In June 2006, the HRLRC made a submission to the Human Rights and Equal Opportunity Commission’s inquiry into discrimination in access to financial and work-related benefits and entitlements for same-sex couples.
The HRLRC submission considered a range of domestic legislation conferring such benefits and entitlements in the light of international human rights jurisprudence, and expressed concern that these and other laws risk placing Australia in breach of its international human rights obligations. The submission focussed particularly on rights to non-discrimination under the International Covenant on Civil and Political Rights (’ICCPR‘), the Convention on the Rights of the Child (’CRC‘), the Discrimination (Employment and Occupation) Convention of the International Labor Organisation (’ILO 111‘), and the International Convention on Economic, Social and Cultural Rights (’ICESCR‘).
The focus of the submission was to provide authoritative jurisprudence on the content of the human right to non-discrimination, particularly in the ICCPR. Accordingly, more consideration in this submission was devoted to elucidating the content of that right, rather than identifying specific federal and state laws that are in breach of it.
The submission provides an overview of the jurisprudence in connection with the human right to non-discrimination specifically as it relates to same-sex relationships. It identified two levels of differential treatment which, unless instituted on reasonable and objective criteria, constituted violations of human rights:
- Differential treatment of people in same-sex relationships and people in de facto heterosexual relationships; and
- Differential treatment of people in same-sex relationships and people who are married.
The question of whether or not the second kind of differential treatment constitutes discrimination is more jurisprudentially complex than the first. The HRLRC submission analysed the relevant jurisprudence in detail and concluded that, especially in the absence of a same-sex analogue to marriage, such differentiation would be discriminatory unless justified on the basis of reasonable and objective criteria.
The submission also considers some domestic legislation concerning financial and work-related entitlements and benefits that, in the light of the human rights jurisprudence, risks breaching Australia’s human rights obligations. Typically this revolves around the legislative definitions of terms like ’spouse’ and ‘partner’, which are usually defined to include people in de facto heterosexual relationships, but not people in same-sex relationships, or are confined to marriage.
The submission concludes by recommending that the laws considered in the submission be amended to be aligned with Australia’s human rights obligations, and suggests in general terms, some ways in which this may be achieved. Often, this may simply be a matter of amending legislative definitions so they are entirely gender neutral. However, other discriminatory provisions would require the recognition of a same-sex analogue to marriage, or the harmonisation of state and federal laws.
