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Same-Sex: Same Entitlements: Chapter 10

Same-Sex: Same Entitlements Report


Chapter 10. Veterans’

Entitlements

Download Chapter 10: [ PDF] [ Word ]

10.1 What

is this chapter about?

This chapter focuses on discrimination regarding the

entitlements available to veterans of the Australian Defence Forces who have a

same-sex partner or children.

These

entitlements are provided in the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlements Act) and the Military Rehabilitation and

Compensation Act 2004 (Cth) (Military Compensation Act).

A number of submissions to the Inquiry

highlighted the discrimination against same-sex couples under this

legislation.[1]

The

main cause of the discrimination lies in the definitions of

‘partner’ and ‘member of a couple’, which exclude a

person in a same-sex relationship. The definitions of ‘widow’,

‘war widow’, ‘widower’ and ‘war widower’

also deny benefits to the same-sex partner of a deceased veteran.

The children of a veteran in a same-sex couple

may be able to access some entitlements because of slightly broader definitions

relating to children. However, those definitions do not always include the child

of a lesbian co-mother or gay co-father.

This

chapter explains which of the various entitlements available to veteran

opposite-sex couples are denied to veteran same-sex couples and their children.

The chapter discusses how discrimination against same-sex couples in the

veterans’ entitlements laws breaches Australia’s human rights

obligations. The chapter then makes recommendations on how to amend the law to

avoid future discrimination.

Specifically, this

chapter addresses:

  • Are same-sex couples and their children recognised under

    veterans’ entitlements legislation?

  • Can the survivors of a deceased veteran access death

    benefits?

  • Can the same-sex partner of a living veteran access

    entitlements?

  • Do veterans’ entitlements laws breach human

    rights?

  • How should the law be changed to eliminate future

    breaches?

10.2 Are

same-sex couples and their children recognised under veterans’

entitlements legislation?

The Veterans’ Entitlements Act gives

entitlements to people who have rendered ‘operational service’. This

includes those who have seen active service in war-time or in peace-keeping

missions or have been involved in eligible ‘defence service’ work

and suffered an injury or death related to that

service.[2]

The

Military Compensation Act provides workers’ compensation and other

benefits for current and former members of the defence force who suffer disease

or service injury. It also provides compensation for the dependants of some

deceased

members.[3]

Same-sex

couples are ineligible for some payments because both the Veterans’

Entitlements Act and the Military Compensation Act fail to recognise a same-sex

partner in the same way as they recognise an opposite-sex

partner.

The legislation may also exclude the

child of a lesbian co-mother or gay co-father in some situations.

10.2.1 A

same-sex partner is not recognised under veterans’ entitlements

legislation

The Veterans’ Entitlements Act and the Military

Compensation Act use slightly different terms to determine when a person’s

partner may be entitled to benefits. However, both of them exclude a same-sex

partner.

(a) ‘Partner’

and ‘member of a couple’ exclude a same-sex partner

The Veterans’ Entitlements Act defines a

‘partner’ as a person who is the other ‘member of a

couple’.[4] A ‘member of a

couple’ can only be a person of the ‘opposite

sex’.[5]

Similarly, the Military Compensation Act

defines a ‘partner’ to be ‘a person of the opposite sex to the

member’.[6]

Thus,

both these definitions exclude a same-sex

partner.

The Veterans’ Entitlements Act

also requires that a ‘member of a couple’ be in a

‘marriage-like

relationship’.[7] The criteria

used to determine whether someone is in a ‘marriage-like

relationship’ do not necessarily exclude a same-sex

couple.[8] However, as discussed in

Chapter 4 on Recognising Relationships, these words also imply that the couple

must be of the opposite sex. And in any event, under the legislation being an

opposite sex ‘member of a couple’ is a prerequisite to being in a

‘marriage-like relationship’.

(b) ‘Widow’,

‘war widow’, ‘widower’ and ‘war widower’ in

the Veterans’ Entitlements Act exclude a same-sex partner

The terms ‘widow’, ‘war

widow’, ‘widower’ and ‘war widower’ in the

Veterans’ Entitlements Act are all gender specific and refer to the

‘partner’ of the deceased

person.[9]

Since a ‘partner’ must be of the

opposite sex, a same-sex (war) widow or (war) widower will be excluded from

these definitions.

(c) ‘Dependant’

in the Veterans’ Entitlements Act excludes a same-sex

partner

The Veterans’ Entitlements Act defines a

‘dependant’ in relation to a veteran (including a veteran who has

died) to include the ‘partner’, ‘widow’ and

‘widower’ of a

veteran.[10] All of those terms

require that a person be of the opposite sex and will therefore exclude a

same-sex partner.

A ‘dependant’ can

also be a ‘non-illness separated spouse’. But that term only

includes a person who is or was married to the

veteran.[11]

(d) ‘Dependant’

in the Military Compensation Act excludes a same-sex partner

A ‘dependant’ in the Military Compensation

Act includes the ‘member’s

partner’.[12] Since the term

‘partner’ refers exclusively to a member of an opposite-sex couple,

a same-sex partner cannot be the ‘dependant’ of a veteran.

10.2.2 Children

of a same-sex couple may be recognised under veterans’ entitlements

legislation

Chapter 5 on Recognising Children notes that when

children are born to a lesbian or gay couple their parents may include a birth

mother, lesbian co-mother, birth father or gay

co-father(s).[13]

There are many laws which focus only on the

relationship between a child and his or her birth parent. When this occurs, the

child of a same-sex couple may be at a disadvantage because the child of the

lesbian co-mother or gay co-father is

ignored.

The relevant definitions in the

Veterans’ Entitlements Act and the Military Compensation Act seem to

include all of the birth mother, birth father, lesbian co-mother and gay

co-father. However, as discussed in Chapter 5, it may be more difficult for a

lesbian co-mother or gay co-father to prove her or his entitlement to those

benefits than it would be for a birth mother or birth father.

