Introduction
It may seem like a strange title 'Where to from here?', because really we are starting at
ground-zero and have an incredibly long
way to go, but at the same time we have progressed
enormously in the last five years. In terms of actual legislative reform, only
the ACT has made any
progress but in terms of societal attitudes, which are a necessary precursor to legislative reform, society
is becoming increasingly accepting of gay men & lesbians, more aware that we actually have meaningful
relationships, and appalled
at the discrimination we experience.
The title also suggests several obvious questions which are in fact at the heart of the
matter Where are we at now? Where do we want
to get to? How do we get there? These are
questions which gay men & lesbians throughout the world are grappling with right now
and which may
well have different answers in different situations.
Where are we at now in Australia?
Generally speaking few pieces of legislation in Australia single out gay men & lesbians
for discrimination. In fact there are few
which even mention lesbians and the main ones which overtly
discriminate against. gay men are the Crimes Acts in each State.
Parts of the criminal codes dealing with issues like age of consent have been written in
such a way as to include lesbians with heterosexuals
and only single out gay men for special, and
usually harsher treatment.
This is not to suggest that gay men & lesbians are not discriminated against in
education, employment, provision of goods and services
etc because of our sexuality but that such
discrimination, whilst being wide-spread and systemic, is generally not legally sanctioned.
The areas where we continue to be legally discriminated against as individuals tend to
be the same areas where all single people
are discriminated against in preference for couples or the few
areas of exemption in anti-discrimination acts such as independent
schools and religious
bodies,
These acts, regulations, policies and practices which give preference to couples are the
largest and most far reaching area of discrimination
we suffer. And that's for two reasons: firstly, they
almost invariably only recognise heterosexual 'marriage-like' relationships;
and, secondly, they cover things
which impact on almost every aspect of our lives and deaths. They do not say lesbians & gay men
are not
includes but they use definitions of husband/wife, de facto spouse, partner, defendant etc which only apply
to a heterosexual
relationship.
What types of legislation are we talking about?
There are many gay men & lesbians, (and solicitors) who really have no
idea about the extent of the discrimination experienced by
people in same-sex
relationships, or about the shear volume of legislation which makes our relationships
invisible. Many of them
have never had recourse to the law; or have never had a lover
unconscious in hospital; or die of a terminal illness; or had a relationship
breakdown that
ended in court. It is easy for people in such situations to think that we are better off not
having our relationships
recognised. After all, who wants the state interfering in their
relationship. The problem is that the state already does interfere,
its just that some of us
have been lucky enough not to have been impacted by it ... yet!
There are several publications which go through in detail the different types of legislation and, if
you can get hold of them, I
would particularly recommend 'Lesbians and the Law' a joint publication of
the Women's Legal Resources Centre and the Gay & Lesbian
Rights Lobby (GLRL) put out in 1991 but
unfortunately still current. 'The Bride Wore Pink 1994' from the GLRL's Lesbian & Gay Legal
Rights
Service, and the GLRL's more recent papers: 'Legal Recognition of Same-Sex Relationships' and
'Superannuation and Same-Sex
Relationships'.
Whilst the actual names of the various Acts vary from State to State, the types of
legislation occur almost uniformly across the country.
1. Legal Status
The law through the Federal Marriage Act or State-based de facto legislation
confers a certain legal status on heterosexual relationships
from which various rights &
responsibilities flow. Neither of these are available to gay men or lesbians so our
relationships
are essentially made invisible by the law.
The one exception to this is the ACT which passed a Domestic Relationships Act in 1994 which
deals with property and financial distribution
on the breakdown of a relationship and was the first piece of
legislation in Australian to give equal standing to gay & lesbian
relationships.
Queensland does not have a de facto relationships act but, prior to the last election there was a
proposal to hand over responsibility
for de facto relationships to the Family Law Court. The now
Government is yet to act on this proposal.
Likewise, Victoria does not have a 'de facto relationships act' per se but it does
recognise heterosexual de facto relationships in
a whole range of legislation.
The Commonwealth Sex Discrimination Act and State-based anti-discrimination acts protect
heterosexuals against discrimination on
the basis of marital status but at law, our marital status is always
'single' so we are not afforded this protection.
A case before the NSW Equal Opportunity Commission in 1965 in which two gay male couples complained
because QANTAS would not put
them on the married couples roster, established the precedent that,
when discriminated against because of our relationships, we
could not complain under either the
homosexual or marital status provisions.
