SummaryMr Edward young ,the author, lived with a Mr. C who was a war veteran as lovers. After Mr.
C’s death, the author applied for a pension under of the Veteran’s Entitlement Act (VEA) as a veteran’s dependant.However,his application was rejected both by the Repatriation Commission and the Veterans Review Board (“VRB”) because the author was not a dependant as defined by the Act.Mr Young filed a complaint to the Human Rights committee.The final decision was that Australia (the state party) had breached article 26 of the International Covenant on Civil and Political Rights .
state’s argumentThere is no breach in author’s right according to article 1 of the Optional Protocol because author’s sexual orientation or the sexual orientation of Mr. C is not the indicator whether the pension shall be granted.There are 2 reasons to support this argument.Firstly,as Mr C’s cause of death is not by war ,According to the VEA,the author cannot receive the pension has nothing to do with the author’s or Mr C’s sexual orientation. Therefore,regardless of Mr. C’s partner sexual orientation (either heterosexual or homosexual) ,the pension cannot be granted under subsection (1).
Secondly.To consider whether the right to pension benefit can be received,the application requires evidence of relationships which is the copy of marriage certificate.However,the only prove provided by the author is his name as Mr. C’s partner on his death certificate which is not sufficient to grant a pension benefit.As a result,the author’s application is rejected which the State party claimed that it is not a breach under article 26.The author’s argumentThe author claims that the state party( both the Repatriation Commission and the VRB) refuse has his application for the pension based on sexual orientation which is considered to be a violation under Article 26 according to the UN International Covenant on Civil and Political Rights 1966.
The first reason is because even if he meets all other the conditions required by the VEA ,he still cannot be able to receive a pension because it is impossible for the author to meet the condition of the term “dependant” which includes only to the extent of opposite sex relationship according to the marriage act 1961. Moreover,the author argues that nothing in the death certificate denies his relationship with Mr. C or amounts to evidence that there was no such relationship. For the second reason,the State party discriminates against him by having heterosexual couples the ability to seek such a pension under same criteria which considered to be unequal treatment under the law by being excluding on the basis of his sexuality even if he cannot establish that he meets the other criteria for a pension as the author also satisfy the condition that Mr C is died from a war cause.Decision analysison admissibilityThe Committee rejects the State party’s argument concerning admissibility of the communication on the ground that the author is not a victim because,according to the law, the author cannot granted the pension even he satisfy all the criteria as he was not living with a member of the opposite sex.
This means that the author’s sex or sexual orientation matters whether the pension can be granted or not. on merit As discrimination based on sexual orientation is a prohibited ground by the covenant,The committee has to decide whether by refusing a pension to the author because he was of the same sex partner of Mr. C under the VEA the State party has breached the right under article 26 of the Covenant. According to the VEA,as he cannot enter into marriage the author it not Mr C’s opposite-sex partner and is not recognized as a cohabit couple of Mr C,he cannot receive pension benefit due to his sex or sexual orientation.In this case,as Mr C died in a war cause which satisfied the condition in the VEA,the state party has no reason or justification to grant a benefit to a unmarried hetersexual couple and doing the opposite to same-sex partner despite the fact that they both satisfy the same conditions under the law. It resulted that the committee view this as a violation under article 26 of the covenant as the state party treat the author differently from other hetersexual unmarried couple based on his sex or sexual orientation.
contribution to international human right and general international lawIn respect of the general international law,as the Australia had ratified the International Covenant on Civil and Political Rights and the Optional Protocol to the International Covenant on Civil and Political Rights and a party of the treaty, the state is bound to prevent violations of any of the rights stated in the Covenant.In the future, it might be possible that the content of this treaty in regarding protection to discrimination based on sexual orientation (unequal treatment between same-sex couples and opposite-sex couples) may become customary law and also non-parties of the treaty has to be bound by using this case as grounds to grant benefit for other same-sex couples who face the similar problems. In respect of international human rights,this case become one of the steps to make human rights in terms of equality before the law and equal protection under the law in regard of right of same-sex couples universal in the future.This does not cover only same sex marriage but also other benefits the opposite-sex couples enjoy such as right to grant a pension according to the case.In other words, sexual orientation cannot be used for basis of unequal treatment that same-sex couples do not receive the same right as the opposite-sex couple in same situations and make sure that the victims get protected just as in other cases like sex or racial discrimination.