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:
- be a means of formally meeting Australia's international 'obligations'
and achieving international standing;
- provide a standard for Australia that would overcome less progressive
legislation; and
- minimise confusion and expense by providing a comprehensive
law.
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:
'To the extent that the international community has been able to
find a common ground on human rights issues and has addressed basic
questions of civil and political rights which are now accepted worldwide,
the Victorian legislation and any federal legislation should similarly
reflect those international obligations.' [2]
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:
'It is inconsistent with Australia's international human rights obligations
that gay, lesbian, bisexual and transgender people should be subject
to such a patchwork of partial protection. Article 2 of the International
Covenant on Civil and Political Rights states that the rights recognised
in the Covenant should be available to all individuals equally, not
depending on the status of the individual.' [3]
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]
'Although all States and Territories now have anti-discrimination
legislation, the coverage with respect to sexuality is uneven. Australia
is thus potentially in breach of its international legal obligations
under the International Covenant on Civil and Political Rights which
requires equal non-discriminatory treatment for all persons within
its territory. Better treatment in some States and worse in others
does not satisfy this requirement.' [9]
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:
'Anti-discrimination legislation ... is largely not used, in the
sense that very few people make complaints, but it is used in the
sense that it signals a profound symbolic shift in the way people
in society think of rights: the fact that a government, in this case
a federal government, thinks that lesbians and gays are worthy of
protection. I think that symbolic shift is enormously important.'
[11]
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:
'It makes little sense for each state and territory jurisdiction
to develop different and diverging legislative models for dealing
with sexuality discrimination. A comprehensive national law should
provide a model for states and territories in developing their own
laws.' [15]
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:
'...at least on the areas where states and the Commonwealth can agree
that these issues ought to be covered under anti-discrimination legislation,
at least around technical definitions and so on, there is consistency
on the areas of agreement.' [17]
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]
'There are extremely compelling arguments for an omnibus piece of
legislation. What happens otherwise is that in different legislation
you get minor but inconvenient differences arising, depending on particularly
historically when the bills were written. So you might have in a sex
discrimination bill exemptions or provisions or requirements which
do not apply to a disability discrimination bill, and usually what
happens is that the latest bill tends to be the most comprehensive
and extends its provisions to areas which have come up as problems
in the previous bills but are not then readdressed by going back and
amending those problems in the previous bills.
So, for the consistency of administration, the consistency of interpretation,
the uniformity of benefit, the uniformity of exemptions and exceptions
and areas of coverage, I think there is quite a compelling argument
for omnibus legislation ... so that you get a uniformity and you get
an historical keeping together of the rights of various groups, I
think a single piece of legislation is the correct way to go.' [21]
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:
'Section 10 of the Racial Discrimination Act provides a positive
right to equality before the law on the grounds of race, colour, or
national or ethnic origin. Equality before the law should also be
guaranteed on the grounds of sexuality or transgender identity.' [24]
6.19 As a part of this broad approach, it was believed that the Commonwealth
legislation must be all embracing, without being too specific:
'Overarching legislation should not unduly limit itself to particular
categories of activities or circumstance. Whilst a general philosophy
might prevail that individuals should be free to order their own affairs
as they see fit, the prohibition on discriminatory behaviour should,
as far as possible, be extended to all aspects of public life. This
should include small businesses, private schools, unincorporated associations,
and all providers of goods and services.' [25]
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:
'If there were a change in federal law, it would remove a significant
portion of welfare benefits by presuming economic dependency between
same sex couples. We do not even know whether that presumption is
correct or not because so little is known about same sex couples ...
You have to show that there is going to be an equal or greater provision
of rights and benefits through the bill to balance out that loss.'
[26]
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:
'We have put the view that any Commonwealth legislation should not
operate on the basis of the lowest common denominator. It should not
seek to remove any benefits that already exist in state legislation
... so that the highest level of protection is maintained.' [28]
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]
'Our concern with the bill, as it is worded, is that it is the one
section of the act which is restricted to only Commonwealth legislation.
Most of the pieces of legislation which exclude our relationships
and which indeed impact on our daily lives is state legislation. We
would like to see that ... amended ... so that we can then fight with
better resources for the changes that we most need within state jurisdiction.'
[31]
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:
'...if provisions under ''lawful sexual activity" become inconsistent
with the definition of ''sexuality'' is it specifically clear that
the Commonwealth legislation will prevail, given that the State legislation
still makes some provision in this area?' [41]
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.