(a) ‘Dependant’

in the Veterans’ Entitlements Act may include the child of a same-sex

couple

The

definition of a ‘dependant’ in the Veterans’ Entitlements Act

includes a child of the

veteran.[14]

The

Veterans’ Entitlements Act defines a ‘child’ to be a person

who has not turned 16 or who is aged between 16 and 25 and is

studying.[15] This definition does

not say anything about the relationship between the adult and the child, so

could include any person up to the age of

25.

The Veterans’ Entitlements Act

defines a ‘child of a veteran’ to include a child of the veteran

‘mother’ or ‘father’, an adopted child and ‘any

other child who is, or was immediately before the

death of the veteran, wholly or substantially

dependent on the veteran’.[16]

As

discussed in Chapter 5 on Recognising Children, it is likely that the reference

to a ‘mother’ or ‘father’ includes only the birth mother

or birth father. However, the child of a lesbian co-mother or gay co-father may

be included if the child is ‘wholly or substantially dependent’ on

them.

A child will be ‘wholly or

substantially dependent on a veteran’ where that ‘veteran is, under a law of the Commonwealth or of a State or Territory, liable to

maintain a child’.[17]

Thus,

if the child can prove that the veteran is liable to maintain him or her by law,

then he or she may be considered a ‘child of a veteran’.

In the Inquiry’s view, where a veteran

lesbian co-mother or gay co-father has a parenting order in relation to a child,

that child will likely qualify as the ‘child of a

veteran’.[18]

(b) ‘Dependant’

in the Military Compensation Act may include the child of a same-sex

couple

In the Military Compensation Act, a

‘dependant’ is defined as a person who is ‘wholly or partly

dependent’ on a member (or would be if the member had not been

incapacitated) and includes:

(a) any of the following persons

  • (i) the member’s partner;
  • (ii) the member’s father, mother, step-father or

    step-mother;

  • (iii) the father, mother, step-father or step-mother of

    the member’s partner;

  • (iv) the member’s grandfather or grandmother;
  • (v) the member’s son, daughter, step-son or

    step-daughter;

  • (vi) the son, daughter, step-son or step-daughter of the

    member’s partner;

  • (vii) the member’s grandson or grand-daughter;
  • (viii) the member’s brother, sister, half-brother

    or half-sister; or

(b) a person in respect of whom the member stands in the

position of a parent; or

(c) a person who stands in the position of a parent to

the member.[19]

As discussed in Chapter 5 on

Recognising Children, the reference to a ‘mother’,

‘father’, ‘daughter’ or ‘son’ in clause (a)

is likely to include only the birth mother, birth father, birth daughter or

birth son or an adoptive parent or child.

Further, a person can only be a

‘step-father’, ‘step-mother’, ‘step-son’ or

‘step-daughter’ in a same-sex family if the lesbian co-mother or gay

co-father marries the birth parent. This is not currently possible for a

same-sex couple.

However, clauses (b) and (c)

refer to a relationship where a person ‘stands in the position of a

parent’.

In the Inquiry’s view,

where a veteran lesbian co-mother or gay co-father has a parenting order in

relation to a child, he or she will be ‘standing in the position of a

parent’ in relation to that

child.[20] However, in the absence

of a parenting order, it is unclear what proof is required.

(c) ‘Dependent

child’ in the Veterans’ Entitlements Act may include the child of a

same-sex couple

In addition to the definition of ‘child’

and ‘child of a veteran’, the Veterans’ Entitlements Act uses

the term ‘dependent child’ in relation to some benefits and

entitlements.

The definition of

‘dependent child’ in the Veterans’ Entitlements Act adopts the

definition used in the Social Security Act 1991 (Cth) (Social Security

Act).[21]

Chapter 9 on Social Security explains that a

‘dependent child’ may include the child of a lesbian co-mother or

gay co-father, particularly if one or the other has a parenting order regarding

that child. It will also include the child of a birth mother or birth

father.[22]

(d) ‘Eligible

young person’ in the Military Compensation Act may include the child of a

same-sex couple

The Military Compensation Act confers some

entitlements to an ‘eligible young person’ who is ‘wholly

dependent on a member’.

An

‘eligible young person’ is a person under 16, or between 16 and 25

and studying full time.[23] And an

‘eligible young person’ will be ‘wholly dependent’ on

the member if the young person is living with the

veteran.[24]

These

definitions may include a person up to the age of 25 who is living with any of a

birth mother, birth father, lesbian co-mother or gay co-father.

10.3 Can

the survivors of a deceased veteran access death benefits?

There are a large range of entitlements available to a

veteran during his or her life, and to his or her surviving family after death.

A surviving same-sex partner of a veteran

cannot access those entitlements because of the various definitions under the

legislation.

However, the child of a veteran

will generally be able to access those entitlements, even if the veteran is not

the birth mother or birth father.

A same-sex

partner cannot get the entitlements listed below:

  • War Widow/Widower’s Pension
  • Income Support Supplement
  • Bereavement Payments
  • Funeral benefits
  • Gold Repatriation Health Card
  • Military

    compensation.

The following sections

explain why this discrimination occurs, and the financial impact of that

discrimination.

10.3.1 A

veteran’s surviving same-sex partner cannot access the War

Widow/Widower’s Pension

If

a veteran dies as a result of war service or eligible defence service, the

surviving ‘partner’, as a ‘dependant’, is entitled to

the War Widow/Widower’s Pension and a variety of other benefits under the

Veterans’ Entitlements

Act.[25]

(a) A

same-sex partner is not a ‘dependant’

As discussed in section 10.2.1 above, a same-sex

partner is not a ‘dependant’ of a deceased veteran under the

Veterans’ Entitlements Act. Therefore, he or she will not be eligible to

receive the War Widow/Widower’s Pension or other benefits available to an

opposite-sex partner of a same-sex couple.

