itself, the Social Security Act would have to be amended to change the definition of 'couple'. Since such a change would not confer any rights on same sex couples, other than those available to other couples, [57] and would not provide a recognition of 'marriage', it could be undertaken without an amendment to the Marriage Act. Administrative arrangements in respect of payments would not necessarily be more onerous than for other couples. [58] There is no clear reason why transgender partners could not also be defined as a couple, or why the word 'partner' could not be included in a definition regarding eligibility for certain payments, services or benefits if there is objection to some people being included in the word 'spouse'. This matter is considered further below. [59]

6.47 Other objections to the refusal to allow marriage to transgender persons were based on arguments addressing the reason for marriage and demonstrating certain logical inconsistencies in current attitudes:

6.48 At present, other forms of relationship may be entered into without restriction apart from those relating to age of consent. The Commonwealth already recognises several of these - de facto heterosexual couples, and certain same sex relationships - for various purposes. [61] States and Territories have the power to recognise different relationships for a range of purposes, although currently only the Australian Capital Territory has specific legislation pertaining to a range of 'domestic' relationships. [62]

6.49 Any changes to actual payments by Commonwealth agencies such as the Department of Social Security [63] and bodies such as superannuation trustees [64] would only result from Clause 107 coming into effect and acknowledging various forms of partnership: couple payments only arise from there being a couple or part of a couple making a claim. In theory, Clause 107 could also cover other relationships where both parties are of the same sex even though one is transgender, but is not post-operative (assuming there are no additional changes in the Sexuality Discrimination Bill 1995 to the legal status of pre-operative transgendered persons). The extent to which this type of relationship would be recognised would depend on accepting the fact that the 'same-sex' couple was living 'on a genuine domestic basis' [65] (even though the couple would define themselves as being of different sexes, and as being a man and a woman living in a de facto relationship).

6.50 The Department of Social Security did not perceive that it would automatically be entitled to an exemption (under S 107(3) or on any other basis) and stated that the Social Security Act 1991 would have to be amended in order for the department to comply:

6.51 The extent of support for changes in the Social Security area is hard to measure. Although some witnesses referred to the balance between gains and losses, others noted that one group might experience gains and another group altogether might experience the losses - thus there would be no balancing out between the same people. [67] This reflected the fact that gay, lesbian, bisexual and transgender people varied in their economic well-being, and that the most disadvantaged were those most likely to be affected by changes to social security payments and least likely to have access to superannuation.

6.52 The major objections to Clause 107 were that it appears to provide no element of choice, and that it would suggest that people who are considered to have a long history of unequal status were now equal. [68] Insofar as Clause 107 does not permit people living in a relationship on a 'genuine domestic basis' to be other than a couple, it does not provide a choice. It would allow same-sex couples to be perceived as a couple either after a two year relationship or after the different periods of time specified in respect of opposite sex de facto couples in legislation (Subclause 107(2)) [69].

6.53 As noted above, there was a belief that there needed to be a time period during which some form of catch-up could occur for people who had previously been discriminated against. [70] In most instances, this belief was expressed in terms of special measures which would enable the retention of sexuality-specific organisations and services; and the exclusion of heterosexuals and others from these; and other provisions which could assist the development of sexuality specific groups. However there was also very strong support for the idea that a form of special measure would also be to quarantine people from disadvantages such as receiving reduced benefits through being a member of a couple.

6.54 In part this resulted from the belief that those most affected by reduced benefits would be those most likely to be dependent on them. [71] From evidence provided, this would include transgender people unable to remain in their previous employment [72] and/or unable to develop a career; [73] women rather than men; and women with children rather than those without: [74]

6.55 The approach taken by the Sexuality Discrimination Bill 1995 was seen as sound in theory but limited in application, being an example of a piecemeal approach. 'My problem with this bill is that it attempts to deal with this issue without looking at the whole patchwork of laws that concern couples and families, and it specifically does not cover the field.' [76]

6.56 Other objections to the automatic formalisation of relationships provided through Clause 107 concerned the assumptions both that homosexuals and transgendered persons were financially dependent or interdependent [77] and that non-heterosexual people wished to replicate the institutions of heterosexual society, including through relationships of interdependency. It was also suggested by another witness that the form of relationships which existed between heterosexual persons did not necessarily exist between non-heterosexuals:

6.57 Regardless of the validity of the above statement, [79] both any inequity between members of couples, and financial disadvantage arising from life experiences is not restricted to gay, lesbian, bisexual and transgender people. Although a number of people recommended that there be detailed evaluation of the likely effects of Clause 107 on non-heterosexual and transgender people, [80] the Committee believes that such an evaluation should be done after the Clause has been in operation for two years. This would enable any disadvantage to be identified from experience.

6.58 Heterosexual couples are generally perceived to form a couple when they live in the same accommodation as husband and wife. The relationship is assumed to be broader than a sexual relationship and can include sharing of responsibilities and financial dependency or interdependency. De facto couples are perceived as couples after different time periods, from a few months to two years, while married couples exist from the date of marriage.

6.59 In attempting to determine if same sex relationships are similar to heterosexual ones, emphasis has been placed on both the extent of financial interdependency and of the exclusion of others. This emphasis may reflect some beliefs that same sex couples are differ from heterosexual couples and are both financially independent of each other and do not maintain stable monogamous relationships - in short, that they do not reflect a stereotype of heterosexual couples.

6.60 Some of the evidence to the Committee suggested that some same sex couples were financially independent of each other. [82] However, this does not mean that all such couples are independent, nor that the retention of separate financial arrangements means each has a substantial income. Other evidence did indicate that long term relationships were common [83] although some evidence did suggest more than one partner, or more than one relationship at a time. [84]

6.61 The Human Rights and Equal Opportunity Commission was not especially concerned with the precise meaning of the word 'genuine', although accepting through its use that not all relationships were 'genuine' or bona fide. [85] Although these words appear to, and can, have a moral connotation, they also reflect the effort made by government to identify areas of dependency or interdependency, particularly when a claim is made for welfare support. [86] Current dependency-based rules preclude payment of various benefits to a dependent person who is to be maintained by a partner. [87] On the same grounds, two 'single' unemployed persons living in a long term bona fide relationship not recognised by government may be eligible for a greater rate of benefits than if their relationship was recognised; or one of the two would be eligible for benefits whereas, as a partner, he or she might not.

6.62 Dependency is also a crucial concept in superannuation and insurance payments and in the payment of other benefits, although it is assumed with respect to heterosexual persons regardless of their actual financial arrangements. [88] Same sex couples are obliged to demonstrate financial dependence or interdependence in respect of superannuation, whereas other couples do not; and may be unable to claim a pension even if they have access to lump sum payments. Heterosexual partners or a surviving partner may experience no such difficulty in obtaining both a pension and a lump sum payment. [89] Thus, while dependency for same sex couples is not currently recognised by Social Security legislation, it is essential for superannuation purposes. This issue is considered further at Paragraphs 6.124-6.125.

6.63 It could also be argued that the bona fide nature of relationships is eroded not by the choice of the partners but by their exclusion by law from various activities that are freely available to other couples or partners, such as major life decisions relating to medical treatment. [90]

6.64 Given that the major purpose of assessing whether a relationship is bona fide is to include or exclude, and to allocate responsibility and obligations, clear and consistent definitions should be established. [91]

6.65 Witnesses expressed some uncertainty about the status of the protection afforded to various groups under Clause 107. In particular, they were uncertain if there was a need to provide additional protection to same sex couples other than that available through Clause 107; and uncertain of the nature of any benefit provided by this clause to transgender persons and the best means by which to overcome any lack of cover. [92]

6.66 With respect to the extent of protection afforded by Clause 107, HREOC pointed out that the Sexuality Discrimination Bill 1995 does not provide a 'legal' status either for 'same sex and transgender relationships [or] for those who change their gender.' [93] Clause 107 does not acknowledge the specific problems of transgender status or the status of couples one of whom at least is of transgender status. However, insofar as Clause 107 does provide to de facto same sex couples the same status in respect of Commonwealth legislation as it does to de facto heterosexual couples, it does provide a form of legal status at a Commonwealth level:

6.67 The New South Wales Council for Civil Liberties also indicated some uncertainty about the effectiveness of the clause because of its limited application:

6.68 From the statement provided by HREOC and others there appears to be no reason why the Commonwealth could not establish a 'legal recognition' process of partnerships both for same sex couples [96] and transgender couples, and for the recognition of the status of transgender people as men or women and as transgender. This would assist not only in recognising gender status per se, but in acknowledging the importance of gender status in respect of partnerships. It would avoid the problem experienced by those who may currently be classified as single people because their gender status is not acknowledged.

6.69 The Committee has considered the particular problems experienced by transgender people and believes there is no reason why people who choose to be part of a couple or a partnership should be deprived of recognition as a couple or partnership because one or both is a transgender person. The Committee recognises that an exemption to an amended Clause 107 (New clause 17) may be sought in respect of the Marriage Act 1961.