Recommendation 1
That a working group be established no later than the date of commencement
of the Act in order to review all Commonwealth legislation, with priority
being given to legislation affecting social security and related payments
(including Veterans Affairs); taxation; superannuation legislation;
health and family programs and services legislation, and family law
matters.
Recommendation 2
That current Clause 107 become 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:
- the recognition of relationships, including rights accorded next
of kin and a form of marriage;
- taxation arrangements, especially in respect of superannuation;
- other benefits, including work related benefits.
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:
'We simply say that the matter is important enough to deal with in
a manner other than by regulation and to come back before the parliament
by way of amendment, whether by way of incorporating a schedule into
the bill or otherwise.' [47]
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]
'...that has never been something that my organisation has argued
for. We accept both the religious connection to a thing like marriage
and the emotional reaction it provokes from people in the general
community. In terms of legislation and rights and responsibilities,
it is perhaps more symbolic than something that directly gives you
rights and responsibilities such as access to someone in hospital
and intestacy and so on.' [49]
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:
'In my view the refusal of permission to marry or to recognise as
valid a marriage made otherwise [than] under the terms of the Marriage
Act 1961 would not be "in direct compliance" of that law.
Similarly, decisions on eligibility and payability pursuant to the
Social Security Act 1991 would not be in "direct compliance"
of that Act if they denied access to payments to a pre-operative transgender
on the ground that she or he was a transgender and hence not a "married
person". These would both be policy decisions based on parameters
or factors other than those set out in the legislation.' [53]
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:
'Since sterile females may marry and a person physically reassigned
to female can perform the same sexual and behavioural acts as any
other sterile female there is no rational basis for the refusal to
allow them to marry.' [60]
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:
'Amendments would be needed to the rates payable under the Act and
to the entitlements of couples under the Act. This may have considerable
cost implications for the Commonwealth or, alternatively, remove existing
social security entitlements, depending on how the Act is amended.'
[66]
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]
'My question with any piece of legislation such as this is: does
it improve the quality of life for the group that is targeted ...
Does it make life easier? Does it reduce impoverishment? Does it reduce
discrimination? If formal equality does not bring about substantive
equality, then it is not a useful exercise and may even be a negative
exercise because there is the comeback of, 'Well you have equality
now; what are you still complaining about?' [75]
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:
'De facto relationship recognition was introduced in relation to
heterosexual couples primarily for gender-based reasons - to protect
women from exploitation by men who refused to marry them and thus
could avoid property division and other responsibilities upon the
break down of the relationship. This state of affairs reflected particular
power differences between men and women, manifested in an economic
way. These gendered power differences are not present in lesbian or
gay relationships (although that is not to say that there are not
differences in economic power between gay men and between lesbians).'
[78]
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.
Recommendation 3
That the impact of the operation of new Clause 17 [formerly 107]
be assessed by a qualified body two years after the commencement of
the clause.
New Subclause 17(5)
(a) The impact of this section is to be assessed two years after
its commencement, and a report provided to the President of the Human
Rights and Equal Opportunity Commission.
(b) To assist in evaluating impact, relevant Commonwealth agencies
and departments should collect appropriate data and provide this in
a de-identified form to appropriate agencies.
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]
Recommendation 4
That a consistent and gender neutral definition of living in a 'genuine
domestic partnership', or in a 'bona fide domestic partnership or
relationship' be established and be used by all Commonwealth agencies
and departments.
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:
'...the limited nature of the Commonwealth's power to legislate on
discrimination means that this acknowledgment of non-heterosexual
couples will form only part of a much larger picture in which such
relationships are not recognised at State law, for example. The piecemeal
nature of this approach to the recognition of non-heterosexual relationships
may result in such relationships being subject to less favourable
treatment than a heterosexual couple could expect both at Commonwealth
and at State law.' [94]
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:
'...it only applies to laws of the Commonwealth. There is nothing
specific in there about a law of the state or the effect that this
clause would have on laws of the state. I am not sure of the reason
for that ... One assumes that that is because there may be some sort
of assumption that the Commonwealth legislation simply overrides state
legislation which is inconsistent, but I am not quite sure that it
operates in that way.' [95]
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.
Recommendation 5
That all couples or personal partnerships achieve legal recognition
at Commonwealth level
Clause 17[107] (3) After the commencement of this Act, the law:
confers the same right or entitlement, or imposes the same obligation,
on a person who lives with another person, either or both being a
transgender person, because of the couple living together on a genuine
domestic basis'
Clause 17 [107] (4) the regulations may provide that this section
does not apply to a specified law of the Commonwealth.'
Difficulties arising from recognition of same sex couples, transgendered
persons and transgender couples.