(b) Negative

financial impact on same-sex partners

The War Widow/Widower’s Pension amounts to a

payment of $537.10 per

fortnight.[26] A same-sex partner is

not eligible for this payment.

(c) Negative

personal impact on same-sex partners

Mr Walter Lee states his view about discrimination

against the surviving same-sex partner of a veteran as follows:

Partners of those who have served in the Australian

Defence Forces are usually entitled to receive a war widow/er’s pension

when their partner dies.

However, this does not apply to same-sex partners...

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?

They did not fight solely to protect those in same-sex

relationships; they fought to protect all of us, regardless of our sexual

preference. It is ironic that they fought to even protect those who would come

to institute policies which would deliberately discriminate them and their

families...

Many of them fought and gave their lives to make this

world a better place. Let us not dishonour their memory by denying pensions to

their families. Let us not dishonour and tarnish the world they fought to

defend, by continuing to uphold bigotry and discrimination. Have we learned

nothing from their sacrifice?[27]

Mr Jiro Takamisawa also spoke of the impact of

the discrimination he faced in accessing the War Widower’s

Pension:

I loved a man called John. He was an Australian veteran.

We were in a relationship for over 20 years. John died of war-related injuries

in 2004. I applied for a war widow’s pension and had I been in a

heterosexual relationship with John, I would have been eligible. Because I was

in a same-sex relationship, the pension was refused.

I was recognised as John’s carer in the last stages

of his life. I received a carer’s pension and because of my care for John,

he did not need to be admitted to any veterans’ hospice or medical

facility. I took good care of him. Now that John has gone, of course, I no

longer receive that pension. But without the financial support of the war

widow’s pension that I should be entitled to because of my long-term

relationship with John, I am struggling

financially.[28]

(d) The

United Nations and discrimination in veterans’

entitlements

Mr Edward Young was denied a pension and bereavement

payment after his veteran partner died. Mr Young took his complaint through all

available legal channels in Australia but found no remedy. He eventually took

his complaint to the UN Human Rights Committee.

As discussed further in Chapter 3 on Human

Rights Protections, the UN Human Rights Committee concluded that:

...the author [Mr Young], as a victim of a violation of

article 26 [of the International Covenant on Civil and Political Rights]

is entitled to an effective remedy, including the reconsideration of his pension

application without discrimination based on his sex or sexual orientation, if

necessary through an amendment of the law. The State party [Australia] is under

an obligation to ensure that similar violations of the Covenant do not occur in

the

future.[29]

Mr

Young told the Inquiry how he felt when he was told he was ineligible for

payment:

I was told I was not eligible because I was not of the

opposite sex. This directive shocked me. Was I not human? Would I not be

grieving for my late partner? There was no consideration. I felt that I was

being treated like some

sub-human.[30]

Mr

Young has not received a War Widower’s Pension or Bereavement Payment, and

the relevant legislation has not been amended to remedy the

discrimination.

10.3.2 A

surviving child of a same-sex veteran parent may access the Orphan’s

Pension and other benefits

A ‘dependant’ of a veteran who has been

orphaned is eligible for the Orphan’s Pension under the Veterans’

Entitlements Act.[31]

(a) A

child of a same-sex couple may be a ‘dependant’

As noted in section 10.2.2 above, a

‘dependant’ includes a ‘child of a veteran’ in the

Veterans’ Entitlements Act. A ‘child of a veteran’ can include

the child of a lesbian co-mother or gay co-father, as well as the child of a

birth mother and birth father, as long as the child was ‘wholly or

substantially dependent’ on the

veteran.[32] A child will be

‘wholly or substantially dependent’ if the deceased veteran was, at

the time of death, legally liable to maintain the

child.[33]

If the lesbian co-mother or gay co-father had

a parenting order in favour of the child then there is little doubt that the

child will qualify.

(b) Benefits

available to a child of a same-sex couple

A qualifying child of a veteran will be entitled to a

single Orphan’s Pension payment of $79.10 per fortnight or a double

Orphan’s Pension payment of $158.20 per

fortnight.[34]

Further,

the child may also be eligible for the following benefits:

  • a Gold Repatriation Health Card (which entitles

    the holder to certain medical treatment and

    services)[35]

  • financial assistance and counselling from the

    Veterans’ Children Education

    Scheme[36]

  • a funeral

    benefit.[37]

10.3.3 A

veteran’s surviving same-sex partner cannot access the Income Support

Supplement

The Income Support Supplement is payable under the

Veterans’ Entitlements Act to an eligible ‘war widow’ or

‘war

widower’.[38]

However,

as discussed in section 10.3.1 above, a same-sex partner cannot be a ‘war

widow’ or ‘war widower’ under the Veterans’ Entitlements

Act. Therefore, a veteran’s surviving same-sex partner will never qualify

for this benefit under the Veterans’ Entitlements

Act.

The Income Support Supplement is an income

support pension valued at a maximum of $152.60 per

fortnight.[39]

10.3.4 A

veteran’s surviving same-sex partner cannot access the Bereavement

Payment

A surviving partner may be entitled to a Bereavement

Payment if he or she is receiving a veterans’ pension and his or her

deceased partner was also receiving a veterans’ pension or a social

security pension before death.[40]

The Bereavement Payment under the

Veterans’ Entitlements Act is intended to:

...assist with the costs that may follow the death of a

person and to help a surviving partner adjust their finances given that the

pension of the deceased person will

stop.[41]

A

same-sex couple is excluded from these benefits because the surviving partner

must be a ‘member of a couple’ as defined by the Veterans’

Entitlements Act.

However, a Bereavement

Payment may also be paid to a pensioner if his or her ‘dependent

child’ dies.[42] As discussed

in section 10.2.2 above, a ‘dependent child’ may include a child of

a lesbian co-mother or gay co-father (as well as birth parents). Accordingly, a

same-sex veteran pensioner parent may be entitled to this payment irrespective

of whether he or she is the birth parent.

