Communication No. 941/2000: Australia, CCPR/C/78/D/941/2000, Mr. Edward Young v. Australia, September 18, 2003

The facts as presented by the author

2.1 The author was in a same-sex relationship with a Mr. C for 38 years. Mr. C was a war veteran, for whom the author cared in the last years of his life. He died on 20 December 1998, at the age of 73. On 1 March 1999, the author applied for a pension under section 13 of the Veteran’s Entitlement Act (“VEA”) as a veteran’s dependant. On 12 March 1999, the Repatriation Commission denied the author’s application in that he was not a dependant as defined by the Act. In its decision the Commission sets out the relevant legislation as follows:

Section 11 of the Act states: “dependant, in relation to a veteran (including a veteran who has died), means (a) the partner…”Section 5E of the Act defines a “partner, in relation to a person who is a “member of a couple”, [as] the other member of the couple.”The notion of couple is defined in section 5E(2): “a person is a “member of a couple” for the purposes of this Act if:

(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or

(b) all of the following conditions are met:

1. the person is living with a person of the opposite sex (in this paragraph called the partner);
2. the person is not legally married to the partner;
3. the person and the partner are, in the Commission’s opinion (…….), in a marriage-like relationship;
4. the person and the partner are not within a prohibited relationship for the purposes of Section 23 B of the Marriage Act 1961.”

The decision reads “The wording of Section 5E (2) (b) (i) – the text that I have highlighted – is unambiguous. I regret that I am therefore unable to exercise any discretion in this matter. This means that under legislation, you are not regarded as the late veteran’s dependant. Because of this you are not entitled to claim a pension under the Act.”

The author was also denied a bereavement benefit under the Act, as he was not considered to be a “member of a couple”.

2.2 On 16 March 1999, the author applied to the Veterans Review Board (“VRB”) for a review of the Commission’s decision. On 27 October 1999, the Board affirmed the Commission’s decision, finding that the author was not a dependant as defined by the Act. In its decision the Board outlines the legislation as above and considers that it “has no discretion in its application of the Act and in this case it is bound to have regard to Section 11 of the Act. Hence, under the current legislation, the Board is required to affirm the decision under review in relation to the status of the applicant”.

Consideration of the Merits

10.4 The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. It transpires from the contested sections of the VEA that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a “marriage-like” relationship) fulfill the definition of “member of a couple” and therefore of a “dependant”, for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced.