Human rights are for all peoples - each woman, man and child - in all places and at all times. This is the fifth of a series of Occasional Papers to be published examining the application of human rights to a specific area of concern confronting Australian society.
The Human Rights and Equal Opportunity Commission has recognised and promoted for many years the human rights needs of all Australians. This paper is based on the Commission's submission to the Australian Senate Legal and Constitutional References Committee on the need to protect Australian citizens against discrimination and vilification on the grounds of their sexuality or trans-gender identity.
Policy officers contributing to the Commission's original submission to the Senate Committee on which this paper is based were Rosemary Grant, Andrew Larcos and Cara Seymour. Gay men and lesbians face widespread discrimination on the basis of their sexual orientation as do persons of trans-gender identity. The full realisation and protection of human rights and equality of opportunity require the adoption of positive measures to eliminate discrimination on the basis of sexual orientation and trans-gender identity.
Australia's international human rights obligations require Australia to take all necessary measures to eliminate discrimination, including discrimination on the grounds of sexual orientation and trans-gender identity.
By ratifying the International Covenant on Civil and Political Rights, the International Covenant on Economic, Anti discrimination act 1977 homosexuality and christianity and Cultural Rights and the International Labour Organisation Discrimination Employment and Occupation ConventionAustralia has undertaken to prohibit discrimination and to provide effective remedies against discrimination including on the basis of sexual orientation and trans-gender identity.
For instance, Article 2.
The requirement prohibits discrimination "of any kind" which affects the exercise or enjoyment of rights recognised in the ICCPR. In general terms, Article 2 requires that the civil and political rights provided for in the Covenant such as rights to liberty, freedom of thought, conscience, religion and belief and freedom of opinion, expression and information be guaranteed without discrimination of any kind.
Liberty and equality are the bases of human rights. The concept of equality contained in the ICCPR includes not only equality before the law but equal protection of the law and equal and effective protection against discrimination. Decisions of the UN Human Rights Committee indicate that the obligation to respect and ensure the "equal protection of the law" is an obligation to prevent discrimination in the law, the application of the law or in any action under the authority of law.
Sexual orientation and trans-gender identity are not referred to as specific grounds of proscribed discrimination in the ICCPR. However the grounds are clearly included within its terms. The general right to equality before the law and equal protection of the law requires that there be no discrimination in the administration of the law on any ground and that the provisions of the ICCPR should not be interpreted restrictively. Australia accepts homosexuality as a status for the purposes of the Refugee Convention.
All States and Territories with the exception of Tasmania and Western Australia have passed laws to prohibit discrimination on grounds that include sexual orientation. This decision related to an individual complaint submitted by Mr Nick Toonen to the Human Rights Committee in December that, as a result of sections of the Tasmanian Criminal Code which criminalises all forms of sexual intercourse between males, he was a victim of violations by Australia of Articles 2.
Essentially, the Committee found that Australia was in breach of Articles 2. Persons of trans-gender identity also experience adverse treatment. However, existing jurisprudence and interpretation strongly support recognition of trans-gender Anti discrimination act 1977 homosexuality and christianity as a status covered by the ICCPR.
The interpretation of "sex" by the Human Rights Committee supports the view that persons of trans-gender identity are covered by the specific ground of sex. This is also supported by recent decisions before the European Court of Justice. The primary obligation of States Parties to the ICCPR is to ensure realisation of Anti discrimination act 1977 homosexuality and christianity rights recognised in the Covenant and the promotion of nondiscrimination and equality before the law through all appropriate measures, legislative, administrative and judicial.
Failure to enact the necessary laws to ensure these rights or to provide an adequate remedy for violation of one of these rights is a
Anti discrimination act 1977 homosexuality and christianity of the ICCPR. The International Labour Organisation Discrimination Employment and Occupation Convention "ILO " which was ratified by Australia in prohibits discrimination in employment and occupation on certain specified grounds.
Although the Convention does not proscribe sexual orientation as a prohibited ground of discrimination, it does provide that ratifying States may address discrimination on additional grounds. Australia has declared sexual preference as a ground of discrimination for the purposes of the ILO The Convention imposes positive obligations on Australia to take steps to ensure equal opportunity and non-discrimination in employment and occupation on the specified and declared grounds including sexual preference.
The International Covenant on Economic, Social and Cultural Rights ICESCR also contains provisions relating to the need for effective protection of human rights of people discriminated against on the basis of sexual orientation and trans-gender identity. The ICESCR provides that States parties must guarantee that rights contained in its Articles be exercised without discrimination of any kind in areas including employment, housing, health and education.
The Commonwealth has the power to legislate to give effect to international treaty obligations on the basis of its external affairs powers under s. International concern about the protection of the rights of gays and lesbians is evident in the adoption of measures to prevent discrimination on the ground of sexual orientation in the European Union, the United States, Canada and New Zealand.
Similar protection measures have also been adopted for persons of trans-gender identity in various European countries. High Court decisions have established beyond doubt that the Commonwealth has power to legislate on matters of international concern, including to give domestic effect to Australia's international human rights obligations.
Current Federal, State and Territory law provides only limited protection against discrimination. The Human Rights and Equal Opportunity Commission has certain powers to inquire into any act or practice that may violate human rights or constitute discrimination.