A 1995 case against NIB Health Fund in NSW was successful in forcing the Fund to accept a
gay male couple and their child for family
membership but the case was argued on the definition of
'dependant' not 'spouse' and so has only really provided a 'backdoor' avenue
to recognition of our
relationships. It is interesting to note, however, that this new definition of dependency as being more
than just financial and including co-dependency, is being picked-up on in other arenas.
2. Death of a Partner
A heterosexual partner of someone who dies automatically has certain rights. Lesbian or gay
male partners do not:
Disposal of the body
Decisions about funeral arrangements, organ donation, postmortems even what
happens to the ashes after a cremation are made by the
executor of the estate or the 'senior
available next of kin' which excludes same-sex partners.
Inquests
Relatives have a right to request that an inquest be held with a jury. 'Relative'
does not include a gay or lesbian partner.
- The estate
There are acts in each State which provide for family members to receive shares of the estate
including a significant proportion
for the surviving spouse. These provisions do not include same-sex
partners.
Again, the one exception is the ACT which passed legislation in 1996 giving
equal standing to same-sex relationships in the event
of one partner dying
intestate.
The 'Family Provision Act' does allow same-sex partners to challenge the estate distribution but
not as recognised partners and only
if they can pass dependency and cohabitation tests that are not
imposed an heterosexuals.
Victims Compensation
If a person dies from an act of violence, compensation ran be paid to 'close relatives', this does
not include a same-sex partner.
The same goes for the 'Compensation to Relatives Act which provides
for damages for economic loss if someone died as a result of
another's negligence.
3. Incapacity of a partner
If a heterosexual person becomes unable to handle their own affairs, and they don't have a legal
guardian, their partner automatically
becomes the 'person responsible'. A gay o . r lesbian partner has
to apply for appointment as their partners guardian before they
can make decisions about things like
medical treatment.
4. Ending a Relationship
Distribution of property and financial matters on the breakdown of a relationship can be
resolved under the' 'Family Law Act' for
married couples or State-based de facto legislation (where it
exists), for other heterosexual couples.
The Family Law Act also provides for counselling and mediation.
Gay or lesbian couples have to go to the expense and added difficulty of pursuing such matters as
Civil Claims, where our relationships
are treated as legal contracts and without the counselling and
mediation provided in the Family Law Court.
Heterosexual couples who end a relationship and transfer property do not have to pay stamp
duty whilst gay or lesbian couples do.
5. Criminal Law
In deciding whether or not to grant bail a court has to consider the protection of 'close relatives'
this does not include a partner
of the same sex.
A heterosexual spouse cannot be compelled to give evidence in relation to communications
between spouses. And courts are compelled
in certain circumstances to give protection to spouses and
family. Neither of these provisions apply to same-sex
partners.
6. Children
Adoption
Acts covering the adoption of children generally provide for 'stranger' adoption
by married couples, and in some special needs cases
by heterosexual de facto
couples and individuals. These acts do not recognise same-sex relationships.
In NSW there have been cases of lesbians being allowed to adopt but one
partner has had to apply as an individual,
Adoption of a partner's child in a heterosexual relationship is covered by the
'Family Law Act' and is almost automatic. It only
covers opposite-sex partners.
Guardianship & Custody
In the absence of a court order both biological parents are regarded as
guardians and as having joint custody.
Gay men & lesbians can be granted custody of their children and it is now rare to see the Family
Law Court discriminating against
gay or lesbian parents. But same-sex co-parents have no legal standing
ie cannot make decisions about medical treatment, schooling
etc unless the court gives them joint custody
and that has to be consented to by both biological parents in most cases.
Conception
The law provides that if a child is conceived in a heterosexual marriage or de facto relationship
the male partner has the rights
and responsibilities of a parent. If conceived by donor insemination a
child does not legally have a father, but this can be altered
by an acknowledgment in writing from the
donor.
In neither case does a same-sex partner have any legal standing.
7. Employment
Superannuation
Super schemes often pay a higher rate of benefit on retirement if there is a heterosexual
spouse, And most pay a death benefit or
spouse's pension to the surviving spouse. Few schemes
recognise same-sex partners.
Employee Benefits
Many employers provide benefits such as payment of relocation expenses but in
most companies, these apply only to heterosexual partners.
Workers' Compensation
Both Federal and State compensation law's allow for compensation to dependents
if someone dies as a result of a work-related injury.
Both use definitions of husband, wife,
family etc which exclude same-sex Partners.
