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Same sex relationships and the Law report

Report by the Victorian Equal Opportunity Commission. March 1998

This online version is not the full report. Order the full text of the Same Sex Relationships and the Law Report.

• overview
• executive summary
  1. background and consultation process
  2. submissions
  3. areas of discrimination
  4. options for reform
  5. conclusions

Overview

Following around 500 submissions from the public and almost 12 months of research, the Commission released a major report on same sex relationships and the law on 12 March 1998. The Report, presented to the Attorney-General for consideration, outlined:

• the ways in which people in same sex relationships are treated differently by the law
• provides an overview of submissions received in response to a discussion paper on this issue
• looks at options for addressing discrimination against people in same sex relationships
• lists the relevant sections of Victorian legislation that treated people in same sex relationships differently to those in married or defacto relationships

The Report does not claim new rights for people in same sex relationships, it simply outlines the laws which might be changed in order to afford those in non marital or same sex relationships the same rights and responsibilities, where appropriate, as those in heterosexual relationships.

On the basis of submissions received and the Commission's research, the most appropriate form of recognition outlined for consideration in the Report appears to be two tiered - first, extension of legislative definitions of de facto relationship to include same sex couples and second, the establishment of a relationship register available to both same sex and heterosexual couples.

A majority of submissions did not support extension of marriage rights to people in same sex relationships, reflecting a lack of broad based support from either the community at large, or the gay and lesbian community, for marriage between same sex partners.

Executive summary

1 background and consultation process

The Victorian Equal Opportunity Act 1995 introduced 'lawful sexual activity' as a ground of unlawful discrimination in Victoria. The Attorney General, in her second reading speech, said this new attribute " is intended to protect homosexuals, lesbians and heterosexuals ... from discriminatory actions." The Act, which became operative on 1 January 1996, therefore renders discrimination against gay men, lesbians, bi-sexuals and heterosexuals unlawful in many areas of public life. After the introduction of the Act, however, the Commission became aware, through inquiries and complaints and the advice of its Gay and Lesbian Reference Group, of many instances of differential and less favourable treatment of gay and lesbian people on the basis of non recognition of their relationships. Much of this discrimination results from provisions in other Victorian or Commonwealth legislation.

A Discussion Paper exploring the extent and effect of the law's recognition and non recognition of same sex relationships was disseminated widely to the Victorian public. The Discussion Paper outlined the differences between the rights and responsibilities conferred upon people in recognised heterosexual relationships and those conferred upon people in unrecognised same sex relationships. The paper indicated that there were certain forms of discrimination that are covered by the Act and certain forms that are not. The Discussion Paper also outlined options for addressing differential treatment currently permitted by other legislation. During May -July 1997, almost 1000 copies of the Discussion Paper were distributed to members of the public and just under 700 were downloaded from the Commission's web site.

2 submissions

Approximately 500 submissions were received by the Commission. Many outlined the areas in which people in same sex relationships are treated differently and adversely to married couples and those in de facto relationships. The submissions received by the Commission also indicate that same sex relationships are a reality which the law should recognise. With the exception of a few contentious issues, the submissions received reflected strong and broad based support for the elimination of many instances of discrimination against people in same sex relationships. A number of submissions highlighted areas of discriminatory practice which are currently unlawful. The Commission can, and will, act to ensure that these practices are discontinued.

Whilst many submissions advocated reform of all discriminatory legislation affecting same sex couples there were two extremely contentious areas of discrimination - access to reproductive technology and adoption. Many submissions opposed extending access to adoption, reproductive technology and marriage to same sex couples, these submissions, nonetheless, supported reform in all other areas of discrimination highlighted by the Discussion Paper.

3 areas of discrimination

Submissions received by the Commission outlined many of the rights and responsibilities attached to the formal recognition of relationships which do not, as a matter of legislative definition and policy interpretation, extend to people in same sex relationships and, in some instances, people in de facto relationships. The legislative definition and interpretation of terms such as 'spouse', 'relative' and 'next of kin' is one of the most common ways in which people in same sex and de facto relationships are excluded from benefits. In other instances the rights conferred upon married couples are unconditional and those conferred upon non marital relationships are conditioned upon financial or other dependence.

The differential treatment of same sex couples covers a wide range of areas. The report details differential treatment of same sex relationships in relation to;

• Property rights, including division of property upon relationship breakdown and stamp duty obligations upon transfer of property.
• Rights upon a death of a partner, including funeral decisions, decisions in relation to organ donation, post mortems and autopsies, distribution of property in the event of intestacy, maintenance of a surviving partner, and accident compensation for surviving partners.
• Health related rights, including ability to make decisions for incapacitated partners and hospital visitation rights.
• Entitlement of partner to receive superannuation fund benefits upon the death of a partner.
• Access to employment related benefits such as compassionate, carer or bereavement leave, travel packages and participation in health insurance schemes.

4 options for reform

The Report outlines various options for reform of legislatively enshrined discrimination against people in same sex relationships. The options canvassed are;

• Passing legislation that broadens the definition of 'de facto relationship' in all relevant pieces of Victorian legislation.
• Establishing a relationship register that is accessible to same sex and heterosexual couples and extending appropriate rights to registered relationships.
• Amending individual pieces of discriminatory legislation.
• Extending the definition of 'de facto spouse' in the Equal Opportunity Act (Vic) 1995 to include same sex relationships and removing the exception, relating to acts done pursuant to other legislation, in section 69 of the Act.
• A combination of the above.

The Report outlines the choices made in other jurisdictions, nationally and internationally, which have adopted one or more of the above approaches to elimination of discrimination against people in same sex relationships.

The majority of submissions received by the Commission in support of recognition of same sex relationships were in favour of a combination of a registration system and expansion of the definition of de facto relationship. It was submitted that such a combination of options would avoid the disadvantages of both systems by providing formal recognition mechanisms, for those who register, as well as a safety net for those who do not.

5 conclusions

Submissions confirmed broad based support for elimination of discrimination against people in same sex relationships in most areas highlighted by the Discussion Paper. On the basis of submitted views on the options for reform in relation to same sex relationships the Commission believes that, should Government wish to address these issues, the most appropriate form of recognition appears to be two tiered - first, extension of legislative definitions of de facto relationship to include same sex couples and second, the establishment of a relationship register.

The Commission believes that further consideration of, and community consultation on, the issues of access to reproductive technology and adoption for people in same sex relationships would be appropriate before changes are proposed in these two areas.