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Same-Sex: Same Entitlements: Chapter 18

Same-Sex: Same Entitlements Report


Chapter 18 Summary

of Findings and Recommendations

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18.1 What

is this chapter about?

The following chapter summarises the findings and

recommendations made in each of Chapters 4 – 16 in this report. This

chapter should be read in conjunction with Appendix 1 which sets out the list of

legislation to be amended in order to eliminate discrimination against same-sex

couples and their children.

18.2 What

are the Inquiry’s findings?

The principles of non-discrimination, equality before

the law and the best interests of the child are amongst the most fundamental of

all human rights principles. Yet there are a raft of federal laws which breach

these principles.

18.2.1 The

laws in Appendix 1 discriminate against same-sex couples and

families

The Inquiry finds that:

  1. The 58 federal laws in Appendix 1 discriminate

    against same-sex couples in the area of financial and work-related entitlements.

    Those laws breach the International Covenant on Civil

    and Political Rights.

  2. Many of the federal laws in Appendix 1 discriminate

    against the children of same-sex couples and fail to protect the best interests

    of the child in the area of financial and work-related entitlements.

Those laws breach the International Covenant on Civil

and Political Rights and the Convention on the Rights of the

Child.

18.2.2 Discrimination

can lead to further human rights breaches

The breach of the right to non-discrimination and the

failure to protect the best interests of the child does, in some circumstances,

result in further breaches of other human rights principles.

Those additional human rights principles are

set out in the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), the International Covenant on Economic, Social and Cultural Rights (ICESCR)

and the Discrimination

(Employment and Occupation) Convention (ILO 111).

The findings in each of the topic-specific

chapters explain which laws breach the various provisions in those four human

rights treaties.

The following is a list of

the human rights principles which are breached by the totality of federal

legislation listed in Appendix 1:

  • the right to equal protection and non-discrimination under the law (ICCPR, article 26)
  • the right to non-discrimination in the enjoyment

    of human rights (ICCPR, article 2(1); CRC, article 2; ICESCR, article

    2(2))

  • the right to just and favourable conditions of work, non-discrimination and equality of opportunity in the workplace (ICESCR, article 7; ILO 111, articles 2-3)
    • the obligation to ensure that the best interests of

      the child is a primary consideration in all decisions and laws

      relating to children (CRC, article 3)

    • the right of both parents to be assisted in

      fulfilling common parental responsibilities (CRC, article 18)

    • the right to protection of, and assistance for, the

      family (ICCPR, article 23(1); ICESCR, article 10)

    • the right to privacy and protection from interference

      with the family (ICCPR, article 17; CRC, article 16)

    • the right to access and benefit from social

      security (CRC, article 26; ICESCR, article 9)

    • the child’s right to an identity and to know

      and be cared for by his or her parents (CRC, articles 7–8; ICCPR, article

      24)

    • the best interests of the child must be the

      paramount consideration in adoption (CRC, article 21)

    • the right to the highest attainable standard of

      health (CRC, article 24; ICESCR, article 12)

    • the right to an effective remedy for a breach of

      human rights (ICCPR, article

      2(3)).

These principles are

explained in Chapter 3 on Human Rights Protections and in the relevant

topic-specific chapters.

18.3 What

are the reasons for the Inquiry’s findings?

Each of the topic-specific chapters goes through

relevant federal laws to identify whether and when there is discrimination

against same-sex couples and their children. In particular, the Inquiry examines

whether there are financial and work-related rights and entitlements which are

available to opposite-sex couples and families, but denied to same-sex couples

and families. The Inquiry has identified many areas where this discrimination

occurs.

The primary cause of the discrimination

against same-sex couples lies in the definitions those laws use to describe a

couple or a family.

18.3.1 Same-sex

couples are excluded from definitions describing de facto

couples

Chapter 4 on Recognising Relationships describes the

variety of definitions used to describe a couple in federal law. Broadly

speaking those definitions can be grouped into the following categories:

  • definitions using the words ‘opposite sex’ to

    describe a couple

  • definitions using the words ‘husband or wife’

    to describe a couple

  • definitions using the words ‘spouse’ or

    ‘de facto spouse’ to describe a couple

  • definitions using the words ‘marriage-like

    relationship’ to describe a

    couple.