10.3.5 There

is no support for the funeral of a deceased veteran’s indigent same-sex

partner

The Veterans’ Entitlements Act provides up to

$1000 towards the cost of the funeral of the ‘dependant’ of a

deceased veteran, if that ‘dependant’ dies in impoverished

circumstances.[43]

Because

a same-sex partner does not meet the definition of ‘dependant’, this

benefit will not be paid for the funeral of an indigent same-sex partner of a

deceased veteran.

However, a child of a

deceased veteran may meet the definition of ‘dependant’. So the

funeral benefit may be available for the funeral of the child of the deceased

veteran, even if the veteran was the child’s lesbian co-mother or gay

co-father.

10.3.6 A

veteran’s surviving same-sex partner cannot access the Gold Repatriation

Health Card

The Veterans’ Entitlements Act provides

treatment for ‘any injury suffered or disease contracted’ by a

‘dependant’ or ‘child of a deceased veteran’ at the

expense of the Department of Veterans’

Affairs.[44] This is administered

through the Gold Repatriation Health

Card.

The Gold

Repatriation Health Card is also available to a person who was the ‘wholly

dependent partner’ of a deceased veteran and ‘an eligible young

person’ who was ‘wholly or mainly dependent’ on the deceased

veteran under the Military Compensation

Act.[45]

A

same-sex partner is not entitled to the Gold Repatriation Health Card under

these definitions, but the child of a same-sex veteran parent may be eligible

for the Card whether or not he or she is the birth child or the child of a

lesbian co-mother or gay co-father.

10.3.7 A

veteran’s surviving same-sex partner cannot access military

compensation

A person who is a ‘wholly dependent

partner’ of a deceased veteran under the Military Compensation Act may be

entitled to the following military workers’ compensation

payments:[46]

  • a tax-free age-based death benefit where the

    veteran’s death has been accepted as related to service. This can be

    provided via periodic payments or a lump sum equivalent. The maximum amount of

    the benefit is $111 244.27[47]

  • a payment of up to $1334.93 to assist with

    seeking financial advice when deciding between the pension or a lump

    sum[48]

  • a further lump sum payment where his or her

    partner was suffering continuing permanent impairment or incapacity before

    death.[49]

A

‘wholly dependent partner’ may also be eligible for free medical

treatment or compensation for treatment (covered by the Gold Repatriation Health

Card),[50] a Pharmaceutical

Allowance[51] and a Telephone

Allowance[52] under the Military

Compensation Act. These benefits and payments are the same as those

offered in the Veterans’ Entitlements Act. [53]

However,

the definition of ‘wholly dependent partner’ will exclude a same-sex

partner.[54]

10.3.8 A

surviving child of a same-sex veteran parent may access military

compensation

Additional military compensation is also available to

an ‘eligible young person’ who is a ‘dependant’ of a

deceased service member.[55]

An ‘eligible young person’ will be

a ‘dependant’ if he or she is ‘wholly or partly dependent’ on the service member prior to the service member’s

death. If the young person qualifies, he or she is eligible to

receive:

  • a tax-free lump sum compensation payment of $66

    746.56[56]

  • education assistance under the Military

    Compensation Act Education and Training Scheme while they remain an eligible

    young

    person.[57]

An

‘eligible young person’ who was ‘wholly or mainly dependent’ on a deceased service member may also receive:

  • a weekly compensation payment of $73.42 a

    week[58]

  • free medical treatment (covered by the Gold

    Repatriation Health Card)[59]

  • a Pharmaceutical

    Allowance.[60]

A

child of a birth mother, birth father, lesbian co-mother or gay co-father could

qualify for these entitlements as long as he or she could establish the

appropriate degree of dependency on the deceased veteran before death. As noted

in section 10.2.2 above, it may be sufficient to prove that the child was living

with the veteran.

10.4 Can

the same-sex partner of a living veteran access

entitlements?

There are a range of entitlements available to a

veteran and his or her partner while a veteran is still living. These

are:

  • Partner Service Pension
  • Utilities Allowance
  • Telephone

    Allowance.

A same-sex partner of a

veteran cannot access those entitlements because of the various definitions

under the legislation.

However, the child of a

veteran will generally be able to access those entitlements, even if the veteran

is not a birth mother or birth father.

The

following sections explain why a same-sex partner cannot get these entitlements

and the financial impact of that discrimination.

10.4.1 A

veteran’s same-sex partner cannot access the Partner Service

Pension

The Veterans’ Entitlements Act provides for a

Service Pension (also referred to as the Age Service Pension or Invalidity

Service Pension) to a veteran with limited

means.[61] It also provides for a

Partner Service Pension for the ‘partner’ of a veteran in certain

circumstances.[62]

However, a same-sex partner is not eligible

for the Partner Service Pension because of the narrow definition of

‘partner’ in the legislation.

(a) A

same-sex couple will only be eligible for the singles’ rate of the Service

Pension

The narrow definition of ‘partner’ also

impacts on the amount of the primary Service Pension paid to the veteran him or

herself.

The Service Pension is income and

assets tested and paid at a singles’ rate and a couples’

rate.[63] The maximum singles’

rate is $512.10 per fortnight.[64] The maximum couples’ rate is $427.70 for each member of the couple per

fortnight.[65]

Where a veteran has a ‘partner’,

the veteran would receive the Service Pension at the couples’ rate and the

veteran’s partner would receive the Partner Service Pension at the

couples’

rate.[66]

However,

since the legislation does not recognise a same-sex partner as a

‘partner’, the veteran of the couple is only entitled to the Service

Pension at the singles’ rate, and his or her partner is not entitled to

receive the Partner Service Pension at all. Put another way, a same-sex couple

will only ever be eligible for the singles’ rate of the Service Pension to

be shared between the couple.

