Fighting bigotry and prejudice
Last week's decision by the Administrative Review Tribunal, which upheld a refusal to pay a spouse benefit to a gay man whose partner of 11 years had died of an AIDS-related illness, highlights the need to overturn what amounts to lawful discrimination against people in same sex relationships.
The deceased had been a member of the Commonwealth Superannuation Scheme from 1977. The Superannuation Act of 1976, which governs the scheme, provides for a "spouse benefit" where an eligible employee dies before retirement age and is survived by a spouse. The deceased's partner applied for the benefit but was refused on the grounds that, according to the tribunal, the super scheme extends to husbands and wives "and not to other persons in similar or analogous situations". The act, which allows a pension to go only to the "legal" partner or dependents, adds to concerns that super funds are beyond worker control.
The benefit, worth about $7000 a year as a lifetime pension, was refused by the Office of the Commissioner for Superannuation, which determined that the couple did not have a "marital" relationship. Yet this couple pooled their income and shared all their living expenses, including rent, food and clothing, for over a decade.
Justice Jane Mathews of the ART, in handing down the judgment, implicitly criticised the federal law for excluding gay and lesbian couples. "The clear import" of the act, she said, is to restrict spouse benefits to husbands and wives of opposite sexes, whether or not legally married.
Ironically, this decision comes in the wake of a NSW Industrial Relations Commission decision that all workers, including same-sex couples, could get up to five days' sick leave or single days of annual leave to care for sick family members. This goes much further than last year's Federal Court ruling which defined family members as a "household" but avoided explicitly stating that same-sex couples were entitled to this leave.
The federal government is ignoring its international treaty obligations. "Legal" discrimination against gays and lesbians is still being vigorously upheld in various courts — both state and federal. Critics of the new Victorian Equal Opportunity Act, for instance, say it allows many exceptions and exemptions for employers to discriminate against lesbians, gay men and transsexuals.
The Gay and Lesbian Rights Lobby and the Australian Federation of AIDS Organisations are lobbying the federal attorney general and treasurer over changes to the definition of "family" in superannuation law. They say is it now up to the government to amend the legislation.
More fundamentally, equal rights advocates need to move beyond arguments about what constitutes a "family". The argument should be about ensuring that the same entitlements and benefits are available to every individual — regardless of their family status. It should also take up the basic democratic right of everyone to control and decide what to do with their own wages and benefits.
This would be an important step. It can provide achievable goals for a mass campaign — the only guarantee that reforms will be implemented.
Until the major organised social force in this country — the trade unions — takes up the battle to ensure that people in same sex relationships can enjoy similar rights and protection as people living in heterosexual relationships, there will be very little substantive change — in spite of the law. As the women's movement learned from bitter experience, changes to the law, while important, by themselves do not bring real, social, change.
Those with an interest in defending democratic rights — the majority of us — must become part of the campaign to fight prejudice and homophobia.