All of those definitions

include an opposite-sex couple, whether or not they are married. None of those

definitions include a same-sex couple.

There

are also some federal laws which do not include a definition of a spouse or

couple. Those federal laws have also been interpreted to exclude a same-sex

partner or couple.

The consequence of these

narrow definitions and interpretations is that a genuine same-sex couple cannot

access the financial and work-related rights and entitlements available to an

opposite-sex couple. Where those couples have children, those children will be

at a disadvantage.

18.3.2 The

‘interdependency’ category does not give full equality to same-sex

couples

The recent introduction of the

‘interdependency’ relationship category to certain federal laws has

meant that same-sex couples can now access certain superannuation, immigration

and Australian Defence Force employment entitlements that were previously denied

to them.

However, the

‘interdependency’ category has not brought full equality to same-sex

couples, primarily because it treats genuine same-sex couples differently to

genuine opposite-sex couples.

The problems

with using an ‘interdependency’ category to remove discrimination

against same-sex couples include the following:

  • The ‘interdependency

    relationship’ label for a same-sex relationship mischaracterises a genuine

    same-sex couple as different or inferior to a genuine opposite-sex

    couple.

  • The criteria to qualify as a same-sex interdependency

    relationship can be more onerous than the criteria to qualify as an opposite-sex

    de facto relationship. This may mean that some same-sex couples cannot access

    the entitlements available to opposite-sex couples.

  • The introduction of a federal interdependency

    relationship category creates inconsistencies with definitions used in state and

    territory laws.

  • The interdependency relationship category extends beyond

    people in a couple. For example, it may include elderly friends or siblings

    living with, and caring for, each other in old age. This means that the

    interdependency category may have the unintended consequence of expanding the

    number of people eligible for federal financial and work-related

    entitlements.

18.3.3 Children

of same-sex couples are excluded from some definitions describing parent-child

relationships

Chapter 5 on Recognising Children discusses the

variety of legislative definitions used to describe the relationship between a

child and his or her parents. Broadly speaking, those definitions can be

categorised into the following groups:

  • laws defining a child to include an adopted, ex-nuptial

    or step-child

  • laws defining a child to include a person for whom an

    adult has legal responsibility or custody and care

  • laws including a child who is wholly or substantially

    dependent on an adult who stands in the position of a

    parent.

There are also several laws

which do not define the relevant parent-child relationship at

all.

The interpretation of these definitions

and laws relies heavily on how family law characterises the legal relationship

between a same-sex parent and child.

As

Chapter 5 explains, a child born to a gay or lesbian couple could have any one

or more of a birth mother, birth father, lesbian co-mother or gay

co-father(s).[1]

Generally speaking, a birth mother and birth

father will be recognised as legal parents under family law and will therefore

have access to financial and work-related entitlements available to help support

a child. However, the legal status of a lesbian co-mother or gay co-father(s) of

a child is extremely uncertain.

The result of

this uncertainty is that a same-sex family will often have more difficulty

accessing financial and work-related benefits, which are intended to support

children than an opposite-sex family. This may mean that the best interests of a

child born to a same-sex couple will be compromised.

18.3.4 Same-sex

couples and families cannot access the same financial and work-related

entitlements as opposite-sex couples and families

The following sections set out the financial and

work-related entitlements and benefits which are available to opposite-sex

couples and families, but denied to same-sex couples and

families.

The list does not cover all the

financial and work-related entitlements and benefits discussed in the various

topic-specific chapters. However, it does note the main entitlements denied to a

same-sex partner; a lesbian co-mother or gay co-father; or a child of a lesbian

co-mother or gay co-father.

As discussed

earlier in this chapter, every time a same-sex couple or family are denied

entitlements available to an opposite-sex couple or family, there will be a

breach of the right to non-discrimination under article 26 of the ICCPR. In some

circumstances that discrimination may lead to further breaches under the CRC,

ILO 111 and ICESCR.

(a) Discrimination

under employment laws

The Inquiry finds that

federal workplace laws discriminate against same-sex couples or families in the

following ways:

  • A same-sex partner is not guaranteed the same carer’s leave and compassionate leave as an opposite-sex

    partner.

  • A lesbian co-mother or gay co-father is not guaranteed

    the same carer’s leave and compassionate leave as a birth

    mother or birth father.

  • A lesbian co-mother or gay co-father is not guaranteed parental leave.
  • A same-sex partner of a federal member of

    parliament cannot access all the travel entitlements available to an

    opposite-sex partner.

  • A same-sex partner of a federal judge or

    magistrate cannot access all the travel entitlements available to an

    opposite-sex partner.

  • A same-sex couple in the Australian Defence Force does not have the same access to low-interest home loans as an

    opposite-sex couple.

  • Employees in a same-sex couple are not adequately

    protected from discrimination in the workplace on the grounds of sexual

    orientation.

Chapter 6 on Employment provides more detail about these

and other work-related entitlements.

(b) Discrimination

under workers’ compensation laws

The Inquiry finds that the federal Comcare scheme and

the Seacare Authority discriminate against same-sex couples or families in the

following ways:

  • A same-sex partner is not entitled to lump sum

    workers’ compensation death benefits available to an opposite-sex

    partner.

  • A same-sex partner will not automatically be taken into

    account for the purposes of calculating the workers’ compensation sums available on an employee’s incapacity.

Chapter 7 on Workers’ Compensation provides more

detail about these and other workers’ compensation

entitlements.

(c) Discrimination

under tax laws

The Inquiry finds that federal tax laws discriminate

against same-sex couples or families in the following ways:

  • A same-sex partner cannot access the dependent spouse

    tax offset available to an opposite-sex partner.

  • A same-sex partner cannot access the tax offset for a

    partner’s parent available to an opposite-sex partner.

  • A same-sex partner, lesbian co-mother or gay co-father

    cannot access the housekeeper tax offset available to an opposite-sex

    partner, birth mother or birth father.

  • A lesbian co-mother or gay co-father cannot access the child-housekeeper tax offset available to a birth mother or birth

    father.

  • A lesbian co-mother or gay co-father cannot access the invalid relative tax offset available to a birth mother or birth

    father.

  • A taxpayer in a same-sex couple cannot access the higher

    rate of overseas forces tax offset available to an opposite-sex

    couple.

  • A taxpayer in a same-sex couple cannot access the higher

    rate of zone tax offset available to an opposite-sex couple.

  • A US defence force same-sex couple cannot access tax exemptions available to an opposite-sex couple.
  • A lesbian co-mother or gay co-father cannot assert a

    primary entitlement to the baby bonus.

  • A same-sex partner of a person eligible for the child

    care tax rebate cannot access the rebate in the same way as an opposite-sex

    partner. And a person eligible for the child care tax rebate cannot transfer the

    unused value of the rebate to his or her same-sex partner.

  • A same-sex couple must spend more than an opposite-sex

    couple to qualify for the medical expenses tax offset.

  • A same-sex couple may pay a higher Medicare levy and Medicare levy surcharge than an opposite-sex couple.
  • A same-sex partner cannot access the same capital

    gains tax concessions available to an opposite-sex couple.

  • A same-sex couple transferring property to a child (or trustee) on family breakdown will be taxed at the top marginal rate, unlike

    an opposite-sex couple.

  • A same-sex partner must pay income tax on child

    maintenance payments received from a former partner, unlike an opposite-sex

    partner.

  • A same-sex partner is not eligible for the same fringe

    benefit tax exemptions available to an opposite-sex

    partner.

Chapter 8 on Tax provides more detail about these and

other tax entitlements.

(d) Discrimination

under social security laws

Social security laws treat a same-sex couple as two

individuals. Sometimes this brings a benefit to a same-sex couple or family;

other times this brings a detriment.

As

discussed in Chapter 9 on Social Security, the main point of concern is that

social security laws treat a same-sex couple differently to an opposite-sex

couple.

However, as discussed in Chapter 3 on

Human Rights Protections, generally under human rights law there will only be

discrimination if there is a negative impact on the affected person.

Thus, the following is a list of those areas

of social security law where there is clearly a negative impact, and therefore

discrimination against a same-sex couple:

  • A same-sex partner cannot access the Partner

    Allowance available to an opposite-sex partner.