However, it is not unlawful to breach the human rights and principles of non-discrimination protected under the Commission's legislation and the Commission does not have the power to enforce its recommendations. Other laws that provides some protection against sexual preference discrimination include the Industrial Relations Act and the Public Service Act The Human Rights Sexual Conduct Act also provides limited protection requiring that sexual conduct between consenting adults not be subject to any arbitrary interference with privacy.
There is no uniformity among Australian States and Territories in legislative protection for gay men, lesbians and persons of trans-gender identity. Although legislation exists in respect of discrimination on the ground of sexual orientation in a number of States and major differences arise in terms of how sexuality is defined and whether presumed sexuality as well as actual sexuality is covered and in areas in which discrimination is outlawed and exceptions allowed.
In particular, there are differences in the range of exceptions and exemptions allowed for by each State and Territory with legislation.
The most common areas of exemption include private education, employment in child care and churches and religious institutions. There is no legislative protection in either Western Australia or Tasmania. The situation can best be described as inadequate.
Anti discrimination act 1977 homosexuality and christianity legislative situation in relation to persons of trans-gender identity is particularly inadequate. The historic disadvantage suffered by homosexual persons has been widely recognised and documented.
Discrimination continues to be their experience in employment, laws, policies and programs of government, access to services and exclusion from aspects of public life. There is urgent need for Commonwealth action to outlaw discriminatory acts, practices and treatment to which gay men and lesbians are subjected. Extensive consultation with interested parties including gay men and lesbians themselves, government and non-government organisations, employer and employee organisations as well as State and Territory Governments is necessary before legislation is prepared.
For many gay men and lesbians discrimination in employment and in the workplace is a significant issue. The Human Rights and Equal Opportunity Commission receives numerous complaints of discrimination based on sexual orientation in the workplace, harassment and unfair treatment. Breaches of confidentiality are a particular problem with many gay men and lesbians fearing exposure of their sexual orientation and the consequences.
Complainants indicate that higher duties and overtime are often denied to gay men and lesbians. Anti discrimination act 1977 homosexuality and christianity extreme cases, gay men and lesbians have resigned or were forced to resign because of their sexual orientation.
Few employers have policies and procedures to protect workers against discrimination on the ground of sexual orientation. Harassment is often not taken seriously by heterosexuals. Assumptions about lesbians and gay men shape employer-employee and employee-employee relations in ways that lead to unfair treatment and a loss of rights even where there is no conscious discrimination.
The experience of anti-discrimination law in the workplace is that, once assumptions are deemed unacceptable and employees feel that their status cannot be an issue in promotion, hiring or firing, then those employees are much more likely to contribute their talents and efforts without constantly fearing exposure or harassment.
In most defined superannuation benefit schemes, such as the Australian Public Service schemes, a "spouse" may be paid either a lump sum payment or a pension or both if death or disablement of a contributor occurs before attaining the maximum retiring age. A "spouse" may also be paid a reversionary pension where a person in receipt of a pension under the scheme dies.
Entitlements under defined benefit scheme legislation depend on the contributor being survived by a "spouse". The Commonwealth Superannuation Schemes Amendment Act eliminated discrimination on the basis of marital status by removing the discriminatory "dependency" requirement for an unmarried spouse.
However the new definition requires the "spouse" to be living as "husband or wife" of the contributor. The Tribunal reached this conclusion reluctantly stating "it gives us no joy to do so". The Tribunal considered there to be no doubt that the applicant Mr Brown and the deceased Mr Corva "had a close marriage-like relationship and that they conformed to the requirements of s.
However it held that the legislation did not provide an entitlement to Mr Brown to the spouse benefit. Payments by non-government superannuation funds are determined by the provisions of trust deeds.
The trustees of these schemes can be given a discretion to pay death benefits to a same sex partner as either a spouse or a dependent. Superannuation funds must comply with the Superannuation Industry Supervision Act "the SIS Act" if they are to obtain the substantial tax concessions available to funds.
Section 62 of the SIS Act requires that the trustee ensure the fund is maintained solely for one or more core and ancillary purposes listed. One of those purposes is to provide death benefits in respect of a member of the fund to the member's legal representative or the member's dependents.
Section 10 of the Act defines "dependent" to include spouse and child. A recent report of the Senate Select Committee on Superannuation noted that most fund trustees interpret sections 10 and 62 to exclude the payment of benefits to a same sex partner, Anti discrimination act 1977 homosexuality and christianity where that partner is the nominated beneficiary of the deceased.
In addition competing claims from persons related to the deceased by blood or marriage are given preference. A same sex partner is usually not considered to satisfy the definition of dependent in section Trustees who pay a death benefit to a same sex partner take the risk that their fund will be Anti discrimination act 1977 homosexuality and christianity as not complying with section 10 of SIS and it will lose the significant associated tax concessions.
However, the Report noted that "dependent" as defined "includes" a spouse. This suggests that a person who is not a spouse but is nevertheless in a dependent relationship at the time of the member's death may fall within s. Theoretically, a same sex partner may be able to demonstrate that he or she was financially dependent upon the deceased contributor thus satisfying the SIS definition of "dependent".
Although this would extend coverage it remains discriminatory. For heterosexual workers and their married or de facto partners, dependency is presumed. The Report of the Select Committee states that the uncertainty surrounding the definition of dependent in the SIS Act "places a difficult burden on trustees and may place same sex partners in a situation of significant uncertainty as regards their respective entitlement.