8. Health Insurance
Until recently most Health Funds failed to recognise same-sex relationships. In 1995, a gay
male couple successfully complained
to the NSW Anti-Discrimination Board about the refusal of NIB
Health Fund to grant them family membership. NIB has appealed this
decision and the case has yet to
be heard. In the interim they will not be granting other same-sex couples family membership.
9. Taxation
A heterosexual couple can claim a dependent spouse rebate or housekeeper's
allowance but this is not available to same-sex couples.
The same goes for various tax concessions such as those around superannuation.
10. Social Security
This is one of the very few areas where failure to recognise our relationships actually
provides for preferential treatment and therefore
is one of the most contentious in any
discussion of legally recognising same-sex relationships, Because we are regarded as
individual
units by DS; one of a couple can get benefits including Supporting Parents
Benefit while the other is employed or both can receive
the single rate of benefit which
amounts to more than the married rate.
11. Immigration
From 1 July 1995 the Migration Regulations have provided for gay men and lesbians to
sponsor a partner from overseas under similar
conditions to those applying to heterosexual
couples.
If your partner is already in Australia you have to prove that the relationship has existed for at
least 6 months and your partner
will be granted a temporary visa for 2 years. If you are still together
after 2 years they will be granted permanent residency. If your partner is overseas when you apply,
and you can prove that you have been in a relationship
for at least 6 months they will be granted
permanent residency in Australia.
The bad news is that the new Immigration Minister has announced his intention to change the
rules for heterosexuals applying from
overseas to bring them in line with on-shore applications ie 2 year
temporary residency, and this will undoubtedly flow on to the
Interdependency Regulations which
impact on us.
What are the options available to us for recognition?
Having considered the areas of discrimination being experienced, there are
obviously several avenues open to us for future action,
all of which create both benefits
and dilemmas. Do we want to have our relationships recognised by the law at all? Some
say 'no',
but we believe that the majority of lesbians and gay men say yes.
If. we do want them recognised, what form should that recognition take? Do we simply want to
be included in existing legislation
with all of its problems or do we want something new and different? If
we go for something different will it leave us as third
class citizens behind married couples and
heterosexual de factos? How politically feasible would it be to get something different
anyway?
There is certainly no consensus in the gay & lesbian community on the way forward, and nor will
there ever be. Attempting to get
consensus within the gay & lesbian community is like trying to get a 'yes'
vote at a referendum. Lesbians and gay men come from
all walks of life and are so varied that they will
never all agree on anything. Having said that, we still need to make every effort
to determine what the
majority want and we believe that we have clone that in NSW.
Still, it is worth considering all of the options:
1. Maintain the status quo
We could choose to do nothing, leave things the way they are and just find ways around the law
when and where we can.
This approach is most often favoured by two particular groups in the community:
Those who like to be alternative, underground, outside of society. Legal
recognition threatens their whole image of how they and
other lesbians fit (or not) into
the broader community.
Those who feel strongly that they do not want the law interfering in their relationships.
Which, of course, it already does, but
in a uniformly negative way.
The problems with this approach are that there are not always ways around the areas
of discrimination and for those who care about
equality, it doesn't help.
2. Seek new and different legislation
We could seek new legislation dealing only with same-sex relationships which doesn't repeat
the perceived problems of the existing
de facto legislation eg a 'Registered Partnerships Act'.
This type of legislation is preferred by people who want to make the choice about
whether or not to have their relationships included
within the ambit of legislation,
This approach is most often argued for by people who own property and want to ensure that
their partner doesn't get their hands on
it in the event of the relationship breaking
down, and usually with the argument that a 'De facto Relationships Act is needed
by
women in heterosexual relationships because of the inherent power imbalance but that same-sex
relationships are based on equality.
To that argument I have to say: 'dream off'. It is simply not true. One only has to
look at the high rate of domestic violence
in the community to realise that inequality exists
in our relationships too.
The problems with this approach are:
The overseas experience has been that people simply don't register in large numbers either
because they are opposed to a concept
so like marriage, or they live in areas where they are in fear of
outing themselves, or they just never get around to it and the
relationship breaks down, then it is too
late.
We would be asking the Government to enact legislation that doesn't just give us equality but
puts us in a privileged position over
heterosexual couples and this is unlikely to be agreed to in any
political climate.
We would be trying to introduce a third piece of legislation dealing with
relationships, which would undoubtedly be number 3 in the
hierarchy.