  • A same-sex partner cannot access the bereavement

    benefits available to an opposite-sex partner.

  • A same-sex partner cannot access the Widow

    Allowance available to an opposite-sex partner.

  • A same-sex partner cannot access concession card

    benefits available to an opposite-sex partner.

  • A same-sex partner cannot access a gaoled

    partner’s pension available to an opposite-sex partner.

  • A young same-sex couple is less likely to qualify for the

    independent rate of Youth Allowance than a young opposite-sex couple in

    the same situation.

Chapter 9 on Social Security provides more detail about

these and other social security entitlements.

(e) Discrimination

under veterans’ entitlements laws

The Inquiry finds that federal veterans’

entitlements laws discriminate against same-sex couples or families in the

following ways:

  • A veteran’s surviving same-sex partner cannot

    access the War Widow/Widower’s Pension available to an

    opposite-sex partner.

  • A veteran’s surviving same-sex partner cannot

    access the Income Support Supplement available to an opposite-sex

    partner.

  • A veteran’s surviving same-sex partner cannot

    access the Bereavement Payment available to an opposite-sex

    partner.

  • There is no support available for the funeral of a

    deceased veteran’s indigent same-sex partner, but there is for an

    opposite-sex partner.

  • A veteran’s surviving same-sex partner cannot

    access the Gold Repatriation Card available to an opposite-sex

    partner.

  • A veteran’s surviving same-sex partner cannot

    access military compensation available to an opposite-sex

    partner.

  • A veteran’s same-sex partner cannot access the Partner Service Pension available to an opposite-sex partner.
  • A veteran’s same-sex partner cannot access the Utilities Allowance under the same circumstances as an opposite-sex

    partner.

  • A veteran’s same-sex partner cannot usually access

    the Telephone Allowance available to an opposite-sex

    partner.

Chapter 10 on Veterans’ Entitlements provides more

detail about these and other veterans’ entitlements.

(f) Discrimination

under health care laws

The Inquiry finds that laws relating to the Medicare

and Pharmaceutical Benefits Scheme (PBS) Safety Nets discriminate against

same-sex couples or families in the following ways:

  • A same-sex couple or family must spend more than an

    opposite-sex couple or family to qualify for the Medicare Safety Net and Medicare Extended Safety Net.

  • A same-sex couple or family must spend more on

    pharmaceuticals than an opposite-sex couple or family to qualify for the PBS

    Safety Net.

Chapter 11 on Health Care Costs provides more detail about

these and other health care entitlements.

(g) Discrimination

under family laws

The Inquiry finds that family laws discriminate

against same-sex couples or families in the context of relationship breakdown in

the following ways:

  • A same-sex couple cannot access the more comprehensive

    federal property settlement regime on relationship breakdown. This access

    is only available to married couples, though it is expected that opposite-sex de

    facto couples will have access to the federal regime shortly.

  • A birth mother and birth father cannot pursue child

    support against a lesbian co-mother or gay

    co-father.

Chapter 12 on Family Law provides more detail about these

and other entitlements relevant to relationship breakdown.

(h) Discrimination

under superannuation laws

The Inquiry finds that federal superannuation laws

discriminate against same-sex couples or families in the following

ways:

  • A federal government employee’s surviving

    same-sex partner cannot access direct death benefits (lump sum or

    reversionary pension) available to a surviving opposite-sex partner (unless the

    employee joined the public service after 1 July 2005).

  • The surviving child of a

    lesbian co-mother or gay co-father who was a federal government employee will not usually qualify for direct death benefits (lump sum or

    reversionary pension) available to the child of a birth mother or birth

    father.

  • It is harder for a surviving same-sex partner to qualify

    for death benefits in private superannuation schemes (as a person in an

    ‘interdependency relationship’) than for a surviving opposite-sex

    partner (as a ‘spouse’).

  • A surviving same-sex partner cannot usually qualify for a reversionary pension in a private superannuation scheme, which is

    available to an opposite-sex partner.

  • It is harder for a surviving same-sex partner to access death benefits from a retirement savings account (as a person in an

    ‘interdependency relationship’) than for a surviving opposite-sex

    partner.