6.70 Recognition of same sex couples was seen as bringing both benefits and disadvantages. Costs were seen as a major factor in some cases, through the provision of various partner or family benefits. [97] If the legal recognition did not extend to state matters, and the Commonwealth legislation did not override state provisions, then access to many other services would not be available. [98]

6.71 Although the Migration Regulations 1992 did recognise same sex partners of Australian citizens in respect of applications for interdependency visas, [99] the Department of Immigration and Multicultural Affairs was unable to recognise any such relationships for same sex couples applying for other visas, including overseas same sex marriages. [100]

6.72 The basis of this situation appears to be that a quasi-marital (dependency) status is granted where one of the parties is an Australian citizen (interdependency visas are available to others than partners) whereas all applications which do not involve a relationship with an Australian citizen do not extend these provisions. It should also be noted that, while the spouse of an Australian citizen may be granted citizenship without having to go through the usual processes, de facto heterosexual and same sex partners of Australian citizens do not have access to this benefit. [101]

6.73 It was also stated on several occasions that some issues were too detailed and complex to be included in legislation without further consideration. The issue of recognition of relationships and the impact of resulting changes was one such matter:

'The issue of same sex relationships and the type of legal regulation they should be subject to is a complex one which has not been properly investigated. It is inappropriate for the Commonwealth to seek to regulate such relationships before such an investigation ... is conducted. Thus, Part 6 of the Bill should be deleted.' [102]

6.74 However the Committee, although recognising the complexity of this issue, especially with transgender couples, believes that assessment of the effects would be best carried out through assessing the changes that occur and any exemptions that are sought. It has recommended that this clause be maintained and amended (see Recommendation 3 of this Chapter).

6.75 Administrative or legal protection for transgender persons at all stages of transgender life needs to be clearly established in order to avoid the complexities and uncertain status that affects transgenders:

6.76 Of those persons who discussed the status of transgender people, there was limited objection to some form of recognised or legal status for people who had undergone re-assignment surgery. This was on the grounds that such people had taken specific action to become a specific gender and this fact provided a form of certainty for others. However, those who had not undertaken such surgery were often seen as not being genuine in their commitment. [104]

6.77 Other evidence suggested that the multiple stages involved in changing gender status required a range of 'appropriate' responses from society, including education, tolerance, legislative protection and legal status. The more permanent the change, it appeared, the greater the need for legal protection [105]or recognition, [106] but some of this emphasis was made by those who had been re-assigned and was not always shared by those who were unlikely to undergo any surgical procedure.

6.78 Certainty or consistency appeared to be the major factor influencing the opinion of government agencies and others. [107] Concerns expressed about granting legal status to other transgender people referred to the possibility of fraud [108] and continual changing from one gender to the other. [109] Although little evidence was offered as to the latter issue, and some evidence given that this was not likely (and not on a continual basis), [110] as well as to the fact that such change as did occur was rarely fraud-linked, there was limited support for legal recognition of pre-operative or non-operative persons:

6.79 In response to the proposed legislation, the ADF stated that it would seek an exemption in respect of all transgender members of forces who had not had surgery. The argument in this case was less a matter of entitlement to benefits and more a matter of status in relation to duties, and the importance of team cohesion. [112] The ADF appeared to have been strongly influenced in its decision by the belief that people would identify as a member of the opposite sex on an opt in/opt out basis and was especially concerned that a loose definition of transgender would enable people to avoid combat and also disrupt the operations of a team. [113]

6.80 With respect to overseas postings of ADF personnel (as distinct from APS staff) some restrictions were in place which were a response to the standards of the countries to which people were posted:

6.81 The Department of Foreign Affairs and Trade also expressed some reservations about the definition of transgender in the proposed legislation, believing that it could offer opportunities to obtain passports as transgendered persons 'to maliciously or criminally obtain a new identity.' [115] The Department's objections were similar in some ways to those of the Attorney General's department. [116] Nonetheless, the department did provide appropriate passports for postoperative transgender people, and documentation for pre-operative persons [117] that is, those who were in the process of undertaking surgery, [118]again on the basis of 'certainty' as to identity being established through an irreversible process.

6.82 Recommendations as to acceptable legal changes concerned the establishment of a national register similar to that established under South Australian legislation, the Sexual Reassignment Act 1988. [119] However, this particular register only provides protection to persons who have undergone re-assignment surgery, as opposed to including all persons who consider they are in the process of, or have undergone, some form of gender change. Evidence received from other states also indicated that documentation was only provided to people who had undergone re-assignment surgery. [120]

6.83 There appears to be no reason why any national documentation process should not be able to accommodate a change of gender status, whether this is by re-assignment surgery or any other means. To offer this option would overcome some of the current objections to the legislation. This is not to say that there will be no objection to any proposal to establish a register since some witnesses believed that some transgendered persons could change gender on a regular basis. [121]

6.84 The Committee believes that any registration of change of gender should be a matter to be discussed with States and Territories, as part of the process of establishing national standards regarding acceptance of gender change and provision of documentation for all trangenders. While acknowledging the concerns expressed about individuals obtaining another identity fraudulently, the Committee believes that such concerns can be reduced through effective administration - for example, the Office of the Northern Territory Registrar General advised that there was limited access to the original birth certificates of those persons who had received a new certificate after reassignment surgery, and penalties for intended fraudulent use of the original birth certificate. [122] The issue of developing national documentation is considered further below. [123]

6.85 The Sexuality Discrimination Bill 1995 provides limited protection in respect of people being treated as a member of the sex with which they identify. At present, the bill requires that people be recognised as the sex stated on a certificate issued by a state; that people not be discriminated against because they are transgendered persons; or because they are of a specified sexuality (see Clauses 23-25 especially). It may be that such protection is not available until people are able to clearly identify their preferred status (including change to another sex, rather than transgender status). As it is, these sections in the legislation permit states which do not accept transgender status to refuse to re-issue a birth or other certificate, even though the person may have been through re-assignment. [124]

6.86 As noted in Chapter 4, the bill did not provide specific protection for people who are discriminated against on the basis of not having their gender change acknowledged, that is, if they are not treated as either a man or a woman. Proposed amendments to Clause 6 of the bill have now provided further protection to transgender people.

6.87 There is no barrier to the Commonwealth providing protection to transgendered persons, although the external affairs power to do so is slightly more tenuous insofar as existing covenants are concerned - that is, there is no specific reference to transgender people in the two main covenants and less 'international concern' about transgender people than about homosexual people. [125] Nonetheless, it could be argued that there is sufficient flexibility within an understanding of the ICCPR to provide for transgender issues under 'other status' or 'sex'; and to consider that the problems experienced by transgender people are an invasion or breach of privacy which is also prohibited under the ICCPR. [126] Current levels of international concern and interest, while not as obvious as they are for homosexuals, are reasonably high in respect of transgender issues. [127]

6.88 The legislation as currently drafted does oblige Commonwealth programs and services to be provided in a non-discriminatory fashion; does not permit information to be sought if it is not sought from other parties who are not transgendered persons or not of a specific sexuality; and obliges acceptance of documents at face value (such documents being State-issued documents providing information about a person's sex). However, this is very much limited to documentation provided by the States, and the use of this and other information by some agencies. The extent of this power, seemingly broad, is not specified. [128]

6.89 The Anti-Discrimination Board of New South Wales believed it was important for the Commonwealth to accept State documents relating to 'recognised' transgender persons. [129] Other witnesses, however, did identify some of the problems that might occur if there was no systematic process of recognition or no awareness of possible incompatibility of legislation. It is not clear, for example, if Commonwealth acknowledgment or acceptance of State certificates of registration would permit marriages to occur between 'recognised' transgender persons and a person of the opposite sex. [130] Unless there is an intention to specifically amend the Marriage Act 1961 to allow such marriages, any nationally accredited documentation may need to limit the extent to which certificates are accepted - that is, that they may be used for passports but not for obtaining a marriage licence (although licences are provided by States and Territories, which also register marriages). [131]

6.90 Nationally accredited documentation may be useful for the processing of passport applications - at the moment, it is established practice to provide an appropriate passport or temporary travelling document for people who are postoperative or intend to undertake surgery. [132] Acceptance of all documents, even those which may be granted to people who have not undergone surgery, would be seen as causing difficulties in the issuing of passports. [133]

6.91 Without use of the external affairs power, the Commonwealth cannot oblige all States and Territories to issue new birth or other certificates; it cannot force all States and Territories to accept certificates issued by other states. In the Sexuality Discrimination Bill 1995 it is proposed that all State and Territory certificates referring to a change of sex be accepted, which in effect is an expression of Commonwealth power obliging all States and Territories to accept documents including those issues in other states and territories, for a specific purpose (such as the issuing of a driver's licence in a particular sex or gender). Subclause 25(2) is therefore a use of the external affairs power since the Commonwealth does not ordinarily have the power to impose such a condition.

6.92 The Sexuality Discrimination Bill 1995 also requires the Commonwealth to accept State and Territory documents for purposes such as the issuing of passports, with subclause 25(2) making acceptance obligatory rather than a matter of favour.

6.93 Some witnesses sought a more positive commitment from the legislation, such as the development of a national register. This, it was suggested, would provide certificates to re-assigned persons and others, and would impose national recognition of the documents provided:

6.94 Transgender couples are difficult to define. If both parties are re-assigned, or one is re-assigned and one is of his/her birth gender, and they do not form a same-sex couple, they may be considered for various purposes as an ordinary de facto heterosexual couple. Legal recognition of re-assigned people will only ratify this situation, but any change to marriage laws permitting marriage by re-assigned persons could make the couple a married heterosexual couple with all the protections this affords.

6.95 The situation with respect to other transgender persons has been somewhat more tenuous. A form of legal recognition and administrative recognition is possible for all couples. The main barriers have been the objections by various agencies and organisations based on the supposed transitory nature of some identities; the supposed administrative costs involved; the loss to public revenue; the possibility of people establishing fraudulent identities; and the unacceptability of rights for transgendered persons.

6.96 Some of these problems have been overcome by changing Clause 107 (new clause 17) to include transgender couples, at Recommendation 5 above.

6.97 The Committee believes that the administrative and status problems experienced by transgendered persons are extensive, and have been considered in detail in submissions to the Committee. [135] Many of the problems relating to status and formal identity could be overcome by agreement being reached between the States/Territories and the Commonwealth on the most effective way of recognising all transgender people for a range of purposes. This would help establish a standard legal status for transgender people, [136] regardless of re-assignment. The Committee also believes that nationwide policies should also be able to develop guidelines concerning additional changes to documentation.

6.98 The Committee also acknowledges the problems identified by witnesses concerning the use of documentation to obtain services such as a marriage licence.

6.99 Insofar as people seek a recognition of relationships for other purposes, marriage or formal acknowledgment may be irrelevant, as was suggested by the Gay and Lesbian Rights Lobby, [137] but legal recognition is important. The concerns which a number of people expressed relate primarily to matters which are covered by State laws, such as next of kin status and intestacy. [138] The laws of next of kin also are important in areas such as transplants, organ and other donations, medical decisions, including to terminate or continue life, and autopsy decisions and funeral arrangements. These issues are controlled by States and Territories, which would need to determine if any Commonwealth system of legal recognition would also be acceptable in respect of the above areas.

6.100 A number of witnesses also expressed some concern about other issues related to partnerships and family life, including parenting, adoption, and access to IVF programs, [139] all of which are dealt with under State law, and issues such as 'custody', child support, and access to the Family Court, some of which issues can be dealt with through State legislation and some through Commonwealth legislation. [140]

6.101 In de facto heterosexual relationships, child custody and support were previously dealt with by State courts, although States may also have such matters dealt with now by the Commonwealth Family Court. Aspects of Family Court matters can also be dealt with by State magistrates courts. There is no reason why all matters relating to Family Court issues cannot be dealt with by that court, regardless of the sexuality of persons, if the standing of the various parties is established. [141] One witness, noted, for example, that the 'other' parent of a lesbian couple with a child born within the relationship did not have any standing; this fact reflects the fairly rigid concepts of couples and of parents, [142] which could be softened by appropriate amendments to the Family Law Act 1975.

6.102 The potential for Commonwealth legislation to indirectly discriminate against people on grounds of their sexuality status was noted in various submissions. In particular, although various rights to services such as adoption and IVF were regulated by States, the Commonwealth only recognised biological and adoptive parents. [143] This could create problems in the area of child support and access -'even though the wording of a statute is not necessarily discriminatory, its implementation may be.' [144]

6.103 This suggests that any review process of Commonwealth legislation would need to take such factors into consideration, as a change in terminology could lead to a substantial increase in access to services, requiring an increase in funding.

6.104 The Committee has recommended above (at Recommendation 1 of this Chapter) that a working group be established to review Commonwealth legislation, including legislation relating to the above issues where applicable.

Access to Taxation and Superannuation Benefits

6.105 The major issues with respect to superannuation for non-heterosexual and transgender people are being accepted into superannuation or insurance schemes at rates which are not discriminatory, and being able to gain payments or superannuation benefits for the contributor, or the contributor's partner or another person or persons on the same terms as are available to heterosexual persons. [145]

6.106 In its current form, the Sexuality Discrimination Bill 1995 will not assist people whose insurance or superannuation scheme does not come under Commonwealth control. How broad this coverage is will depend partly on an interpretation of the legislation. It could be argued, for instance, that if employment in a state public sector was subject to the provisions of the legislation, all superannuation schemes operated by State governments for such employees may also be affected. Nonetheless, the provisions of some state and territory superannuation and other schemes may have to be amended to allow trustees to make payments. Similarly, the application of the provisions of the legislation to foreign corporations (Clause 10(a)) and to 'trading and financial corporation[s] formed within the limits of the Commonwealth' (Clause 10(b)) may affect a wide range of operations of such bodies.

6.107 The legislation does facilitate, where required, access to superannuation and insurance, providing that various objective criteria are met, since it prohibits discrimination on the grounds of data which are not statistical or objective. [146] However, given that there have previously been complaints about the nature of some data used in assessing eligibility or the terms on which insurance or superannuation is offered, the Committee has made recommendations amending the nature of such data and the provision of such data to an individual affected by a decision. [147]

6.108 Insofar as State anti-discrimination legislation may also provide access to such benefits, the Commonwealth legislation may be superfluous, or it may be seen as increasing access to various schemes. As has been noted by many witnesses, care must be taken in considering these criteria to ensure that they are objective and that they are applied appropriately. [148] There is also the possibility of differences of opinion regarding the use of data, and some organisations may seek to limit access to benefits through resisting changes to definitions of 'spouse' or 'partner' or other potential beneficiaries.

6.109 The use of the term 'associate' may be of considerable importance in this as in other contexts. As noted in Chapter 4, ordinary matters of discrimination such as in employment, accommodation and so on may be limited through exemptions granted in respect of 'family' or 'associates'. Similarly, people who are family or associates may also claim to have been discriminated against because of their relationship to a person or because they are dependants (regardless of gender), or a person who is a dependant of a member of the first person's household (Clause 5). In the Sexuality Discrimination Bill 1995, the term 'associate' includes friends and a person who has a business relationship to an individual who is a transgendered person or has non-heterosexual status. The definition of de facto spouse is also gender neutral (Clause 5) If all other Commonwealth legislation - unless exempted - must be compatible with the provisions of the Sexuality Discrimination Bill 1995, similar broad terms may be used in superannuation legislation - this could also include friends and would reduce many of the problems which exist with respect to 'spouses' and 'dependents'.

6.110 The Sexuality Discrimination Bill 1995 prohibits discrimination by a person 'exercising a discretion about the payment of a superannuation benefit to or for a member of a superannuation fund' (Clause 10(5)) on the grounds of sexuality or transgender identity. However, the controversial decisions made on these issues have effectively been determined by the wording of relevant legislation which only refers to spouse or dependent child etc., and which excludes same sex partners and others from such definitions. Again, a variation to the relevant legislation would be required in order to ensure that all language is gender neutral; or else other amendments may be required, if a decision is made to not exclude some other groups from the benefits of untaxed superannuation: [149]

6.111 However, the legislation does not override State and Territory legislation which may affect distribution of an estate, even though payments to an estate from State schemes would be affected by taxation rulings which are a Commonwealth responsibility and even though some State bodies may be unable to discriminate in respect of payments to an individual or an estate. Those States which may not currently be flexible in their interpretation of superannuation and insurance beneficiaries [151] would be unable to appeal to Commonwealth superannuation legislation to override if all Commonwealth legislation is changed. [152]

6.112 However, the status of superannuation and insurance which is managed by a State or a purely state-based organisation is less clear. If superannuation is deemed to be an employment-related benefit, then superannuation schemes linked to State public sector employment should be bound by the provisions of the legislation. However, payments to people may continue to be restricted if the legislation affecting other State restricted superannuation schemes does not allow persons other than heterosexual spouses and dependent children linked to a heterosexual relationship to be acknowledged as beneficiaries.

6.113 Legislation similar to that set up by the ACT relating to probate and family relationships would have to be an integral part of change to allocation of death benefits (including payment of compensation for death or injury).