(b) Negative

impact on a same-sex couple

A former member of the defence force, with a total and

permanent injury (TPI) resulting from his time in the defence force, told the

Inquiry:

Opposite-sex partners of TPI pensioners are entitled to a

service pension themselves but a same-sex partner does not have that entitlement

purely because of the fact the person is of the same-sex... My partner [name

removed] has actually made an application to the department at one stage to

attempt to get the pension and was refused purely on the ground that he was the

same sex as

me.[67]

The

following example illustrates that a same-sex couple will generally be worse off

than an opposite-sex couple in the same situation because the same-sex couple

cannot access the Partner Service Pension.

Ben and Lisa have been together for 30 years. During

that time Ben has been employed by the Australian Defence Force. He has been

involved in a number of international conflicts. Ben reaches pension age and

claims the service pension. His partner Lisa has also retired. Lisa decides to

apply for the Partner Service Pension. Her application is accepted and Ben and

Lisa are paid the maximum rate of $427.70 each per fortnight, totalling $855.40

per fortnight.

Ben and John have been together for 30 years. During

that time Ben has been employed by the Australian Defence Force. He has been

involved in a number of international conflicts. Ben reaches pension age and

claims the Service Pension. His partner John has also retired. However,

John’s application for a Partner Service Pension is denied because he is

not recognised as Ben’s partner. Ben and John have to rely on John’s

single rate pension of $512.10 per fortnight.

Ben and John are $343.30 worse off per fortnight than

Ben and Lisa despite identical

circumstances.[68]

10.4.2 A

veteran’s same-sex partner cannot access the Utilities Allowance

The Utilities Allowance is payable to a veteran, and

his or her ‘partner’, who is of veteran pension age and is entitled

to receive:

  • the Invalidity or Age Service Pension
  • a Partner Service Pension
  • the Income Support

    Supplement.[69]

As discussed above, the same-sex

partner of a veteran will not qualify for any of these payments, so the only

person entitled to the Utilities Allowance in a same-sex couple will be the

veteran him or herself.

The Utilities

Allowance is paid in two instalments a year at a singles’ rate of $52.60

and a couples’ rate of $26.30 paid to each member of the

couple.[70]

Since the singles’ rate is exactly twice

that of the couples’ rate paid to each member of a couple, it makes no

financial difference whether the couples’ rate is paid to both members of

the couple, or the singles’ rate is paid to one member of the

couple.

However, where a couple is separated

due to illness or respite care, each member of a couple is entitled to the

singles’ rate.[71] So an

opposite-sex couple separated by illness receives $52.60 each (a total of

$105.20) per fortnight, whereas a same-sex couple separated by illness only

receives $52.60 in total.

10.4.3 A

veteran’s same-sex partner cannot usually access the Telephone Allowance

The Telephone Allowance may be payable to a partner of

a veteran if the partner:

  • receives the Partner Service

    Pension[72]

  • receives the War Widow/Widower’s

    Pension[73]

  • is a ‘wholly dependent partner’ of a

    deceased member under the Military Compensation

    Act[74]

  • receives a pension or allowance under the Social Security Act 1991 (Cth).[75]

For

the reasons outlined earlier, the same-sex partner of a veteran will not qualify

for the Partner Service Pension or War Widow/Widower’s Pension or be

eligible for compensation as a ‘wholly dependent partner’ under the

Military Compensation Act. This means that, unlike an opposite-sex partner, a

same-sex partner will only qualify for the Telephone Allowance if he or she is

eligible to receive a pension or allowance under the Social Security

Act.[76]

The

Telephone Allowance is paid quarterly at a base rate of $21.40 and a half base

rate of $10.70.[77]

10.5 Do

veterans’ entitlements laws breach human rights?

This chapter shows that both the Veterans’

Entitlements Act and the Military Compensation Act deny a veteran’s

same-sex partner the entitlements available to a veteran’s opposite-sex

partner. The cause of this discrimination lies in the narrow definitions used in

the legislation.

This discrimination breaches

the right to non-discrimination under article 26 of the International

Covenant on Civil and Political Rights (ICCPR). It also breaches

Australia’s obligations under the International Covenant on Economic

Social and Cultural Rights (ICESCR), which require Australia to

provide social security (including invalidity and survivor’s benefits)

without discrimination (articles 9, 2(2)).

The

Inquiry notes that in 1999 the United Nations Human Rights Committee found that

the Veterans’ Entitlements Act breached article 26 of the ICCPR in the

case of Young v

Australia.[78] The Committee

recommended amendment to the legislation to remedy the breach, but there has

been no change since that case.

The children of

a same-sex couple may have more difficulty in proving their right to

veterans’ entitlements on the death or injury of a lesbian co-mother or

gay co-father. However, the legislation does not deny them access to those

benefits so the Inquiry makes no finding of breach insofar as the laws apply to

the children of same-sex couples.

Nevertheless,

to the extent that a same-sex family may be financially worse-off because of

discrimination, the best interests of any child of that family may be

compromised.

Chapter 3 on Human Rights

Protections discusses these issues in more detail.

10.6 How

should the law be changed to eliminate future breaches?

This chapter describes discrimination against same-sex

couples regarding a range of entitlements available under the Veterans’

Entitlements Act and the Military Compensation Act.

The Inquiry recommends amending the

legislation to avoid future breaches of the human rights of people in same-sex

couples.

The following sections summarise the

cause of the problems and how to fix them.

10.6.1 Narrow

definitions are the main cause of discrimination

Most of the entitlements under the Veterans’

Entitlements Act and the Military Compensation Act are available to the

‘dependant’ of a veteran.

Under

both acts, a ‘dependant’ includes a ‘partner’. Under the

Veterans’ Entitlements Act a ‘partner’ is defined by reference

to a ‘member of a couple’. A person can only be a ‘member of a

couple’ if he or she is of the opposite sex to the other member.