  • It is harder for a surviving same-sex partner to access death benefits tax concessions than for a surviving opposite-sex

    partner.

  • A same-sex partner cannot access the death benefits

    anti-detriment payment available to an opposite-sex partner.

  • A same-sex partner cannot engage in superannuation

    contributions splitting and the associated tax advantages available to an

    opposite-sex partner.

  • A same-sex partner cannot access the superannuation spouse tax offset available to an opposite-sex

    partner.

  • A surviving same-sex partner of a federal judge cannot access the reversionary pension available to a surviving

    opposite-sex partner.

  • A surviving same-sex partner of a Governor-General cannot access the allowance available to a surviving opposite-sex

    partner.

Chapter 13 on Superannuation provides more detail about

these and other superannuation entitlements.

(i) Discrimination

under aged care laws

Aged care laws treat a same-sex couple as two

individuals. Depending on the asset distribution between the two members of a

same-sex couple, a same-sex couple may be better off or worse off when entering

residential aged care facilities.

As discussed

in Chapter 14 on Aged Care, the main point of concern is that aged care laws

treat a same-sex couple differently to an opposite-sex couple, because the laws

do not recognise a same-sex couple as a genuine

couple.

However, as discussed in Chapter 3 on

Human Rights Protections, under human rights law, generally there will only be

discrimination if there is a negative impact on the affected individual.

Thus, the following is a list of those areas

of aged care law where there is usually a negative impact, and therefore

discrimination against a same-sex couple:

  • A same-sex partner is more likely to be liable for accommodation payments, because the family home is not exempt from the

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

  • A same-sex couple will usually pay a higher

    accommodation charge than an opposite-sex couple.

  • A same-sex couple will usually pay a higher

    accommodation bond than an opposite-sex couple.

Chapter 14 on Aged Care provides more detail about these

and other aged care payments.

(j) Discrimination

under immigration laws

The Inquiry finds that federal immigration laws

discriminate against same-sex couples in the following ways:

  • A same-sex partner of an Australian citizen or permanent

    resident may have to pay more for an Interdependency visa than an

    opposite-sex partner pays for a Spouse visa.

  • A same-sex couple is only eligible for one visa

    category if they wish to migrate to Australia as a couple, compared to the

    many options available to an opposite-sex couple.

Chapter 15 on Migration provides more detail about the

visas available to same-sex couples and the financial implications of restricted

visa options.

18.4 What

are the Inquiry’s recommendations?

The Inquiry has only two recommendations. They both

aim to protect non-discrimination, equality under the law and the best interests

of the child.

Those recommendations

are:

  1. The federal government should amend the

    discriminatory laws identified by this Inquiry to ensure that same-sex and

    opposite-sex couples enjoy the same financial and work-related

    entitlements.

  2. The federal government should amend the

    discriminatory laws identified by this Inquiry to ensure that the best interests

    of children in same-sex and opposite-sex families are equally protected in the

    area of financial and work-related entitlements.

18.5 How

can the federal government fulfil those recommendations?

A number of submissions to the Inquiry observed that

there is no federal legislation which broadly protects against discrimination on

the grounds of sexual orientation. This means that people who suffer

discrimination on the grounds of their sexuality have no remedies under

Australian law.

The Inquiry agrees that the

enactment of ‘sexuality discrimination’ legislation along the lines

of the Sex Discrimination Act 1984 (Cth), Disability Discrimination

Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) and the Age

Discrimination Act 2004 (Cth) would help protect the rights of gay and

lesbian individuals, couples and families in

Australia.

The Inquiry makes a specific

recommendation in Chapter 6 on Employment for the introduction of federal

legislation to protect against discrimination in employment on the grounds of

sexual orientation.

However, such legislation

is not a prerequisite to removing discrimination in the 58 laws listed in

Appendix 1 to this report.

The recommendations

of this Inquiry focus on a more direct route to ensuring equality for same-sex

couples and families in the area of financial and work-related entitlements.

This includes enacting omnibus legislation amending all legislative definitions

currently excluding same-sex couples and families.

18.5.1 Enact

omnibus legislation amending all discriminatory laws

Appendix 1 to this report identifies 58 federal laws

which currently exclude same-sex couples from financial and work-related

entitlements. The federal parliament should introduce ‘omnibus’

legislation to simultaneously eliminate discrimination against same-sex couples

in all those federal laws.

The Inquiry’s

preferred approach to amendments is that the omnibus legislation:

  • retain the current terminology used in federal

    legislation

  • redefine the terminology in the legislation to include

    same-sex couples

  • insert a new definition of ‘de facto

    relationship’ and ‘de facto partner’ following the model

    definition set out below.

If this

approach is adopted amendments will generally be restricted to the

‘definitions’ or ‘interpretation’ sections of the

relevant legislation. Appendix 1 provides some guidance on how this approach may

be applied in the context of the specific legislation.

18.5.2 Insert

a new definition of ‘de facto relationship’ and ‘de facto

partner’ in federal law

In developing the following definition of ‘de

facto relationship’ the Inquiry has examined:

  • the various definitions and criteria describing same-sex

    and opposite-sex couples in state and territory laws

  • the various definitions and criteria describing

    ‘interdependency’ relationships in federal laws

  • the criteria for a ‘marriage-like

    relationship’ used in social security

    law.

The Inquiry has used the term

‘de facto’ because it is the most common of the terms used in state

and territory laws. However, the Inquiry has no strong preference for the term

‘de facto relationship’ above terms such as ‘domestic

relationship’ or ‘significant relationship’, as long as the

term covers same-sex and opposite-sex couples alike.

For reasons expressed earlier in this chapter,

the Inquiry does not believe that the introduction of an

‘interdependency’ category is an appropriate approach to removing

discrimination against same-sex couples.

The

following definition of ‘de facto relationship’ has sought to ensure

the following features:

  • Inclusiveness. The focus of the definition is on

    the genuineness of the relationship rather than the gender of the

    partners.

  • Flexibility. The definition considers a range of

    factors relevant to a relationship, but no one factor is determinative. Further,

    the definition starts with the assumption that the couple must live together,

    but allows for the possibility that they may be temporarily

    separated.

  • Consistency. The proposed federal definition is

    generally consistent with definitions in state and territory jurisdictions. The

    goal is to reduce the uncertainty currently facing same-sex couples seeking to

    access entitlements in different jurisdictions.

  • Evidentiary guidelines. The definition seeks to

    indicate the type of evidence that may assist a couple to prove the genuineness

    of the relationship, including statutory declarations and other formal

    recognition schemes if

    available.

With those

factors in mind, the Inquiry recommends that the following definition of

‘de facto relationship’ be inserted into federal laws conferring

financial and work-related entitlements:

(1) ‘De facto relationship’ means the

relationship between two people living together as a couple on a genuine

domestic basis.

(2) In determining whether two people are in a de facto

relationship, all the circumstances of the relationship must be taken into

account, including any of the following:

  • (a) the length of their relationship
  • (b) how long and under what circumstances they have

    lived together

  • (c) whether there is a sexual relationship between

    them

  • (d) their degree of financial dependence or

    interdependence, and any arrangements for financial support, between or by them

  • (e) the ownership, use and acquisition of their

    property, including any property that they own individually

  • (f) their degree of mutual commitment to a shared life
  • (g) whether they mutually care for and support

    children

  • (h) the performance of household duties
  • (i) the reputation, and public aspects, of the

    relationship between them

  • (j) the existence of a statutory declaration signed by

    both persons stating that they regard themselves to be in a de facto

    relationship with the other person.

(3) No one factor, or any combination of factors, under

(2) is necessary to establish a de facto relationship.

(4) A de facto relationship may be between two people,

irrespective of gender.

(5) Two people may still be in a de facto relationship

if they are living apart from each other on a temporary

basis.

If the various states and

territories adopt a relationship registration scheme (like that which exists in

Tasmania), subsection (6) could be added to the definition of ‘de facto

relationship’ along the following lines:

(6) If a relationship is registered under a state or

territory law allowing for the registration of relationships, registration is

proof of the relationship from that date.

If the various states and territories

adopt a civil union scheme, subsection (7) could be added along the following

lines:

(7) If two people enter into a civil union under a

state or territory law, evidence of that civil union is proof of the

relationship from that date.