6.114 The Sexuality Discrimination Bill 1995 only explicitly extends any superannuation benefit to people who are in relationships similar to those of married and de facto heterosexual couples. In this sense, it seeks to grant similar benefits to people perceived to be in obviously similar circumstances. It does not explicitly extend assistance to transgender couples, although they may be covered by the term 'de facto' spouse which is defined as 'another person who is not married to the person but lives with the person on a bona fide domestic basis' (Clause 5). However, any support of increased access by same sex couples should perhaps also be matched by a support of people to equal access regardless of sexuality, gender status or 'marital' status:

6.115 This issue has been addressed in respect of transgender couples by the proposed amendments to Clause 17, previously 107. However, the Committee considers that there should be an examination of the practice of limiting the benefits payable in relation to people of any sexuality and gender status who have made superannuation contributions, but who were not in a relationship at the time of their death. This matter is considered further at Paragraphs 6.131 and 6.132 and Recommendation 8.

6.116 Evidence suggested people had experienced a range of problems in access to superannuation and insurance, including a lack of certainty with respect to the scientific or objective nature of the data on which decisions were based; and inappropriate or generalised assumptions being made about people on the basis of their sexuality as opposed to their lifestyle. [154]

6.117 Some objections to allowing people with unacceptable lifestyles access to benefits were based on two factors - that they had a limited life expectancy, so would not have made a high level of payment; and they may have had multiple partners and no real relationships. Thus payment to a 'dependant' or partner was seen as inappropriate in that such people had no real partners. [155] However, this type of exclusion would not be acceptable unless it was based on objective data which was applied without respect to sexuality or gender.

6.118 The Association of Superannuation Funds of Australia noted that it should be possible for change of gender status to be accommodated by a fund, in the sense of a fund being able to make appropriate adjustments to rates and benefits once a specific status was advised: [156]

6.119 Such adjustments would be based on the extent to which a person's gender had been changed by medical processes, a factor which might also affect the risks of various gender-linked disorders or likely incidence of disorders. [158]

6.120 Although the Association of Superannuation Funds of Australia expressed some concern about possible discrimination on the basis of a change of gender, it is unlikely that such a complaint would be substantiated. Discrimination, in the sense of charging different rates for coverage relative to gender is already permitted under the Sex Discrimination Act 1984 as well as under various insurance and superannuation schemes. If action was taken under the Sex Discrimination Act 1984 that a 'recognised' male to female transgender person was disadvantaged by having to pay higher rates, such a claim might be dismissed because the person was not disadvantaged relative to other women. The major difficulties that would arise would be if a male to female transgender person who had not undertaken any medical or surgical treatment would be asked to pay higher rates in order to provide for an expected longer life. If such an expectation of longevity would not be reasonable, considering that biologically the person was still male, discrimination may occur - but the use of the Sex Discrimination Act 1984 to resolve this problem may be inappropriate.

6.121 If people do not undertake any medical or surgical process to become transgender, their situation with respect to superannuation status may remain the same as that prior to change of status. The factors that will remain relevant are gender, age, health and lifestyle. However, given that the numbers of such people are relatively very small, funds and contributors may need to come to some agreement which acknowledges the change and the implications of this. In addition, any change to existing superannuation legislation may assist funds in making such agreements. A witness representing the Association of Superannuation Funds of Australia advised the Committee that the Superannuation Industry (Supervision) Act (SIS) 'prohibits any reduction in accrued benefits without the member's agreement'. [159] Superannuation funds may seek an exemption from the legislation if the adjustments required cannot be made although the contributor may still benefit.

Payment of Benefits

6.122 Superannuation is provided in a number of different forms - a lump sum plus pension; a pension payable to a partner; payment of various benefits to a surviving partner on the death of the contributor. Different schemes are also in operation and some of these require different contribution rates according to gender. [160]

6.123 The major legislation affecting payment of superannuation includes the Taxation Act 1946 which affects the rate of taxation charged on any superannuation contribution or payment and the specific superannuation legislation such as the Superannuation Industry (Supervision) Act 1993. The major problem for superannuation companies regarding payment of benefits is that, unless they are given an exemption, or the superannuation legislation is amended, they will be in breach of their act or of the anti-discrimination legislation:

6.124 The major problems experienced by all parties who are not 'dependants' of the contributor is that they must demonstrate some form of dependency in order to receive certain forms of payment or to receive certain level of favourable tax treatment. Heterosexual de facto and married persons are automatically assumed to have been dependent, even if there is no financial interdependence or dependence. [162] As same sex partners are not classified as spouses [163] in superannuation legislation they must currently be able to demonstrate that they were financially dependent on the deceased contributor. A case concerning an unsuccessful application for death benefits by the survivor of a same sex relationship, demonstrating inter-dependency and some dependency, however, concluded in 1995 that changes to the superannuation legislation of 1992 did not make the survivor eligible. [164]

6.125 The limited range of persons considered to come into the category of being dependent rules out a range of other people who may have had some relationship with married or single persons, regardless of their sexuality. [165]

6.126 The ACTU noted that the situation with respect to payment of benefits was discriminatory, and believed that superannuation should more clearly be seen as a work-related issue:

6.127 The ACTU also detailed several areas where discrimination occurred including failure to pay pensions, death or disability benefits and failure to recognise a dependency claim of a child of a lesbian or gay relationship. [167]

6.128 Changes to the Income Tax Assessment Act 1936 would also be required even if superannuation funds adopted broader categories of 'dependents'. Unless the taxation laws accept similar categories, or were more flexible about the interpretation of 'dependency', payments may be subject to tax regardless of whether the payment is made to an individual or to the legal personal representative of the deceased person. [168]

6.129 The inequitable basis of payments has been studied at some length in the report of the Senate Select Committee on Superannuation, Super and Broken Work Patterns (1995). At November 1997 no government response to this report had been received.

6.130 The Sexuality Discrimination Bill 1995 's provisions require appropriate changes to all Commonwealth legislation unless an exemption is obtained. The effect of any changes would be amendment of the various superannuation Acts and taxation Acts in order to make the provisions regarding couples consistent:

6.131 However, this would not change the situation with respect to single people or transgender couples (unless transgender couples are covered through new Clause 17 (3)). Clause 10(5) of the Sexuality Discrimination Bill 1995 only prohibits discrimination in respect of sexuality or gender status, not discrimination in respect of status as a 'single' person, a non-dependent person or as a member of a couple which is neither heterosexual nor homosexual. Those who do not believe they would be effectively covered by the provisions relating to 'genuine domestic basis' may believe they are being discriminated against on the basis of their 'non-couple' status or on the basis that their relationship, while supportive, is defined out of various benefits.

6.132 Thus, to be fully effective, superannuation and taxation legislation would need to address issue of dependency as well, and consider payments to nominated persons. A more appropriate solution would be to impose a similar taxation rate on all superannuation paid, regardless of the dependency of the recipient. Again, this would not avoid any specific problems that may occur with a challenge to an estate, if legislation does not exist prohibiting discrimination in settlement of estate solely on a person's sexuality or gender status.

Recommendation 7

That, in conjunction with new Clause 17, all Commonwealth superannuation legislation, and any related legislation, directly or indirectly affecting payment to people on the grounds of their sexuality or their gender status, be reviewed and amended.

Recommendation 8

That, in light of its previous work - Super and Broken Work Patterns (1995) - the Senate Select Committee on Superannuation be asked to consider and report further on any barriers to superannuation contributors being able to nominate a specific beneficiary or beneficiaries of lump sums, pensions or other payments. In particular, the Committee is asked to examine the situation of persons who, whether or not previously married or in a de facto relationship (including a same sex or transgender relationship) are single at the time of death.

6.133 Other State and Territory legislation would be required to establish certain rights to property or assets which could make appropriate provision for those members of a person's household or 'family'. [170]

6.134 There are relatively few additional taxation benefits that would be accessible to people on the basis of their being deemed to be a couple. Of these, the most important is probably the dependent spouse rebate. [171] This was not perceived as a major gain on the grounds that many same sex couples were both employed or were not in financially dependent relationships. [172]

6.135 According to the ACTU, organisations representing workers had an obligation to protect the rights of all members. However the union recognised that there were some limitations to its role and that, in spite of ILO 111, there were many sexuality related issues which they could not deal with effectively:

6.136 The areas where the ACTU believed people were most discriminated against included those referred to by many other witnesses: superannuation payments; various forms of leave (which are sometimes covered by federal awards and sometimes by state legislation); harassment at work; [174] and legislation which provided exemptions to employers in several fields. [175]

6.137 The Commonwealth Industrial Relations Act 1988 did address the issue of discrimination on the basis of sexuality or sexual preference, requiring that there be:

6.138 The Workplace Relations Act 1996 contains these provisions. [177] However, as with the Industrial Relations Act 1988, the Workplace Relations Act only allows individual complaints about termination of employment on grounds of sexual preference. It does not cover offers of employment or promotion or training opportunities. [178] The Queensland branch of the ACTU welcomed the provisions in the Sexuality Discrimination Bill 1995 which would refer 'a discriminatory act under an award to the Australian Industrial Relations Commission' on the grounds that:

6.139 However, people on State based awards, with no access to the Commonwealth Industrial Relations Commission (AIRC) must have their case referred to the State industrial relations commission which assesses the case. [180] The existence of Commonwealth anti-discrimination legislation will not affect such State legislation unless the employment is within the public sector. [181]

6.140 A range of other benefits including various forms of leave and workers compensation may also not be available to people who are working under State awards and who are excluded because of definitions such as 'spouse' which presuppose or specify an opposite sex couple. [182]

6.141 There has been a gradual change in the attitudes and practices of various government bodies reflecting a greater awareness of different personal relationships. Most of the changes that have occurred have been a direct result of complaints made, particularly with respect to changes in the Australian Defence Force (ADF). [183] In 1992, the Australian Defence Force changed its rules regarding homosexual members of the forces. [184] Previously obliged to leave the services, [185] homosexuals not only gained the right to be accepted and not to be dismissed on the basis of sexuality alone, but also gained access to certain of the benefits available to other ADF members although certainly not to all. [186]

6.142 The Public Service Act 1922 [187]provides that there be no discrimination with respect to some aspects of employment such as appointments, promotions, and transfers. Other issues including the payment of public service allowances, [188] the extension of some benefits to same sex couples; and the acceptance of formal transgender change have been resolved through various agreements rather than through the legislation itself. [189] These changes occurred after some complaints had been made in respect of variations in the conditions of employment and also as a result of ILO 111.