Whilst it would resolve many of the problems it would still give out the message that
gay & lesbian relationships are third rate.
3. Marriage
We could go straight for amending the Marriage Act. In our consultation process, it was
generally as you got further out of the
inner-city that more people preferred this approach, but with what
appears to be a boom in commitment ceremonies at the moment there
may now be greater support for
this option.
There are, of course, those who are violently opposed to this option as just mimicking the
worst of heterosexual relationships and
who don't want to see our relationships defined in those
terms.
The other obvious problems with this approach are:
It would at least require an amendment to Federal legislation and the Federal
Government is more conservative than many State Governments,
certainly more
conservative than the current NSW Government.
There is some debate about whether such a change would in fact require constitutional
amendment which would necessitate a referendum
with little chance of success.
It would still exclude probably the majority of lesbians and gay men who would simply
not take up such an option.
Finally, the very mention of gay marriage provokes an emotional response in the general
population much different to that generated
by any discussion of legal recognition and would
almost undoubtedly lead to a strong backlash against the gay & lesbian community.
4. Inclusion in existing de facto legislation
This means inclusion of gay & lesbian relationships, in all of the pieces of legislation in
each State which assign particular rights
or obligations to couples.
This is the approach favoured by the majority of lesbians and gay men consulted by the
GLRL in formulating our position. So what
are the pros and cons of such an approach?
Pros:
- Financial benefits during the relationship
- Protection for the weaker partner on the break down of the relationship cheaper mechanisms for
resolving disputes
- Same-sex relationships would be recognised as equal to heterosexual de facto relationships
- Partners would have access to enforceable cohabitation and separation agreements
- Access to the Family Law Court for counselling, mediation etc where there are children involved
- It is likely that all dispute resolution concerning de facto relationships will ultimately be transferred to the
Family Court and
we would be included
- We would have access to the marital status provisions of anti-discrimination legislation.
Cons:
- Agreements cost money and the courts can still override them
- Can the judiciary really understand our relationships?
- It may be difficult and costly to prove that a relationship did or did not exist
- Do we want our relationships compared to marriage?
- The ultimate impact on DSS payments
- It won't include people in long-term relationships who don't cohabit.
This last point can be resolved by States replacing existing de facto relationships acts
with legislation Mirroring the ACT Domestic
Relationships Act which recognises a
broader range of relationships and does not require cohabitation.
5. Significant Personal Relationships
In part to cover relationships where people don't live together, but also to include a broader range
of relationships, we could also
propose amendments to some particular pieces of legislation to recognise
'significant personal relationships'.
The sort of legislation where you might include this broader definition are victims'
compensation, Coroners' Acts, compensation to
relatives and workers' compensation.
So the answer to the 'where do we want to get to?' question is: the same legal standing, within
the same pieces of legislation, as
heterosexual relationships but we want to see all relevant legislation
amended to include a broader range of relationships irrespective
of someone's sexuality.
How far have we come?
Obviously there is still a long way to go but at least there are some glimmers of
hope:
The ACT is the only State which gives any form of legal recognition of same-sex
relationships.
The Labor Opposition in SA attempted to change to their 'de facto Relationships Act' to
include same-sex relationships but were defeated.
The NSW Government has promised to move on some form of legal recognition in their
first term in office and it is likely to happen
in September 1996.
The Federal Government has indicated they are willing to at least examine discrimination in the
area of superannuation and have instituted
a Senate Inquiry into sexuality discrimination.
Where to from here?
The legal recognition of same-sex relationships will be the most significant change for lesbians
and gay men in recent times, not
just because it requires major legislative reform or because it changes
laws which impact on our daily lives, but because it will
change both the way society looks; at us and the
way that we look at ourselves. As long as society can say to us 'We don't legally
recognise your
relationships because they don't really exist or of no importance' we will continue on some level to view
ourselves
in the same way.
The problem is that to change laws we have to be able to convince sufficient numbers of
politicians both that the changes we are
asking for are fair and just, and that the majority of people in
society support that change. The only way to do this is to have
prominent people, opinion leaders in
society speak out about the injustice of the current system and in support of legislative reform;
to have
supportive articles in the media to help educate the people and sway public opinion; to produce articles
and discussion
papers; and to have active lobbying organisations in every State arguing for reform.
Most importantly we need to have people in the legal system who understand the issues, who
will challenge the current laws and who
have the courage to make rulings which dispense justice rather
than simply applying the rules.