Similarly, under the Military Compensation Act a ‘partner’ is

defined to include someone of the opposite

sex.

As a result of these narrow

definitions, the same-sex partner of a veteran is denied a whole range of

benefits available to an opposite-sex partner during the life, and after the

death, of the veteran.

A

‘dependant’ also includes a child of a veteran. The Veterans’

Entitlements Act and the Military Compensation Act describe a child in a variety

of ways. All of those definitions are sufficiently flexible to take account of a

birth mother and birth father as well as a lesbian co-mother or gay

co-father.

However, the child of a

birth mother or birth father will automatically be included within that

definition, whereas a child of a lesbian co-mother or gay co-father will

generally have to prove the parent-child

relationship.

In the absence of a parenting

presumption in favour of a lesbian co-mother or a successful adoption, a

parenting order from the Family Court of Australia is the most effective way for

a lesbian or gay co-parent to prove a child-parent relationship.

However, for some families seeking

veterans’ support, the cost and time involved in seeking a parenting order

may impose too high a burden. Thus, the child of a veteran lesbian co-mother or

gay co-father may face greater uncertainty in accessing benefits which are

automatically available to the child of a veteran birth mother or birth

father.

10.6.2 The

solution is to amend the definitions and clearly recognise both same-sex parents

of a child

Chapter 4 on Recognising Relationships presents two

alternative approaches to amending discriminatory definitions within federal law

regarding same-sex couples.

The Inquiry’s

preferred approach for bringing equality to same-sex couples is to:

  • retain the current terminology used in federal

    legislation (for example, retain the term ‘partner’ and

    ‘member of a couple’ in the legislation)

  • redefine the terms in the legislation to include same-sex

    couples (for example, redefine ‘member of a couple’ to include a

    ‘de facto partner’)

  • insert new definitions of ‘de facto

    relationship’ and ‘de facto partner’ which include same-sex

    couples.

Chapter 5 on Recognising

Children sets out how to better protect the rights of the children of

same-sex couples.

Chapter 5 recommends

that the federal government implement parenting presumptions in favour of a

lesbian co-mother of a child conceived through assisted reproductive technology

(ART). This would mean that a lesbian co-mother of an ART child would

automatically be the ‘mother’ of the child (in the same way as the

father in an opposite-sex couple is automatically the ‘father’) and

the child would automatically be a ‘dependant’.

Chapter 5 also suggests that it should be

easier for a lesbian co-mother and gay co-father to adopt a child.

Chapter 5 further recommends the insertion of

a new definition of ‘step-child’ (or ‘step-parent’)

which would include a child under the care of a ‘de facto partner’

of the birth parent. This would make it easier for the child of a lesbian

co-mother or gay co-father to qualify under the definition of

‘dependant’ in the Military Compensation

Act.

Finally, Chapter 5 suggests that federal

legislation should clearly recognise the status of a person who has a parenting

order from the Family Court of Australia. This would mean that gay and lesbian

parents with parenting orders could more confidently assert their rights as a

person ‘who stands in the position of a parent’ of a person who is

‘liable to maintain’ a child.

The

following list sets out the definitions which would need to be amended according

to these suggested approaches.

The Inquiry

notes that if the government were to adopt the alternative approach set out in

Chapter 4, then different amendments would be required.

10.6.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Military Rehabilitation and

Compensation Act 2004 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (s 15(2) – amend to clarify

the role of a parenting order and to change the reference to a

‘step-son’, ‘step-daughter’, ‘step-mother’

and ‘step-father’ to ‘step-child’ and

‘step-parent’ respectively. Otherwise no need to amend if

‘partner’ is amended and a lesbian co-mother or gay co-father and

their children may also be recognised through reformed parenting presumptions,

adoption laws or a new definition of ‘step-child’ and

‘step-parent’)

‘eligible young person’ (s 5 – no need

to amend)

‘partner’ (s 5 – amend to include a

‘de facto partner’)

‘step-child’ (insert new

definition)

‘step-parent’ (insert new

definition)

‘wholly dependent partner’ (s 5 – no

need to amend if ‘partner’ is

amended)

Social Security Act 1991 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependent child’ (s 5(2), (4) – amend

to clarify the role of a parenting order; otherwise no need to amend if the

child of a lesbian co-mother or gay co-father may also be recognised through

reformed parenting presumptions or adoption laws)

‘marriage-like relationship’ (s 4(2), (3),

(3A) – replace with ‘de facto relationship’)

‘member of a couple’ (s 4(2)(b) – amend

to include a ‘de facto partner’ and ‘de facto

relationship’)

‘partner’ (s 4(1) – no need to amend if

‘member of a couple’ is amended)

Veterans’ Entitlements Act 1986 (Cth)

‘child’ (s 5F(1) – no need to

amend)

‘child of a veteran’ (s 10 –

amend to clarify the role of a parenting order; otherwise no need to amend if

the child of a lesbian co-mother or gay co-father may also be recognised through

reformed parenting presumptions or adoption laws)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (s 11(1) – no need to amend

if ‘member of a couple’, ‘widow’, ‘widower’,

‘non-illness separated spouse’ are amended)

‘dependent child’ (s 5F – no need to

amend if s 5(2), (4) of the Social Security Act 1991 (Cth) is

amended)

‘marriage-like relationship’ (s 11A –

replace with ‘de facto relationship’)

‘member of a couple’ (s 5E(2)(b) – amend

to include a ‘de facto partner’ and replace ‘marriage-like

relationship’ with ‘de facto relationship’)

‘non-illness separated spouse’ (s 5E(1)

– amend to include a ‘de facto partner’)

‘partner’ (s 5E(1) – no need to amend if

‘member of a couple’ is amended)

‘war widow’ (s 5E(1) – no need to amend

if ‘member of a couple’ is amended)

‘war widower’ (s 5E(1) – no need to

amend if ‘member of a couple’ is amended)