6.143 Some benefits for APS staff have been extended to same sex relationships as well as de facto relationships, with some distinction between APS staff and persons in other Commonwealth employment such as the ADF. [190] The reasons for both increasing and limiting access are not entirely clear, although in part they seem to be related to cost [191] rather than an acceptance or otherwise of social changes.

6.144 Until 1992 a range of benefits was available to married and de facto heterosexual persons only. Although these were extended to same sex relationships, directly or implicitly, the development of individual agency agreements and eventually individual workplace agreements may change the contents of 'general' terms and conditions. [192] Uniformity in the sense of ensuring that access to employment and employment related conditions (with the possible exception of superannuation) is consistent may only be possible through legislation which overrides other provisions.

6.145 The Committee was also required, inter alia, to assess the need 'to protect Australian citizens against discrimination...' [193] While all states have an obligation to legislate for the welfare of their citizens, [194] they do not thereby exclude others from coverage, and covenants such as the ICCPR discourage discrimination on the basis of race and national origin.

6.146 The issue of rights applying equally to all residents rather than citizens was not discussed in detail. Apart from areas such as immigration, where a country may wish to make distinctions in order to limit acceptance of some groups of people or individuals and some instances of businesses with an external base, [195] anti-discrimination laws apply to all persons resident in the country, regardless of whether they are citizens, permanently resident, or visitors.

6.147 As noted above, sexuality in itself is not a reason for prohibiting immigration, and the more important factor is the citizenship status of one of the partners in a couple, and the acceptance of interdependency. [196]

6.148 Sexuality is also an accepted ground of refugee status if it can be demonstrated that a person's sexuality would cause them to be discriminated against in their own country. [197]

6.149 International cases also demonstrated that sexuality-based intimidation was recognised as a ground for refugee status, a fact which should help support sexuality as an acceptable ground for granting such status in Australia. [199]

6.150 Some witnesses suggested that it appeared illogical and inconsistent to provide benefits to people who were migrating or seeking refuge in Australia and not allow such factors to become part of Australian legislation benefiting Australian citizens. It was also suggested that, while the Migration Regulations could accommodate some non-heterosexual relationships, other regulations might be discriminating against people on the basis of their HIV status (and hence, presumably, on the ground of being homosexual). It was suggested that the basis of access to a country should not be the status of one's health but the capacity to support oneself regardless of health status, or presumed sexuality status:

6.151 Other problems affecting those born overseas and living in Australia, or people seeking to migrate to Australia, concerned the difficulties in obtaining appropriate documentation for transgender people. [201] In particular, transgender people from overseas may experience difficulty in obtaining appropriate documentation either in order to apply to come to Australia; to notify a change of gender status in Australia; and in order to obtain a passport, if they acquired Australian citizenship. [202] Special provisions may need to be made to meet these problems if any system of uniform documentation is established.

SENATOR JIM MCKIERNAN

Chair

References Committee

Footnotes:

[1] See Chapter 3.

[2] Evidence, Equal Opportunity Commission Victoria, p. 227.

Submission, Ms Rosemary Hunter, noted that national sexuality legislation would complement the provisions in the Disability Discrimination Act 1992 which were of special assistance to those believed likely to have HIV/AIDS, Vol. 6, p. 1265.

[3] Submission, Ms Rosemary Hunter, Vol. 6, p. 1265.

Submission, Gender Council of Australia (W.A) Inc, Vol. 6, p. 1273.

[4] See below, Paragraphs 6.145-6.151.

[5] Submission No., Gender Council of Australia (W.A.) Inc, Vol. 6, p. 1276.

[6] Evidence, ALSO Foundation, p. 325.

Submission, Australian Feminist Law Foundation Inc, Vol. 6, p. 1321.

[7] See below, Paragraph 6.25. Where State public sector provisions are more extensive, these would apply.

[8] Submission, Gay and Lesbian Rights Lobby, 'Whilst discrimination and violence against lesbians and gay men continues at its current unacceptably high level, with often no form of legal redress, Australia is not fulfilling either its international obligations or its obligations to its own citizens. Every Australian should enjoy the same rights to fair and equitable treatment irrespective of their sexuality and it is the responsibility of the Federal Government to ensure that this occurs.', Vol. 5, p. 1017.

Submission, Ms A Chapman, Vol. 4, pp. 678-679.

[9] Submission, Associate Professor Tahmindjis, Vol. 4, p. 687.

See also below, Paragraph 6.18.

[10] Submission, Associate Professor Tahmindjis, Vol. 4, p. 688.

See Chapter 3, Paragraphs 3.3-3.5. One of the most controversial areas that would have to be addressed under equality provisions is that of age of consent - see, for instance, Submission, Ms Frances Sutherland, Vol. 4, p. 711.

[11] Evidence, Ms Millbank, p. 140.

See also Submission, Kingsford Legal Centre, Vol. 5, pp. 924-925.

[12] Submission, Ms A. Thompson and Ms S. Connor, 'Current antidiscrimination legislation is obfuscated by varying quality and application...Discriminatory provisions are still contained in some Commonwealth Acts.' Vol. 5, p. 929.

[13] Evidence, Dr Finlay, which notes the problems arising from transgender changes of status, p. 391.

[14] Evidence, Queensland Anti Discrimination Board, p. 682.

[15] Submission, Kingsford Legal Centre, Vol. 5, p. 924.

[16] Evidence, Queensland Anti Discrimination Commission, p. 684.

[17] Evidence, Queensland Anti Discrimination Commission, p. 687.

[18] Evidence, Queensland Anti Discrimination Commission, p. 685.

[19] Evidence, Tasmanian Gay and Lesbian Rights Group, which noted that general anti-discrimination legislation could also address issues such as age discrimination, p. 388.

[20] See Chapter 5, Paragraphs 5.62 - 5.63.

[21] Evidence, Anti Discrimination Board of New South Wales, p. 114.

[22] See Chapter 5, Paragraphs 5.13 - 5.14.

[23] Submission, Ms J. Millbank, Vol. 1, p. 125.

Submission, Women's International League for Peace and Freedom, Australian Section, Vol. 8, p. 1778.

[24] Submission, Ms Rosemary Hunter, Vol. 6, p. 1266.

[25] Submission, Gay and Lesbian Rights Lobby, Vol. 5, p. 1022.

[26] Evidence, Ms J Millbank, p. 139. Witnesses also stated that some people were currently discriminated against in access to Austudy, in that having to leave home because of sexuality or transgender issues was not readily accepted as a ground for gaining this benefit: see Submission, Queer Sexuality Collective, University of Queensland, Vol. 11, pp. 2481-2482. The issue was also discussed in debate on the Student and Youth Assistance (Sex Discrimination Amendment) Bill 1997, Hansard 30 October 1997, pp. 8179, 8184 and 8186.

Evidence, Queensland Association of Gay and Lesbian Rights, p. 734.

[27] State laws in particular were seen as discriminatory not only because of limitations within anti-discrimination laws, or lack of anti-discrimination legislation, but also because of the provisions of other legislation. In particular, witnesses raised a number of issues which affected them in their daily life, such as next of kin arrangements; intestacy arrangements; lack of access to certain courts; superannuation and related problems; limited if any access to favourable insurance and other arrangements.

See Chapters 2 and 4.

Submission, Gay and Lesbian Rights Lobby, Vol. 5, pp. 1019-1020.

[28] Evidence, Equal Opportunity Commission Victoria, p. 225.

Evidence, Queensland AIDS Council, p. 711.

[29] Such offensive terms, for some people, included 'lawful sexual activity' - See Chapter 1, Paragraphs 1.30-1.35.

[30] Submission, Australian Council of Trade Unions, Queensland Branch, Vol. 11, p. 2451.

Submission, Illawarra Legal Centre Inc., where reference is made to the need to change local government laws; however, this has been achieved to some degree in some State legislation where discrimination is prohibited with respect to membership of local government; it is not clear if local government services are provided in a discriminatory fashion, Vol. 5, p. 916.

[31] Evidence, Gay and Lesbian Rights Lobby, p. 185 - this is in reference to Clause 107 of the bill dealing with same sex couples.

[32] The reference to State or Territory laws is only to laws dealing with 'discrimination on the ground of sexuality or transgender identity' (Clause 7(1)).

[33] Submission, Law Institute of Victoria, Administrative Law Section, which recommends that casual work be specifically listed, Vol. 11, p. 2858. The definition of 'employment' includes part-time and temporary employment, but does not specifically mention casual employment.

[34] Issues of 'inconsistency' between State and Commonwealth anti-discrimination legislation are considered in G. McCarry, 'Landmines Among the Landmarks: Constitutional Aspects of Anti-Discrimination Laws', Australian Law Journal, 63: (1989) pp. 327-342.

[35] Any inconsistency between Commonwealth and State/Territory law which would arise from the Commonwealth intending to cover the field may have been avoided by the express statement in the Sexuality Discrimination Bill 1995 that the Act is not intended to 'exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.' (Clause 7). See Viskauskas v Niland (1983) 153 CLR 280.

[36] Evidence, Mr Sid Spindler, p. 242.

Exclusion from various services such as IVF may be challenged through other anti-discrimination provisions of legislation, such as 'marital status' - see:

Evidence, Equal Opportunity Commission Victoria, p. 230.

[37] See, G. McCarry, on consideration of the need for equal operation throughout the States of any legislation which purports to implement the provisions of an international covenant, op. cit., p. 332.

[38] Although Tasmanian law has now changed, similar situations may be avoided either by having a transition phase or by stating that while laws similar to those of the Commonwealth can operate concurrently, any contradictory or less beneficial provisions are overridden. There is also a need to ensure that subsequent discriminatory State anti-discrimination legislation can be covered. For the basis of the current approach in the legislation, see information provided by:

Evidence, Mr Sid Spindler, which notes the political reasons for the relevant section of the bill, p. 187; Submission No. 46, Queensland Anti Discrimination Commission, which noted that the Queensland legislation exempted from coverage any action done in order to comply with another act. This prevented any action being taken in respect of the discriminatory provisions of legislation, a situation unlikely to be overcome in that there was not a sunset clause in operation; such provisions are not unusual, Vol. 2, p. 238.

Evidence, Gay Men and Lesbians Against Discrimination, p. 339.

[39] Submission, Gay and Lesbian Counselling Service of WA Inc, Vol. 1, pp. 147-148.

[40] Example, Submission, Australian Catholic Bishops' Conference, Vol. 4, p. 720.

See Chapter 5, Paragraph 5.189.

[41] Submission, Australian Council of Trade Unions, Queensland Branch, Vol. 11, p. 2441.

[42] See below, Paragraph 6.44.

[43] Evidence, Anti Discrimination Board of New South Wales, p. 107.

Submission, Kingsford Legal Centre, Vol. 5, p. 925.

[44] Submission, Kingsford Legal Centre, Vol. 5, p. 925.

[45] This exemption was noted by the Anti Discrimination Board of New South Wales which believed it was too broad - see Chapter 4, Paragraphs 4.178-4.180.

[46] Evidence, Mr Sid Spindler, p. 241.

[47] Evidence, New South Wales Council for Civil Liberties, p. 156.

[48] Evidence, Ms K. Walker, pp. 276-277.

[49] Evidence, Gay and Lesbian Rights Lobby, p. 185.

[50] Evidence, Metropolitan Community Church, p. 185.

Submission, The Religious Society of Friends (Quakers) in Australia Inc, Vol. 11, p. 2511.

[51] See Chapter 3, Paragraphs 3.81-3.83.

[52] See Chapter 3, Paragraph 3.83.

[53] Submission, Ms Chris Ronalds, Vol. 2, p. 302.

[54] As noted in Paragraph 6.34, this subclause is affected by subclause 29 (3).

[55] Submission, Department of Social Security, Vol. 1, p. 63.

[56] Submission, Department of Social Security, Vol. 1, p. 64.

[57] Most benefits granted under Social Security legislation would provide a lower payment to a couple than to two singles, the only exception being in respect of Rent Assistance - see, Chapter 2, Paragraph 2.60 and footnote 125.

[58] Evidence, Department of Social Security, p.36.

[59] See below, Paragraphs 6.68-6.69.

[60] Submission, Gender Council of Australia (W.A.) Inc, Vol. 6, p. 1274.

[61] See below, Paragraphs 6.58, 6.62.

[62] See Chapter 4, Paragraphs 4.10, 4.48, 4.59.

[63] Payments for a range of government departments are now made through an agency known as Centre Link.

[64] See below, Paragraphs 6.110, 6.123.

[65] Sexuality Discrimination Bill 1995, Subclause 107(1)

[66] Submission, Department of Social Security, Vol. 12, p. 2681. Amendments would be required if the regulations made under the Act did not protect this or other legislation - See Sexuality Discrimination Bill 1995, Clause 107.

[67] See Chapter 5, Paragraph 5.114.

See also Submission, Feminist Lawyers, Vol. 8, p. 1643.

[68] See above, especially Chapter 2, Paragraphs 2.70-2.72.

[69] The 'qualification period' for achieving de facto status varies.

[70] See Chapter 4, Paragraph 4.218. See also Chapter 2, Paragraphs 2.7, 2.10, 2.64, 2.67.

[71] Submission, Feminist Lawyers, Vol. 8, p. 1643.

[72] See Chapter 2, Paragraphs 2.11, 2.52.

[73] See Chapter 2, Paragraph 2.11.

Submission, Ms J Aspen, Vol. 1, pp. 45-46.

[74] See Chapters 2 and 4 and also

Submission, Feminist Lawyers, 'More specifically, the de facto regime contained in the Bill discriminates against lesbians...Like most women, most lesbians are poorer than most men (including gay men). Lesbians are much more likely to have children than [are] gay men and hence to be receiving benefits such as the single parent's pension which would be affected by the de facto regime.' Vol. 8, p. 1643.

[75] Evidence, Ms J Millbank, p. 138.

[76] Evidence, Ms J Millbank, p. 139.

Submission, Gay and Lesbian Rights Lobby, other objections to automatic acknowledgment or registration of relationships included the fact that some people have 'significant others', but are not in a relationship; thus, Section 107 would not help them to make any provision for a significant other, Vol. 5 p. 1037; and the fact that some people were not restricted to one major relationship, and S 107 did not accommodate this. In its current form S 107 only applies to the recognition of relationships for limited purposes. More detailed legislation would be required to provide guaranteed access for a nominated person or persons to an estate including superannuation.

[77] Evidence, Ms J Millbank, p. 141.

[78] Submission, Australian Feminist Law Foundation Inc, Vol. 6, pp. 1322-1323.

See also Submission, Gay and Lesbian Rights Lobby, Vol. 5, p. 1037 and

Submission, Ms A Chapman, Vol. 4, p. 684.

[79] See also Submission, Women's International League for Peace and Freedom, Australian Section, Vol. 8, pp. 1778-1779.

[80] Evidence, Ms K Walker, pp. 283-285.

[81] Evidence, HREOC, p. 123.

[82] See above, Paragraph 6.56.

[83] See, for example, Evidence, Gay and Lesbian Rights Lobby, pp. 184-185.

[84] See, for example, Submission, Mr A. Bell, Vol. 15, p. 3555.

[85] Evidence, HREOC - the Commission referred also to 'bona fide domestic relationships', p. 123.

Evidence, North Melbourne Legal Service/Federation of Community Legal Centres, p. 332.

[86] See above, Paragraphs 6.45-6.46, 6.49-6.51.

See also Submission, Vol. 12, p. 2681. Information provided by the Department of Social Security on the basis for differential rates in pensions relative to marital status. There is no acknowledgment of multiple partners either insofar as this suggests short-term relationships or several simultaneous relationships. Although some evidence supported the belief that some homosexual and bisexual people had several partners, as well as, or to the exclusion of, a more stable relationship, there is no necessary gap in legislative provisions in respect of these people - if there is any financial dependence, this would be resolved at the personal level (as it would be for heterosexual people) or through some formal provision in case of death. If provision, including through a will was challenged, the short length of a relationship might exclude the person from provision, much as would be the case in respect of a heterosexual de facto relationship of a similar length.

[87] Submission, Women's International League for Peace and Freedom, Australian Section, Vol. 8, pp. 1778-1779.

[88] See below, Paragraphs 6.124-6.128 and

Evidence, Australian Council of Trade Unions, pp. 311-312.

[89] Evidence, Australian Council of Trade Unions, pp. 312-313.

