Same-Sex: Same Entitlements Report
Chapter 1. Introduction
- 1.1 Is there really discrimination against same-sex couples and their children?
- 1.2 How many people does the discrimination affect?
- 1.3 How do same-sex couples feel about discrimination in the area of financial entitlements?
- 1.4 How easy is it to fix the discrimination?
- 1.5 Do you need same-sex marriage to remove discrimination in financial and work-related entitlements?
- 1.6 What is the structure of this report?
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground...
International Covenant on Civil and Political Rights,
In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
Convention on the Rights of the Child, article
The right to non-discrimination, equality before the
law and the protection of the best interests of the child are among the most
fundamental of all human rights principles. Yet there are a raft of laws on
Australia’s books which deny basic financial and work-related entitlements
to gay and lesbian couples and their children.
Appendix 1 to this report sets out a long list
of federal laws which clearly discriminate against same-sex couples in the most
ordinary areas of every day life. All these laws breach the International
Covenant on Civil and Political Rights (ICCPR) and some of them breach the Convention on the Rights of the Child (CRC).
Same-sex couples and families get
fewer leave entitlements, less workers’ compensation, fewer tax
concessions, fewer veterans’ entitlements, fewer health care subsidies,
less superannuation and pay more for residential aged care than opposite-sex
couples in the same circumstances.
couples are denied these basic financial and work-related entitlements because
they are excluded from the definitions describing a couple in all the federal
laws in Appendix 1. Federal law after federal law defines a
‘partner’ or a ‘member of a couple’ or a
‘spouse’ or a ‘de facto spouse’ as a person of the
Further, children in same-sex
families may suffer because one or both of their parents are denied the
financial and work-related entitlements which are intended to help families live
The 2001 Australian census suggests that there are
approximately 20 000 same-sex couples living together in the same
home. Of those 20 000 couples,
approximately 20% of lesbian couples, and 5% of gay male couples are living with
However, the Australian Bureau of Statistics
suggests that the figure of 20,000 underestimates the true number of same-sex
couples. And several surveys
suggest that there are many more gay male couples with children than the 5%
suggested in the census – some suggest the figure is closer to
the precise figures, it is quite clear that discrimination against same-sex
couples and their children affects many people in the Australian community.
The Inquiry spent more than three months travelling
around Australia holding public hearings and community forums to hear, first
hand, about the impact of discriminatory laws on gay and lesbian couples.
Those public consultations, and some of the
680 written submissions received by the Inquiry, clearly describe the financial
and emotional strain placed on gay and lesbian couples who are trying to live
their lives like everybody else in the community.
One Victorian expressed his frustration as
The inequalities embedded in current legislation are
obvious and are inexcusable. ‘Understanding, tolerance and
inclusion’ are said to be values of the Australian community. Current
legislation tells another
lesbian couple from Adelaide said the following:
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
lesbian parent in Sydney made a similar plea:
I am not a second class citizen and [I] resent my family
and I being treated as such. All I ask is to be treated equally, no more and no
less than any other Australian. Just
gay doctor put it like this:
I am a first-class taxpayer but a second-class
easy is it to fix the discrimination?
It is simple to remove discrimination against same-sex
couples in the area of financial and work-related entitlements: change the
definitions in the laws listed in Appendix 1.
There is no need to rewrite federal tax
legislation, superannuation legislation, workers’ compensation
legislation, employment legislation or any other major area of federal financial
There just needs to be some
minor changes to a few definitions at the front of each relevant piece of
The definitions describing a de
facto couple should include opposite-sex and same-sex couples alike. And the
terms describing the relationship between a child and his or her parents should
include same-sex and opposite-sex parents alike.
Chapter 18 on Findings and Recommendations and
Appendix 1 to this report provide further guidance on how this can be
you need same-sex marriage to remove discrimination in financial and
Many submissions to the Inquiry discuss the importance
of formal recognition of same-sex relationships through registration schemes,
civil unions or marriage. Other submissions to the Inquiry express opposition to
The Inquiry understands
that for some people in same-sex relationships, formal recognition is not only a
path to legal rights and equality, but an important symbolic expression of love
between two people.
However, the focus of this
Inquiry has been to make sure that all couples in Australia have
the same access to basic entitlements like tax concessions, superannuation death
benefits, carer’s leave, workers’ compensation, veterans’
entitlements and aged care.
couple does not have to marry to get those entitlements; nor should a same-sex
couple have to marry.
So, while same-sex
marriage or civil unions could assist those couples who choose to formalise
their relationship in that way, this Inquiry has focussed on ensuring that all couples have all the same rights whether or not they are married.
This report starts by setting out the Inquiry’s
methodology in Chapter 2 and the human rights of people in same-sex couples, and
their children, in Chapter 3.
Chapter 4 on
Recognising Relationships summarises how federal laws regarding financial and
work-related entitlements define a person in a couple. It describes how state
and territories have reformed their laws to remove discrimination. It then
briefly discusses the potential impact of formal relationship recognition
schemes in the area of financial entitlements. Finally, Chapter 4 proposes a new
definition of ‘de facto relationship’ for all federal laws, which
would remove discrimination against same-sex
Chapter 5 on Recognising Children
explains how family law defines a parent-child relationship when a child is born
to a same-sex couple. It explains how those legal relationships impact on who is
a ‘child’ in laws regarding financial and work-related entitlements.
It then sets out what should change to remove the
Chapters 6 – 15 describe
the impact of discriminatory definitions in the following areas of financial and
Chapter 6 Employment
Chapter 7 Workers’ Compensation
Chapter 8 Tax
Chapter 9 Social Security
Chapter 10 Veterans’ Entitlements
Chapter 11 Health Care
Chapter 12 Family Law
Chapter 13 Superannuation
Chapter 14 Aged Care
Chapter 15 Migration
table of contents to each chapter summarises which entitlements are, or are not,
available to a same-sex couple or family. Each chapter also has a list of
legislation at the end which sets out the definitions that need to change to
remove the discrimination identified throughout the chapter.
Chapter 16 sets out a miscellaneous list of
additional legislation which may discriminate against same-sex couples and
Chapter 17 briefly discusses general
homophobia in the community and discrimination on the basis of gender identity.
Those issues did not fall directly within the Inquiry’s Terms of
Reference, but they were of substantial concern to several people making
submissions and speaking at community forums.
Chapter 18 summarises the Inquiry’s
findings and recommendations.
Appendix 1 sets
out a comprehensive list of legislation which must be amended to remove
discrimination against same-sex couples and their children in federal law. This
is an accumulation of the lists at the end of each of Chapters
Appendix 2 sets out a small
selection of stories describing the impact of discrimination on same-sex couples
Appendices 3–5 provide
details on who made submissions, the Inquiry’s public hearings and the
Inquiry’s community forums.
 Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex
Couple Families’, p142
 Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex
Couple Families’, p142