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Same-Sex: Community Guide

Same-Sex: Same Entitlements Report


 

Community Guide

Same-Sex: Same Entitlements Report 2007 Logo

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Same-Sex: Same Entitlements

A community guide to the National Inquiry into

Discrimination against People in Same-Sex Relationships: Financial and

Work-Related Entitlements and Benefits

INTRODUCTION

At least 20 000 same-sex couples in Australia experience systematic

discrimination on a daily basis.

Fifty-eight federal laws deny same-sex

couples and their children basic financial and work-related entitlements which

are available to opposite-sex couples and their children.

During 2006,

the Australian Human Rights Commission's (then known as the Human Rights and Equal Opportunity Commission) Same-Sex: Same

Entitlements Inquiry travelled around Australia holding public hearings and

community forums to hear, first hand, about the impact of discriminatory laws on

same-sex couples and their children.

The public consultations, and some

of the 680 written submissions received by the Inquiry, clearly describe the

financial and emotional strain placed on same-sex couples who are trying to

enjoy their lives like everybody else in the community.

This community

guide sets out just a small sample of the federal financial and work-related

entitlements and benefits which are denied to same-sex couples and their

children.

For a more comprehensive analysis of the federal laws which

discriminate against same-sex families and further information on how those laws

impact on same-sex couples and their children, please go to the Inquiry’s

main report at: www.humanrights.gov.au/samesex.

“I am a first-class taxpayer but a second-class

citizen.”

INQUIRY FINDINGS AND

RECOMMENDATIONS

The Same-Sex: Same Entitlements Inquiry finds that there are 58

federal laws which discriminate against same-sex couples and their children.

The Inquiry recommends simple amendments to those laws; just change the

definitions describing de facto relationships to include same-sex couples.

The Same-Sex: Same Entitlements Inquiry also recommends changes

to federal, state and territory laws to recognise the relationship between a

child and both parents in a same-sex couple. This would better protect the best

interests of the child.

People who gave evidence to the Inquiry in Sydney

People who gave evidence to the Inquiry in Sydney: Andreas Ohm and Jim Woulfe, Michelle McCormack and Lynne Martin with son Tom, Michael Burge, Maria Vidal and Susan Everingham with daughter Antonia, and Jiro Takamisawa. Photograph by Sahlan Hayes / Fairfaxphotos.

DISCRIMINATION IN

EMPLOYMENT

Same-sex couples do not always enjoy the same employment conditions as

opposite-sex couples. This can affect the economic livelihood, work security and

family life of same-sex couples and their children.

For example, same-sex couples are not guaranteed the following basic work

entitlements under federal law:

  • parental leave
  • carer’s leave
  • compassionate leave
  • travel entitlements

“My (same-sex) partner suffers a long term debilitating illness and

as I am the sole wage earner in our household/family it is very difficult for me

to take time off to care for her...when I do need to stay home to care for her,

I have to use my annual leave as she is not legally recognized as my partner,

therefore I am not entitled to carer’s

leave...”

DISCRIMINATION IN WORKERS’

COMPENSATION

Usually the partner of a person who has been injured

or killed in a workplace accident can expect financial support through

workers’ compensation payments.

However, the same-sex partner of a

worker covered by Comcare and other federal workers’ compensation schemes

is not entitled to lump sum workers’ compensation death benefits. Nor is a

same-sex partner taken into account when calculating the federal workers’

compensation sums available to an incapacitated employee.

“An opposite-sex partner of an employee covered by a federal

workers’ compensation scheme has the security of knowing that he or she

will be financially supported if his or her partner dies or is injured on the

job. A same-sex partner has no such security.”

gay couple

DISCRIMINATION IN TAX BENEFITS

Tax is one

of the main financial expenses facing any family in Australia.

Same-sex

couples will often pay more tax than opposite-sex couples because they are not

eligible for a range of rebates and tax concessions. Further, the same-sex

parents of children may miss out on tax benefits intended to help

families.