[90] See Chapters 2 and 4.

[91] Evidence, Commonwealth Attorney General's Department, p. 15.

[92] Evidence, HREOC, p. 123.

[93] Evidence, HREOC; that is, transgender people need protection for their partnerships as well as for their status as individuals, p.123.

[94] Submission, Women's International League for Peace and Freedom, Australian Section, Vol. 8, p. 1778.

Evidence, Ms K. Walker '[people] thought that they were getting full de facto recognition from this clause and they are not.' p.283.

[95] Evidence, New South Wales Council for Civil Liberties, p. 156.

[96] Submission, Ms A. Chapman, 'Such legal recognition could take many forms and combinations of federal and/or state legislative packages.' Vol. 4, p. 684.

[97] Evidence, Australian Defence Force and Department of Defence, pp. 18-19.

[98] See below, Paragraphs 6.99-6.103.

[99] Evidence, Department of Immigration and Multicultural Affairs, p. 17.

Submission, Department of Immigration and Multicultural Affairs, 'the interdependency visa makes no mention of a sexual relationship and a broader group of applicants, not only same-sex couples, may also be eligible.' Vol. 8, p. 1702.

Submission No. 86, COAL, Vol. 3, pp. 615-615.

[100] Evidence, Department of Social Security, pp. 33, 35.

[101] Submission, Department of Immigration and Multicultural Affairs, Vol. 8, pp. 1703-1704.

[102] Submission, Mr W Morgan, Vol. 7, p. 1380.

[103] Submission, Gender Council of Australia (W.A.) Inc. (emphasis added), Vol. 6, p. 1272.

[104] There are different opinions within the transgender community on this issue. Some believe that only those who have surgery are genuine; some accept all stages of status:

Submission, Gender Council of Australia (W.A.) Inc., 'Each phase deserves appropriate recognition in a caring society', Vol. 6, p. 1271.

For those not themselves transgender, but wanting some form of 'certainty', there was considerable emphasis on the transient nature of other transgenders - a view not shared by some transgender witnesses.

[105] Submission, Gender Council of Australia (W.A.) Inc, Vol. 6, pp. 1271-1272.

[106] Submission, Ms Abbie Hughes, Vol. 6, p. 1286.

[107] Submission, Dr Finlay, Vol. 8, p. 1785.

[108] Submission, Dr Finlay, Vol. 8, p. 1783.

[109] Submission, Dr Finlay, Vol. 8, p. 1785.

[110] Evidence, Anti Discrimination Board of New South Wales, p. 108.

Evidence, Civil Liberties Council of New South Wales: 'I think it is really important to recognise that most people who are going through this process are not doing it for economic gain or for some kind of notoriety. They find themselves in a circumstance and a predicament that most of us just cannot even begin to imagine. I think the legislation must try to keep a level head about this. I do not think you need worry about situations where people are changing their gender on Tuesday and then again on Thursday. I think it is much more serious than that.' p. 160.

[111] Evidence, Australian Defence Force, p. 19.

[112] Evidence, Australian Defence Force, pp. 18-19.

Submission, Department of Defence, Vol. 8, pp. 1794-1795.

[113] Evidence, Australian Defence Force, pp 18-19.

[114] Submission, Australian Defence Force; for example, as at August 1996, the United Kingdom did not permit homosexuals to serve in the defence forces; and in Germany, defence force staff identified as homosexual have limited career opportunities. Whatever the arrangements with respect to Australian ADF members in Australia, it appears that some categories of people would be unable to take advantage of career opportunities because of the requirements of other countries, Vol. 9 pp. 2172, 2173.

[115] Submission, Department of Foreign Affairs and Trade, Vol. 13, p. 2999.

[116] See Chapter 3, Paragraphs 3.24-3.25, 3.71.

[117] Submission, HREOC, Vol. 5, p. 150.

[118] See especially Submission, Department of Foreign Affairs and Trade, Vol. 13, p. 2992.

Submission, Department of Foreign Affairs and Trade, pp. Vol. 13, 2998-2999.

[119] Submission, Gender Council of Australia (W.A.) Inc, Vol. 6, p. 1276.

[120] Submission, Office of the Registrar General of the Northern Territory, Vol. 15, p. 3592.

[121] Submission, Dr Finlay, 'over a period of time, the same individual may assume, chameleon-like, sometimes a male, sometimes a female identity.', Vol. 8, p. 1785.

[122] Submission, Office of the Registrar General of the Northern Territory, Vol. 15, p. 3592.

[123] See Paragraphs 6.88 - 6.98 and Recommendation 6 of this Chapter.

[124] Submission, Ms Abbie Hughes, Vol. 6, pp. 1288-1289.

[125] See Chapter 3, Paragraphs 3.68-3.71, 3.81.

[126] Submission, Ms Abbie Hughes, Vol. 6, pp. 1290-1291.

Privacy issues, in the context of the United Nations' Human Rights Committee decision regarding privacy and homosexuality, are considered at Chapter 3, Paragraphs 3.60-3.62.

[127] See for example Robert Wintemute, 'Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes', Modern Law Review 60:3 (May 1997) pp. 339-344.

[128] Sexuality Discrimination Bill 1995, Clauses 23-25. In fact, the directions in these clauses may be difficult to enforce, given that they also refer to documents provided by State and Territory authorities such as driving licences. Subclause 25(2) provides that those responsible for issuing documents such as driving licences must accept the sex of a person as stated in a State-issued certificate.

[129] Submission, Anti Discrimination Board of New South Wales, Vol. 8, p. 1820.

[130] Evidence, South Australian Equal Opportunity Commission, p. 451.

Evidence, Dr Finlay, pp. 390-391.

[131] Submission, Attorney General's Department, Victoria. Victoria does not change details on birth certificates where those details were correct at the time of registration; it will not issue a new birth certificate because of a re-assignment; names may be changed, however, and a new birth certificate can be provided for a person born in Victoria showing a change of name, but not of gender. Vol. 13, pp. 3184-3185.

Submission, Office of the Registrar-General (Northern Territory), Vol. 15, p. 3591. The Northern Territory, through the Births Deaths and Marriages Registration Amendment Act 1996, which came into force on 1 June 1997, will change a birth record if a person has had sexual re-assignment surgery. Other potential problems arise in minor areas, such as the age at which one may receive an age pension, but this will become irrelevant in the longer term.

Evidence, Dr Finlay, outlined problems regarding the possible use of sex-change certificates for the purposes of obtaining a marriage licence, pp. 390-391.

[132] Evidence, Department of Foreign Affairs and Trade, p. 820.

Submission, Department of Foreign Affairs and Trade, Vol. 13, pp. 2992-2993.

[133] Submission, Department of Foreign Affairs and Trade, Vol. 13, p. 2999.

Evidence, Department of Foreign Affairs and Trade, pp. 819-820.

[134] Submission, New South Wales Council for Civil Liberties, Vol. 7, p. 1459.

Evidence, Anti Discrimination Board of New South Wales, which noted that information to be obtained regarding status - whether post-operative or otherwise - was not seen as an insuperable problem: 'In relation to the question of identity, I think it should be in exactly the same way as, say, for the recognition of same sex partnerships in things like the migration . I do not think there is any difficulty, if it is genuinely perceived as an issue, in finding out from external sources whether the person concerned has genuinely sought to identify as, and live as, a member of the other sex', p.113.

[135] Submission, Ms S C Else, Vol. 2, pp. 340-341.

[136] See Chapter 5, Paragraphs 5.82-5.83.

[137] See above, Paragraph 6.41.

[138] See Chapter 2, Paragraphs 2.66-2.68,

See Chapter 4, Paragraphs 4.55-4.62.

[139] See Chapter 2, Paragraph 2.68.

Submission, Ms Frances Sutherland, Vol. 8, p. 710.

[140] Submission, Ms J Millbank, Vol. 1, pp. 115, 116-118.

[141] Submission, Gay and Lesbian Welfare Association, Vol. 11, p. 2467.

[142] Submission, Ms J. Millbank, Vol. 1, pp. 117-118, 125-145.

[143] Submission, Department of Immigration and Multicultural Affairs, where it is stated that the 'responsible parent' definition (required in cases of children acquiring Australian citizenship) is based on the Family Law Act 1975, Vol. 8, p. 1704.

[144] Submission, Ms J. Millbank, Vol. 1, p. 117.

[145] See Chapter 4, Paragraphs 4.149-4.156.

Submission, HREOC, Vol. 5, pp. 1577-1579.

[146] See, Chapter 4, Paragraphs 4.152- 4.156.

[147] See Chapter 4, Recommendation 7.

[148] See Chapter 4, Paragraph 4.156.

Evidence, Association of Superannuation Funds of Australia, The representative of this body noted that 'The Sex Discrimination Commissioner has stated her opposition to the use of sex based actuarial data because other crucial issues affecting longevity such as race or economic class are not used.' The main problems in relation to sex and transgender occur with some defined benefit funds, p. 148.

Evidence, Association of Superannuation Funds of Australia, which charge different rates for men and women based on the fact that women live longer and therefore would have to pay more to get the same benefit over a longer time period. Defined benefit funds include CSS but are being replaced by accumulation funds, p. 150.

Evidence, Association of Superannuation Funds of Australia, access to superannuation and insurance; schemes may also be limited for a number of reasons, including lifestyle, age, and health status. Thus people may need to pay higher rates or have specific provisions imposed - such as limited access to benefits - to overcome these factors, p. 148.

[149] Submission, Queensland Aids Council, Vol. 12, pp. 2872-2973.

[150] Submission, Law Institute of Victoria, Administrative Law Section, Vol. 12, p. 2859.

[151] See Chapter 4, Paragraphs 4.138-4.145.

[152] See Chapter 4, Paragraph 4.151.

Evidence, Anti Discrimination Board of New South Wales, p.118.

Submission, Queensland Aids Council, which refers to NSW Anti Discrimination legislation being overridden by the less favourable provisions of the Commonwealth Life Insurance Act 1945, Vol. 12, p. 2874.

[153] Submission, Ms J. Millbank, Vol. 1, p. 115.

[154] Evidence, Australian Transgender Support Association Inc., p. 790. One transgender person stated that she had lost all her superannuation because she had known she was transgender, but had not stated this. This appeared to be an inappropriate action on the part of the fund, as some recalculation of benefits relative to scientific data on change of gender effects could have been undertaken.

[155] Evidence, Dr Reece, p. 772.

[156] Submission, Association of Superannuation Funds of Australia, Vol. 8, p. 1856.

[157] Submission, Association of Superannuation Funds of Australia Limited, Vol. 8, p. 1856.

[158] See Chapter 4, Paragraph 4.150.

[159] Submission, Association of Superannuation Funds of Australia, Vol. 8, p. 1856.

[160] Evidence, Association of Superannuation Funds of Australia, p. 150.

[161] Evidence, Association of Superannuation Funds of Australia, p. 149.

[162] Evidence, Association of Superannuation Funds of Australia, pp. 146-147.

Evidence, Australian Council of Trade Unions (ACTU), p. 313.

Submission, ACTU, Vol. 8, p. 1666.

[163] Submission, Ms J Millbank, Vol. 1, p. 118.

Submission, Mr Ron Keamy, Vol. 4, p. 703.

[164] Submission, Mr Gregory Brown, Vol. 10, p. 2405-2406.

Submission, Homodefactos Association Inc, Vol. 10, p.2431.

[165] Evidence, Association of Superannuation Funds of Australia, p. 149: 'The definition usually is 'including a spouse or child of the member'. The other categories[brother, sister, father or mother] are generally not within that, unless there is a different definition of the word 'dependent'.

[166] Submission, Australian Council of Trade Unions (ACTU), Vol. 8, p. 1657.

[167] Submission, Australian Council of Trade Unions (ACTU) Vol. 8, pp. 1659-1660.

[168] Evidence, Association of Superannuation Funds of Australia, p. 147.

[169] Submission, Ms J Millbank, Vol. 1, p. 118.

Submission, Gay and Lesbian Rights Lobby, Vol. 5, pp. 1022, 1023-1024.

[170] Such legislation does exist, but the laws of family provision can affect the provisions made in wills and from intestate estates.

[171] This may also be paid out through the year in the form of a child care allowance and hence may be claimed by the primary carer of a child.

[172] Submission, Ms J Millbank, Vol. 1, p. 123.

[173] Submission, Association of Superannuation Funds of Australia, Vol. 8, p. 1854.

Submission, Autralian Council of Trade Unions (ACTU), Queensland Branch, referred to bisexual and transgender people as well as gays and lesbians, Vol. 11, p. 2437.

[174] Submission, Association of Superannuation Funds of Australia , Vol. 8, pp. 1854-1861.

[175] Particularly in education and services for children and young people -

See Chapter 4, Paragraphs 4.110-4.115, 4.203-4.208.

Submission, Australian Council of Trade Unions, Vol. 8, pp. 1670-1671.

[176] Submission, HREOC, Vol. 5, p. 1573.

[177] Workplace Relations Act 1996, Clause 170CK (2)(f) (Part VIA, Division 3).

[178] Submission, Ms A. Chapman, Vol. 4, p. 677.

[179] Submission, Australian Council of Trade Unions, Queensland Branch, Vol. 11, p. 2446. However, this process was seen as unnecessary according to one witness, since it did not reflect any historical inequity. It was recommended that any such discrimination in awards 'should simply be unlawful' - Submission, Ms Rosemary Hunter, Vol. 6, p. 1266.

[180] Submission., Australian Council of Trade Unions, Queensland Branch, Vol. 11, p. 2447.

Submission, Australian Council for Lesbian and Gay Rights(West Australian Branch) Vol. 11, pp. 2575-2576.

[181] Submission, Australian Council of Trade Unions, Queensland Branch, Vol. 11, pp. 2446-2447. Submission, Australian Council for Lesbian and Gay Rights(West Australian Branch), for information on industrial legislation in Western Australia, Vol. 11, pp. 2571-2573.

[182] Submission, Australian Council of Trade Unions, Queensland Branch, Vol. 11, pp. 2453, 2455.

[183] Submission, Dr M Seah, Vol. 2, pp. 323-324.

[184] Submission, HREOC, Vol. 5, p. 1559.

[185] Evidence, Australian Defence Force, p.18.

[186] See above, Paragraphs 6.78-6.79. However, in some of the submissions made to the Committee regarding discrimination in the APS or in the forces, claimants could not establish that action at a particular time was unlawful, although it may have been discriminatory.

[187] Submission, Australian Council of Trade Unions, Vol. 8, p. 1667, refers to other legislation with similar principles, such as the Health Legislation (Private Health Insurance Reform) Amendment Act 1995.

[188] It has been argued that benefits available to some public servants as a part of their employment have been denied to people on grounds of sexuality. However in some instances it appears that, although there may be instances of indirect discrimination (whereby people cannot qualify for a benefit because the law does not permit them to be married) some restrictions are primarily imposed on the grounds of marital status. Submission, Mr Roger Muller, Vol. 1, pp. 192-193, stated that he had been denied benefits while on an overseas posting because of his sexual preference, see also

Submission, Mr Roger Muller, Vol. 9, pp. 1961-1969, and Submission, HREOC, The decision of HREOC that discrimination had occurred was based on its understanding of ILO 111. The regulations under which DFAT worked required that a person be accompanied overseas by the relevant spouse. It is understood that this requirement - that the stable relationship exist at the time of the posting - is still retained. Thus, although there have been changes to the arrangements under which DFAT operates, and these specifically include same sex couples, the same proviso regarding relationships exists. A person could claim discrimination on grounds of sexuality if it was demonstrated that other persons in an other sex relationship did receive benefits in spite of not being partners at the time of posting. Vol. 5, p.1573.

[189] Submission, HREOC, Vol. 5, p. 1580.

[190] Evidence, p. 20, for example, the benefits available to Defence Force personnel (as distinct from staff of the Department of Defence).

Submission, Department of Defence, Vol. 8, pp. 1796-1797. While civilian members of the Department of Defence are entitled to the same benefits, members of the ADF are not. It would require legislative change such as that proposed at Clause 17 (previously 107) to override the current regulations which limit access to benefits by the ADF.

[191] Evidence, Department of Defence, pp 19, 20.

[192] Submission, Department of Industrial Relations, Vol. 12, pp. 2897B-C.

[193] Terms of reference (1), see Chapter 1, Paragraph 1.6.

[194] Evidence, Victorian Council for Civil Liberties, p. 801.

[195] Submission, Mr W. Morgan, 'The broad scope of the corporations power will support legislation governing the acts and activities of corporations...[and] would thus support legislation prohibiting all corporations from engaging in sexuality or transgender discrimination.' Vol. 7, p. 1377.

See Chapter 3, Paragraph 3.73 .

[196] Submission, Ms J. Millbank, Vol. 1, pp. 115-116.

Evidence, Department of Immigration and Multicultural Affairs, pp. 27-28.

[197] Submission, Ms J Millbank, Vol. 1, p. 116.

Evidence, Department of Immigration and Multicultural Affairs, pp. 30-31.

[198] Evidence, Ms K Walker, p. 287.

Submission, Ms K Walker, Vol. 9, p. 2161.

Submission, Ms Walker, Vol. 5, p. 952.

[199] Evidence, Ms K Walker, p. 287

Submission, Ms K Walker, Vol. 9, p. 2161.

[200] Evidence, Australian Bisexual Network, p. 680.

[201] Submission, Ms Abbie Hughes, Vol. 6, p. 1289.

[202] Evidence, Department of Immigration and Multicultural Affairs, p. 27.

Evidence, Department of Foreign Affairs and Trade, pp. 819-822, 832.