Same Sex couples
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:
'...the current ... Commonwealth legal position that reassigned
persons are sometimes of their sex (for purposes of Social Security)
and sometimes not (for purposes of marriage) and sometimes in a legal
limbo (for purposes of passports we are administratively but not legally
of our reassigned sex), subjects such people to discrimination of
the worst kind.' [103]
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:
'...the bill's definition of the term 'transgender' allows self-assessment
of gender in the absence of independent, objective and verifiable
evidence which support's the individual's self assessment ... the
Australian Defence Force would be opposed to recognising a change
in gender unless and until reassignment surgery had been successfully
completed and a person is physically of the opposite sex.' [111]
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:
'The majority of countries approached stated unequivocally that the
posting on loan, exchange or secondment of ADF members with same sex
partners or falling within the transgender categories would be unacceptable,
and should Australia post such members, Australia could be asked to
replace them.' [114]
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:
'In our submission the issuing of official documents...ought not
depend on whether a certificate has been issued under a law of a State.
What if no such procedure exists, or is repealed by the State? The
Bill should be amended to allow the Sexuality Discrimination Commissioner
to issue a certificate if satisfied that no reasonable procedure is
available in a State. Further, clause 25 should be amended so as to
apply to alterations to certificates as well as to their issue.' [134]
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.
Recommendation 6
That a States/Commonwealth working party be established to discuss
the most effective way of providing standard identification documents
for all transgender persons who require them.
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]
'Section 10(5) provides that a person must not exercise their discretion
in a way which discriminates when dealing with a superannuation fund.
We are concerned that there may be situations in which there is discrimination
in the way a superannuation fund is established. There is no provision
declaring this to be unlawful. We believe that discrimination in the
way funds are structured, where no exercise of discretion is involved,
should be unlawful. We are of the view that the limited exemption
in Section 30(1) of the Bill which relates to superannuation provides
sufficient balance in respect of discriminatory aspects which are
non-discriminatory as well as discretionary.' [150]
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:
'Ascribing spousal status to same sex cohabitees is not the only,
or even the most desirable, cure for this discrimination. There may
be no reason, in many areas, why live-in sexual relationships should
be privileged by the law above other relationships; any more than
heterosexual relationships should be privileged above homosexual ones.
The discriminatory provision in commonwealth superannuation legislation,
for example, could be cured by permitting a designated person to collect
a pension from the fund rather than passing pensions only to spouses.'
[153]
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]
'Given the fact that there will be very few such cases, this Association
believes that any legislation should allow trustees some discretion
to reach a compromise with the member following discussion and counselling.'
[157]
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:
'It would be of great benefit to the superannuation industry if the
various pieces of anti-discrimination legislation could be consistent
with superannuation legislation. Indeed, unless such consistency is
achieved, superannuation trustees will find themselves unable to comply
with the various pieces of anti-discrimination legislation to the
detriment of some members of funds. By complying with anti-discrimination
legislation, trustees may incur a penalty under the Commonwealth's
superannuation legislation. These penalties are quite severe...' [161]
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:
'Superannuation payments are now an integral part of wage, remuneration
and conditions negotiated at the Australian industrial bargaining
table. Superannuation is form of enforced savings for the benefit
of workers and their families. The families of lesbian and gay workers
do not enjoy these benefits to the extent enjoyed by the families
of heterosexual workers though they make the same superannuation contributions
as their heterosexual workmates.' [166]
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:
'...it must be made clear that discrimination against same sex couples
is both marital status and sexual orientation discrimination.' [169]
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]
Other benefits, including work-related benefits
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:
'...the capacity of unions to achieve equal entitlements for lesbian
and gay workers is constrained in the long term by the discriminatory
and unclear legislative regime which exists for gay and lesbian workers.'
[173]
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:
'...progressive removal of discrimination on the grounds of sexual
preference from industrial awards and ... that an employer ... not
terminate an employee's employment because of the employee's sexual
preference, subject to limitations and exemptions.' [176]
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:
'...it will provide for the removal of discriminatory acts against
employees based upon their sexuality or because they are a transgenderist.
This significantly widens the review of awards process available through
S 150A of the Commonwealth Industrial Relations Act 1988.'
[179]
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]
'There has been a series of cases where men ... have claimed refugee
status on the basis they have been persecuted in their home country
because of their sexuality.' [198]
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:
'Where a person who has any health problem or disability can support
themselves or someone else can support them, they should be allowed
to immigrate, particularly if they are the partner of a person that
can work and contribute to the community...' [200]
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.