‘widow’ (s 5E(1) – amend to remove a

reference to partner of ‘a man’, otherwise no need to amend if

‘member of a couple’ is amended)

‘widower’ (s 5E(1) – amend to remove a

reference to partner of ‘a woman’, otherwise no need to amend if

‘member of a couple’ is amended)


Endnotes

[1] See the following submissions for a discussion on the issue of discrimination in

veterans’ entitlements: Action Reform Change Queensland and Queensland

AIDS Council, Submission 270; Anti-Discrimination Commission of Queensland,

Submission 264; Australian Coalition for Equality, Submission 228; Australian

Federation of AIDS Organisations, Submission 285; Equal Opportunity Commission

of Victoria, Submission 327; Human Rights Law Resource Centre, Submission 160;

Law Institute of Victoria, Submission 331; Tasmanian Gay and Lesbian Lobby

Group, Submission 233; University of Western Australia, Submission

185.

[2] Veterans’ Entitlements Act 1986 (Cth), ss

6-6F.

[3] Military Rehabilitation and Compensation Act 2004 (Cth), s

3.

[4] Veterans’ Entitlements Act 1986 (Cth), s

5E(1).

[5] Veterans’ Entitlements Act 1986 (Cth), s

5E(2).

[6] Military Rehabilitation and Compensation Act 2004 (Cth), s

5.

[7] Veterans’ Entitlements Act 1986 (Cth), s

5E(2)(b)(iii).

[8] Veterans’ Entitlements Act 1986 (Cth), s

11A.

[9] Veterans’ Entitlements Act 1986 (Cth), s

5E(1).

[10] Veterans’ Entitlements Act 1986 (Cth), s

11(1).

[11] Veterans’ Entitlements Act 1986 (Cth), s

5E(1).

[12] Military Rehabilitation and Compensation Act 2004 (Cth), s

15.

[13] For an explanation of these terms see the Glossary of

Terms.

[14] Veterans’ Entitlements Act 1986 (Cth), s

11(1)(d).

[15] Veterans’ Entitlements Act 1986 (Cth), s

5F(1).

[16] Veterans’ Entitlements Act 1986 (Cth), s

10(1)-(2).

[17] Veterans’ Entitlements Act 1986 (Cth), s

10(3).

[18] For further background on parenting orders, see Chapter 5 on Recognising

Children.

[19] Military Rehabilitation and Compensation Act 2004 (Cth), s

15.

[20] For further background on parenting orders, see Chapter 5 on Recognising

Children.

[21] Veterans’ Entitlements Act 1986 (Cth), s

5F(1).

[22] Chapter 9 on Social Security, section

9.2.2.

[23] Military Rehabilitation and Compensation Act 2004 (Cth), s

5.

[24] Military Rehabilitation and Compensation Act 2004 (Cth), s

17(a).

[25] Veterans’ Entitlements Act 1986 (Cth), s

13(1)-(2A).

[26] The Veterans’ Entitlements Act 1986 (Cth), s 30 sets the rates for

pensions; s198 sets out the variation of rates of certain pensions. See also

Australian Government, Department of Veterans’ Affairs, DVA Facts DP60,

War Widow’s/Widower’s and Orphan’s Pensions,

http://www.dva.gov.au/factsheets/, viewed 6 March

2007.

[27] Walter Lee, Submission

250(I).

[28] Jiro Takamisawa, Sydney Hearing, 26 July

2006.

[29]Young

v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para

12.

[30] Edward Young, Submission

330.

[31] Veterans’ Entitlements Act 1986 (Cth), s 13(1)-(2A), (4), (6),

(7).

[32] Veterans’ Entitlements Act 1986 (Cth), s

10(1)-(2).

[33] Veterans’ Entitlements Act 1986 (Cth), s 10(3).

[34] Veterans’ Entitlements Act 1986 (Cth), s 198A sets out the

variation of rates of Orphan’s Pension. See also Australian Government,

Department of Veterans’ Affairs, DVA Facts DP60, War

Widow’s/Widower’s and Orphan’s Pension, http://www.dva.gov.au/factsheets/, viewed 5 March

2007.

[35] Veterans’ Entitlements Act 1986 (Cth), s

86(3)-(4).

[36] Veterans’ Entitlements Act 1986 (Cth), pt VII. This payment is

available to a child who is, or was, the child of a

veteran.

[37] Veterans’ Entitlements Act 1986 (Cth), s 100. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts DP60, War

Widow’s/Widower’s and Orphan’s Pensions,

http://www.dva.gov.au/factsheets/default.htm, viewed 6 March 2007, for further

information on the above

benefits.

[38] Veterans’ Entitlements Act 1986 (Cth), s

45A.

[39] Veterans’ Entitlements Act 1986 (Cth), s 45S. The rate is adjusted

in March and September: Australian Government, Department of Veterans’

Affairs, DVA Facts IS22, Income Support Supplement Rates,

http://www.dva.gov.au/factsheets/, viewed 20 February 2007, for payment amounts

current as at 20 February 2007.

[40] Veterans’ Entitlements Act 1986 (Cth), ss 53J-53NA,

98A.

[41] Australian Government, Department of Veterans’ Affairs, DVA Facts BR02,

Payments After Bereavement, http://www.dva.gov.au/factsheets/default.htm,

viewed 13 February

2007.

[42] Veterans’ Entitlements Act 1986 (Cth), ss

53R-53T.

[43] Veterans’ Entitlements Act 1986 (Cth), s

100.

[44] Veterans’ Entitlements Act 1986 (Cth), s 86(1)-(4). However, the

Repatriation Commission can alter the Treatment Principles that set out what

kinds and classes of treatment will or will not be provided for and what

conditions are covered: see Veterans’ Entitlements Act 1986 (Cth),

ss

90-90A.

[45] Military Rehabilitation and Compensation Act 2004 (Cth), ss 5, 17, 284.

