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Background

Scope of the Anti Discrimination Act –Response to the Recommendations

Extension of Employment/Work Environment

Marital Status

Exceptions and Exemptions

Superannuation

Other Recommendations

DRAFT ANTI-DISCRIMINATION BILL 1999

Conclusion

MAJOR REPORT - April 2000

The NSW Anti-Discrimination Act

PART B - The Scope of the Anti-Discrimination Act –
Response to the Recommendations

4. Marital Status

4.1. Recognition of Same Sex Relationships

We support the changes to marital status to ensure that cohabiting same sex couples receive protection [Recommendation 33].

In our submission the change is long overdue and consistent with the recent changes in June 1999 in New South Wales under Property (Relationships) Legislation Amendment Act which give legal recognition to same sex relationships. The recommendations in particular address the anomaly that the Act, while proscribing discrimination on the grounds of homosexuality, only recognises cohabitation, with a person of the opposite sex.

The proposed change also addresses the inequity demonstrated in Wilson v Qantas Airways Limited [pars.5.51, 5.52] in which the EOT dismissed conduct which clearly was discriminatory on the grounds of homosexual union. Due to the definitional limitation of marital status (which did not include a same sex relationship) and its interpretation of discrimination on the grounds of homosexuality, discrimination could not be made out.

We support the general approach that same sex relationships be placed on equal footing with relationships involving members of the opposite sex. We agree that, in extending the protection to same sex relationships, the term “marital status” should be changed to either “relationship status” (as recommended in the Report of the NSW Legislative Council Standing Committee on Social Issues) or "domestic status”
[Recommendation 32], particularly if the term marital status is inappropriate in the light of the Marriage Act 1961 (Cth) [par.5.54]. This also prevents some confusion as the gist of the change being made is that those covered by the Act are required to treat same sex de facto couples in the same way that they are
already required to treat heterosexual de factos. It does not affect marriage in any way.

4.2. Implementation of Change to Definition

In putting this recommendation into place, our preference would be that those in de facto relationships, both same and opposite sex, be specifically included in the definition of marital status rather than subsumed into the category of being “in cohabitation with another person in a domestic relationship other than marriage” [clause 18(1) of the draft Bill]. Specifically recognising these relationships increases the symbolic and educational value of the change. It also ensures that the category is defined and conscious choices made about its scope.

We note that domestic relationship is currently undefined in the draft Bill and may be interpreted as wider than de factos although the report only discusses and recommends the inclusion of cohabiting couples. We also note this may not extend the scope of the Bill significantly given other provisions. However, this is not certain. Defining this category as “the status or condition of being in cohabitation with a person of the same or opposite sex” in accordance with the current definition or as “living together as a couple” in accordance with the Property (Relationships) Act 1999 would ensure explicit recognition of de facto couples of both the same and opposite sex while reassuring anyone concerned that the category of domestic relationship may be wider than intended.