For example, same-sex couples are not entitled to the following

tax concessions:

  • dependent spouse tax offset
  • tax offset for partner’s parent
  • housekeeper tax offset
  • child-housekeeper tax offset
  • zone tax offset for a partner
  • capital gains tax concessions when transferring property to a partner
  • fringe benefits tax exemptions for a partner

“We are an average suburban family. We are working hard and

contributing to our community. We don’t want special treatment –

just what others can expect from their legal and social community. Our rights

are denied simply because of who we love. We just want

equality.”

Lesbian couple with child, photo my Michaela Olijnyk

Photograph by Michaela Olijnyk.

DISCRIMINATION IN SOCIAL SECURITY BENEFITS

Social security is a safety net for people who are unable to financially

support themselves.

However, social security laws treat same-sex couples

differently to opposite-sex couples.

Sometimes the differential

treatment has a negative impact on same-sex families. For example, a same-sex

partner is not entitled to the following benefits:

  • partner allowance
  • bereavement benefits
  • widow allowance
  • concession card benefits
  • gaoled partner’s pension

Other times the differential

treatment benefits a same-sex couple. This is because the law treats the couple

as two single people, so a same-sex partner can access benefits normally

available to singles.

Several same-sex couples told the Inquiry that they

would willingly trade the advantages in social security law for equal treatment

under all federal laws.

“We are a family

unit—our family acknowledges it, our work colleagues acknowledge it and

our community acknowledges it; why then, can’t the Australian Government

do the same by affording us the same rights as heterosexual de facto

couples?”

mature gay male couple smiling

DISCRIMINATION IN VETERANS’ ENTITLEMENTS

Australian Defence Force veterans and their families are generally entitled

to a range of special benefits and entitlements in recognition of their military

service.

However, many of those benefits are not available to veteran same-sex couples

and their children.

For example, the same-sex partner of a veteran cannot access the following

benefits:

  • War Widow/Widower’s Pension
  • Bereavement Payment
  • Gold Repatriation Card
  • Income Support Supplement
  • Partner Service Pension
  • military compensation

“Gay war veterans laid down their lives or were injured for our

country. They protected us. We should protect them and their families. Why

are their families less deserving of being afforded this protection?”

DISCRIMINATION IN HEALTH CARE SUBSIDIES

The

Medicare and Pharmaceutical Benefits Scheme (PBS) Safety Nets provide extra

subsidies to families with high medical costs.

However, a same-sex

couple will have to spend much more on doctors visits and medicines than an

opposite-sex couple to qualify for the extra subsidies. This is because the law

does not recognise a same-sex couple as a family.

“The exclusion of same-sex couples financially disadvantages an

already marginalised group, has a negative impact on dependent children of

same-sex couples and is out of touch with community values. Every couple living

together in a domestic relationship should have access to the Safety Net,

regardless of their sexuality.”

Because we are not recognised as a couple for the Medicare Safety

Net, we are required to meet out-of-pocket expenses as two single people....We

are also unable to register as a couple for the pharmaceutical benefits scheme

and once again pay twice the amount a heterosexual couple pays for

medications.”

DISCRIMINATION IN FAMILY

LAW

A separating same-sex couple must go to state or territory

courts to resolve property division issues and the federal Family Court to

resolve child-related issues. This means that same-sex couples cannot access the

more flexible federal property settlement schemes and must pay two sets of court

costs if they have children.

Some separating same-sex parents will also

have difficulty pursuing child support because the laws do not recognise a

lesbian co-mother or gay co-father as a parent.

“If separation occurs, my daughter could be left to totally

supporting herself and her daughter...Ironically even fathers who don’t

pay maintenance are still recognised as parents.” (parent of a lesbian

mother)

“In a same-sex relationship where there’s children concerned,

if the biological mother does pass away, the child does not automatically get to

stay with the non-biological parent...If one member of the biological

mother’s family comes forth to take that child out of that house, that

child is gone. You would have to fight it in the Family Court – it is not

a right of ours for the child to stay where it has grown up.”

DISCRIMINATION IN SUPERANNUATION ENTITLEMENTS

Superannuation is one of the main ways for a couple to save for

retirement and is often a person’s largest asset apart from the family

home. Most people expect that their superannuation entitlements will be

inherited by their partner or children when they die. However, this is not

always the case for same-sex couples and families.

For example, a

same-sex partner cannot always access the following superannuation benefits and

superannuation tax concessions:

  • superannuation contributions splitting
  • superannuation spouse tax offset
  • lump sum or reversionary direct death benefits
  • death benefits anti-detriment payments

In particular, the

same-sex partner of a federal government employee cannot access direct death

benefits under a federal superannuation scheme, unless the employee joined the

public service after 1 July 2005.

“[W]e would like to equalise the amounts

saved in superannuation. The ability to do this by splitting superannuation

contributions would be of great benefit to our retirement savings. The

potential tax saving is over $20,000 at retirement. We are unable to take

advantage of this initiative as it is not available to same-sex

couples.

DISCRIMINATION IN AGED

CARE FEES

When people enter an aged care facility they generally

have to pay certain daily fees and bonds to fund their care and residence. The

amount of those fees is calculated by applying assets and income tests.

A same-sex couple is treated differently to an opposite-sex couple under

these tests. In particular, the home of a same-sex couple is not exempted from

the assets test as it is for an opposite-sex couple.

As a result, a

person in a same-sex couple will generally pay more for residential aged care

than a person in an opposite-sex couple.

“I have recently started thinking about what will happen if or when

one of us requires some sort of assisted accommodation or nursing home care and

the prospect of that alienation in our elderly years because we will no longer

be recognised as a couple is distressing to say the

least.

“[W]here a member of an opposite-sex couple is incapacitated and

requires nursing home care, the means test for an accommodation bond excludes

the family home. However, if one member of a same-sex couple requires

residential nursing care, then that person’s share of the family home is

treated as an asset...if either of us were ever incapacitated, we would face the

possibility of being forced to sell our home out from under the other

one...”

DISCRIMINATION IN

ACCESS TO VISAS

Same-sex couples are denied access to the full-range of visas available

to opposite-sex couples.

There is only one visa available to same-sex

couples who wish to migrate to Australia as a couple – the Temporary

Business (Long Stay) 457 visa.

There is also only one category of visa

available to the same-sex partner of an Australian citizen or permanent resident

– the Interdependency visa.

As a result, there is additional

expense and disruption to the lives of same-sex couples wanting to live together

in Australia.

“Because we are not a young couple...I had great difficulty in

getting a visa in my own right, and we had to rely on a series of tourist visas,

failed visa applications and appeals to stay together until he eventually gained

permanent residency and I could apply as his dependent partner... For more than

five years I was unable to work, and had to leave the country regularly, never

knowing if I would be allowed back. This not only imposed a great strain on our

relationship, but also a considerable financial

burden.”

mature lesbian couple smiling

Get in contact

For more information

about this Inquiry please go to: www.humanrights.gov.au/samesex.

To order

copies of the Same-Sex: Same Entitlements Report or for additional copies

of this community guide, call our Publications Officer on (02) 9284 9600 or

email publications@humanrights.gov.au.

If

you’d like to share your thoughts, ideas or feedback on the issues raised

in this community guide or the full Same-Sex: Same Entitlements Report, a

feedback form is available on our website at: www.humanrights.gov.au/samesex.

For free advice on discrimination and your rights, or to make a

complaint about discrimination because of sexual orientation or other grounds,

call our Complaints Information Line on (02) 9284 9888, 1300 656

419 or TTY 1800 620 241. Information about making or responding to a complaint

is available at www.humanrights.gov.au.

You can also email us on complaintsinfo@humanrights.gov.au.