See also Australian Government, Department of Veterans’ Affairs, DVA

Facts HSV60, Repatriation Health Card – For All Conditions (Gold), http://www.dva.gov.au/factsheets/default.htm, viewed 5 March

2007.

[46] The person may also be eligible to claim payments and allowances available under

the Veterans’ Entitlements Act 1986 (Cth).

[47] Military Rehabilitation and Compensation Act 2004 (Cth), ss 233-238. The

amount is indexed under the Military Rehabilitation and Compensation Act

2004 (Cth), s 404. See also Australian Government, Department of

Veterans’ Affairs, DVA Facts MRC14, Compensation for Dependants –

Wholly Dependant Partners of Deceased Members and Former Members,

http://www.dva.gov.au/factsheets/default.htm, viewed 26 March

2007.

[48] Military Rehabilitation and Compensation Act 2004 (Cth), ss 239-241. The

amount is indexed under the Military Rehabilitation and Compensation Act

2004 (Cth), s 404. See also Australian Government, Department of

Veterans’ Affairs, DVA Facts MRC14, Compensation for Dependants –

Wholly Dependant Partners of Deceased Members and Former Members, http://www.dva.gov.au/factsheets/default.htm, viewed 26 March

2007.

[49] Military Rehabilitation and Compensation Act 2004 (Cth), ss

242-244.

[50] Military Rehabilitation and Compensation Act 2004 (Cth), s

284(1).

[51] Military Rehabilitation and Compensation Act 2004 (Cth), ss

300-303.

[52] Military Rehabilitation and Compensation Act 2004 (Cth), ss

245-249.

[53] See Australian Government, Department of Veterans’ Affairs, DVA Facts

MRC14, Compensation for Dependants – Wholly Dependant Partners of Deceased

Members and Former Members, http://www.dva.gov.au/factsheets/default.htm,

viewed 26 March

2007.

[54] Military Rehabilitation and Compensation Act 2004 (Cth), s

5.

[55] Military Rehabilitation and Compensation Act 2004 (Cth), ch 5, pt

3.

[56] Military Rehabilitation and Compensation Act 2004 (Cth), ss

251-252. The

amount is indexed under the Military Rehabilitation and Compensation Act

2004 (Cth), s 404. Australian Government, Department of Veterans’

Affairs, DVA Facts MRC15, Compensation for Dependants – Eligible Young

Persons, http://www.dva.gov.au/factsheets/default.htm,

viewed 16 February 2007. This rate was current as at 31 October

2006.

[57] Military Rehabilitation and Compensation Act 2004 (Cth), ss 258-259.

Australian Government, Department of Veterans’ Affairs, DVA Facts

MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,

viewed 16 February 2007. This rate was current as at 31 October

2006.

[58] Military Rehabilitation and Compensation Act 2004 (Cth), ss 253-254. See

also Australian Government, Department of Veterans’ Affairs, DVA Facts

MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,

viewed 16 February

2007.

[59] Military Rehabilitation and Compensation Act 2004 (Cth), s 284(2). See

also Australian Government, Department of Veterans’ Affairs, DVA Facts

MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,

viewed 16 February

2007.

[60] Military Rehabilitation and Compensation Act 2004 (Cth), ss 300-303. See

also Australian Government, Department of Veterans’ Affairs, DVA Facts

MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,

viewed 16 February

2007.

[61] Veterans’ Entitlements Act 1986 (Cth), ss

36-37.

[62] Veterans’ Entitlements Act 1986 (Cth), s

38(1).

[63] Veterans’ Entitlements Act 1986 (Cth), s 38N. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts IS01, Service

Pension Overview, http://www.dva.gov.au/factsheets/default.htm, viewed 6

March 2007.

[64] Veterans’ Entitlements Act 1986 (Cth), sch 6. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts IS45, Partner

Service Pension, http://www.dva.gov.au/factsheets/default.htm, viewed 6

March

2007.

[65] Veterans’ Entitlements Act 1986 (Cth), sch 6. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts IS45, Partner

Service Pension, http://www.dva.gov.au/factsheets/defualt.htm, viewed 6

March

2007.

[66] Veterans’ Entitlements Act 1986 (Cth), sch 6, ss A2, C10, C11, E3,

F2. See also Australian Government, Department of Veterans’ Affairs, DVA Facts IS01, Service Pension Overview, http://www.dva.gov.au/factsheets/default.htm, viewed 16 February

2007.

[67] Speaker, Daylesford Forum, 28 September

2006.

[68] Once John turns 65 he may be eligible for the Age Pension at the singles’

rate. At this point Ben and John will be $168.80 better off per fortnight than

Ben and

Lisa.

[69] Veterans’ Entitlements Act 1986 (Cth), s

118OA.

[70] Veterans’ Entitlements Act 1986 (Cth), s 118OC. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts IS16, Utilities

Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March

2007.

[71] Veterans’ Entitlements Act 1986 (Cth), s 118OC. See also Australian

Government, Department of Veterans’ Affairs, DVA Facts IS16, Utilities

Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March

2007.

[72] Veterans’ Entitlements Act 1986 (Cth), s

118Q(1).

[73] Veterans’ Entitlements Act 1986 (Cth), s

118Q(2).

[74] Military Rehabilitation and Compensation Act 2004 (Cth), ss

245-249.

[76] Note that a partner may also be eligible if they themselves are a veteran and in receipt of the Service Pension.

[77] Veterans’ Entitlements Act 1986 (Cth), s 118S. The rate of

Allowance payable depends on which entitlements the person and their partner are

receiving. For a full list of Telephone Allowance rates and eligibility for each

amount see Australian Government, Department of Veterans’ Affairs, DVA

Facts IS13, Income Support Allowances – Telephone Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March

2007.

[78]Young

v Australia, (941/2000) UN Doc.

CCPR/C/78/D/941/20