Source: News Weekly, August 27, 1994 - Page 5
The Industrial Relations Commission is hearing an application by the ACTU for up to an additional five days leave annually for employees to attend to dependent children and other members of the immediate family who are ill.
The homosexual lobby grasped the opportunity offered by the application to use the case to obtain legal equality for homosexual relationships.
The Australian Democrats leader Senator Cheryl Kernot announced her intention to appear to argue not only that the ACTU’s application should be granted, but that the concept should be extended to any employee who cared for another person.
Senator Kernot supported the Gay and Lesbian Legal Rights Coalition’s contention that the claim ought to be extended to homosexual couples and extended the concept to an adult who took in a child boarded (presumably paid or unpaid).
The Australian Family Association opposed the Kernot application and was represented by Mr Joseph Santamaria of the Victorian Bar.
The homosexual lobby was supported by the Federal Government’s Human Rights and Equal Opportunities Commission (HREOC) who argued that homosexuals ought to be allowed leave to care for any other homosexual. The HREOC argues that “Because of the responsibility attitude the gay and lesbian community has taken to HIV/AIDS, many in the community are involved with caring for those who are ill, but may not necessarily be their partner”.
The ACTU, while nominally supporting the homosexual case, refrained from putting its full weight behind it. Nevertheless it is interesting that the Gay and Lesbian Legal Rights Coalition obtained a letter of support from, amongst others, the NSW Trades and Labor Council which is the heartland of the ALP “Catholic right”.
The homosexual lobby would also be disappointed that the Federal Government’s position was that while it was prepared to include ‘de factos’ with its definition of ‘family’, it excluded homosexual couples. To that extent the Government’s position was consistent with that of the Australian Family Association.
Both the Gay and Lesbian Legal Rights Coalition and Senator Kernot dismissed the definition of ‘spouse’ and ‘family responsibilities’ contained in the Social Security Act and the Sex Discrimination Act.
Senator Kernot argued that each act of Parliament should be treated in isolation because of “the absence of a Federal statute which defines the immediate family for the purposes of all other acts”. The homosexual lobby argued that the Commission had been entrusted by statute “to arrive at its own conclusion about the definition of the ‘immediate family’”.
Mr Santamaria, representing the AFA, claimed the IRC has no jurisdiction to define the family or to extend the ACTU’s claim beyond immediate family to include any employee who card for another person. The AFA pointed out that in a case in which the Full Bench of the Federal Court refused to redefine radically the term ‘spouse’, Judge Lockhart said, “At the present time a change in the law of so fundamental a nature as this can only be achieved by Parliament.” The AFA submitted singularly that any redefining of the family could be undertaken only by Parliament, not by the IRC.
Last November the Government introduced into the Senate legislation concerning the child-care rebate which referred in the definition of ‘family’ to a ‘marriage-like relationship’.
In response to a question from Independent Senator Brian Harradine, the Minister for Family Services, Rosemary Crowley, said the definition “would allow the inclusion of people of the same sex who have responsibility and care of children.”
Senator Harradine pointed out “for the first time we have a minister of a Government saying the definition of a family is to include same-sex couples - homosexuals.” Senator Crowley reiterated: “Yes that is what I said and that is what this legislation means.”
Senator Harradine persisted: “We are talking about a situation where I believe for the first time, the minister has chosen to define a family so as to include lesbians and homosexuals. I think that is a very serious matter.”
Senator Harradine then proposed debate on the subject be adjourned. Senator Crowley “did not wish to accept that”. She said, “It seems to us much more important to be inclusive of opportunity for children rather than defining a group who would be ineligible for that kind of assistance”.
“That has never been the definition of family in the legislation,” Senator Harradine retorted. “We do not want it to creep through the back door as the Government is trying to do on this occasion.” Senator Harradine was supported by the Coalition, particularly Senator John Herron from Queensland who believed the debate to be “of fundamental importance”.
When the debate resumed three weeks later Senator Crowley announced the Government was amending the definition of ‘family’ to exclude homosexual couples. Somebody had obviously instructed her to make a 180 degree turn on her position.
Needless to say the Australian Democrats and the Greens opposed the exclusion of homosexual couples from the definition.
The nature of this debate and its currency raises questions about Senator Kernot’s intervening in the ACTU’s case. Normally we expect to hear politicians talking about the primacy of Parliament - not undermining it by seeking a tribunal approval for a proposition rejected by the parliament.
That Senator Kernot is aware of the consequences of the IRC’s extending the definition of family to include homosexual couples appears clear. In discussing the Government’s legislating a national minimum standard for special family leave, she told the IRC it “may be performing a de facto legislative drafting role when it writes its findings on this test case”.
The importance of the homosexual lobby’s intervention in this case should not be underestimated. It is clearly part of a wider campaign. The Federal Government has indicated it will treat the public servants in homosexual relationships on the basis of de factos.
Thus homosexuals in the Defence Force might be entitled to married quarters. Recently the NSW Law Reform Commission recommended that homosexual couples be allowed to adopt children.
One tactic arising out of this case which will need to be closely watched is the use of the word ‘carer’. Just as the word ‘partner’ is rapidly replacing ‘spouse’, thereby equating de facto relationships with marriage, so the word ‘carer’ could increasingly be used to replace ‘parent’ - thereby further undermining the status of the traditional family.