If

relationship registration or civil unions become relevant to the definition of

‘de facto relationship’, subsection (3) should change to

read:

(3) No one factor, or any combination of factors, under

(2), (6) or (7) is necessary to establish a de facto

relationship.

The Inquiry further

recommends the following definition of ‘de facto

partner’:

‘de facto partner’ means one of two people

in a de facto relationship.

18.5.3 Enact

laws recognising the relationship between a child and both same-sex

parents

The amendments necessary to ensure equal protection of

the children of same-sex families and opposite-sex families go beyond the

federal financial laws themselves. This is because the definitions in those laws

rely on the way family law recognises the legal status of a lesbian co-mother or

gay co-father. Family laws have not caught up with the reality that lesbian and

gay couples are now raising children from

birth.

The Inquiry recommends that the

following steps be taken to better ensure protection of the best interests of

children raised in all families, irrespective of the gender of their

parents:

  1. Federal laws without a definition of

    ‘child’ should include a definition which recognises the children of

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

    co-father.

  2. Federal laws should ensure that a lesbian co-mother of

    a child conceived through assisted reproductive technology (an ART child) can

    access the same financial and work-related entitlements available to a birth

    mother and birth father (a legal parent).

This could be achieved by

amending:

  • the Family Law Act 1975 (Cth) (Family Law Act) to

    include a parenting presumption in favour of the lesbian co-mother of an ART

    child and ensuring that the definition of ‘child’ in any relevant

    legislation recognises the parenting presumptions in the Family Law Act;

    or

  • the Acts Interpretation Act 1901 (Cth) (Acts

    Interpretation Act) such that any references to a person’s

    ‘child’ in federal legislation includes the ART child of a lesbian

    co-mother.

It could also be achieved

if:

  • all states enacted parenting presumptions in favour of a

    lesbian co-mother of an ART child (following the models in WA, ACT and NT); and

  • federal law clearly recognised those presumptions and the

    birth certificates flowing from those

    presumptions.

While parenting presumptions

are appropriate for the ART child of a lesbian couple, broader adoption laws are

the better solution for a gay couple having an ART child (as set out in the

following Recommendations

4–5).[2]

  1. Federal financial and work-related laws should include

    a definition of ‘step-child’ which recognises a child under the care

    of a ‘de facto partner’ of a birth mother or birth

    father.

    The previous section suggests

    an appropriate definition of ‘de facto partner’.

    Amending laws in this way would generally recognise the

    child of a lesbian co-mother or gay co-father as a step-child. It would also

    include a child under the care of a subsequent de facto partner in an

    opposite-sex and same-sex couple. (Currently a step-child can only be a child

    under the care of a subsequent partner who marries the birth parent).

  2. ‘Step-parent adoption’ laws should more

    readily consider adoption by a lesbian co-mother or gay

    co-father.

    This will require

    amendments to remove the prohibition on same-sex step-parent adoption in all

    state and territory laws other than in WA, the ACT and Tasmania. It may also

    require reconsideration of the general presumption against step-parent adoption,

    in the event of gay and lesbian co-parenting arrangements. The Victorian Law

    Reform Commission is due to publish a report on this issue during 2007.

  3. Gay and lesbian couples should have equal rights to

    apply for adoption of an unrelated

    child.

    This will require amendments to

    adoption laws in all states and territories other than in WA and the ACT.

    Further, the federal government should not introduce legislation limiting the

    possibility of overseas adoptions by gay and lesbian couples.

  4. Where access to financial or work-related benefits is

    intended to extend beyond the legal parents, federal laws should explicitly

    recognise the eligibility of a person who has a parenting order from the Family

    Court of Australia.

    This could be

    achieved by amending:

  • the relevant federal legislation to define a person who

    is ‘legally responsible’, has ‘custody and care’, is in

    the ‘position of a parent’ (and other similar terms) to include a person who has been granted a parenting order from the Family

    Court of Australia; or

  • the Acts Interpretation Act such that any reference to a

    person who is ‘legally responsible’, has ‘custody and

    care’, is in the ‘position of a parent’ (or other similar

    terms) includes a person who has been granted a parenting order from the

    Family Court of Australia.

  1. There should be a pu