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Same-Sex: Same Entitlements: Chapter 7

Same-Sex: Same Entitlements Report


 

Chapter 7. Workers’

Compensation

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7.1 What

is this chapter about?

This chapter focuses on discrimination against

same-sex couples and their families in the context of federal workers’

compensation schemes.

Workers’

compensation schemes are intended to provide compensation to an employee who is

incapacitated because of a work-related accident or to an employee’s

dependants if the employee dies because of a work-related

accident.

Most workers in Australia are covered

by state and territory workers’ compensation schemes. Those schemes appear

to treat same-sex and opposite-sex couples in the same way.

However, federal public servants and employees

of federal government agencies, amongst others, are covered by federal

workers’ compensation schemes (including Comcare). Those schemes do not

recognise an employee’s same-sex partner as someone eligible for

compensation on an employee’s death. Further, a same-sex partner is not

automatically included in the calculation of compensation if an employee is

incapacitated.

Thus, an opposite-sex partner

of a federal employee has the security of knowing that he or she will receive

financial support in the event of his or her partner’s death or

incapacitation. A same-sex partner has no such security.

There is discrimination against same-sex

couples in federal workers’ compensation schemes because the definition of

‘dependant’ in the Safety, Rehabilitation and Compensation Act

1988 (Cth) and Seafarers Rehabilitation and Compensation Act 1992 (Cth) relies on the definition of ‘spouse’. The definition of

‘spouse’ only includes someone in an opposite-sex couple.

The definition of ‘dependant’ also

includes the children of an injured or deceased federal worker. It appears that

this definition may include the child of a lesbian co-mother and gay

co-father(s) as well as a child’s birth mother or birth

father.[1]

This chapter explains how federal

workers’ compensation schemes apply to same-sex couples and their

children. It also briefly discusses the application of state workers’

compensation schemes to same-sex couples and families. The chapter sets out why

the legislation breaches human rights and makes recommendations as to how to

avoid discrimination in the

future.

Specifically, this chapter addresses

the following questions:

  • What are the federal workers’ compensation

    schemes?

  • Do federal workers’ compensation schemes recognise

    same-sex families?

  • Can a same-sex family access workers’ compensation

    death benefits?

  • Is a same-sex family recognised in compensation

    calculations for an injured worker?

  • Do state workers’ compensation schemes discriminate

    against same-sex couples?

  • Does workers’ compensation legislation breach human

    rights?

  • How should workers’ compensation legislation be

    amended to avoid future breaches?

7.2 What

are the federal workers’ compensation schemes?

The main federal workers’ compensation scheme is

called Comcare. Comcare administers the Safety, Rehabilitation and

Compensation Act 1988 (Cth) (Safety and Compensation Act).

The Victorian Gay and Lesbian Rights Lobby

notes that Comcare applies to federal public servants, government agencies and,

since 2005, employees of some private companies:

The [Safety, Rehabilitation and Compensation] Act applies

to all Commonwealth public servants, employees of Government Business Agencies

(Telstra, Australia Post, ADI, CSL etc) and, since 30 June, 2005 – applies

to any private sector company that is granted a licence to self-insure under the

scheme. To date, Optus, Linfox, Linfox Armaguard and K&S Freight have been

granted a licence (K&S has not actually entered the scheme yet, but the

others have). There are many other private sector companies interested in

[Safety, Rehabilitation and Compensation] Act

coverage.[2]

Licensing arrangements allow large companies

to apply for a licence to opt out of compulsory state workers’

compensation schemes. If a licence is granted to an eligible corporation, the

Safety and Compensation Act will apply to employees of that

corporation.[3] There appear to be

financial advantages for private employers to use Comcare, however employees in

same-sex families may be at a disadvantage, as discussed in this

chapter.

The Seafarers Safety, Rehabilitation

and Compensation Authority, known as the Seacare Authority, administers the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (Seafarers

Compensation Act). The Seacare Authority applies to all seafarers on prescribed

ships in Australian

waters.[4]

Finally

there are workers’ compensation schemes for members of the Australian

Defence Force. Those schemes administer the Veterans’ Entitlements Act

1986 (Cth) and the Military Rehabilitation and Compensation Act 2004 (Cth). These schemes are discussed in Chapter 10 on Veterans’

Entitlements.

7.3 Do

federal workers’ compensation schemes recognise same-sex

families?

Both the Safety and Compensation Act and the Seafarers

Compensation Act provide workers’ compensation benefits to the

‘dependant’ of an

employee.[5]
The legislation also provides for additional

compensation payments if a ‘prescribed child’ was ‘wholly or

mainly dependent’ on the employee at the time of death; or a

‘prescribed person’ or ‘prescribed child’ was

‘wholly or mainly dependent’ on the employee at the time of

injury.

The same-sex partner of a federal

employee or seafarer cannot qualify as a ‘dependant’. However, he or

she may qualify as a ‘prescribed

person’.

The child of a same-sex couple

may qualify as a ‘dependant’ or ‘prescribed child’ in

certain circumstances.

7.3.1 ‘Dependant’

excludes a same-sex partner

The Safety and Compensation Act and the Seafarers

Compensation Act define a ‘dependant’ to include an employee’s

‘spouse’.[6]

Both acts define ‘spouse’ to be a

person of the

‘opposite-sex’.[7] Thus a

same-sex partner will never be an employee’s

‘spouse’.

Since a same-sex partner

cannot be a ‘spouse’ he or she will never be a

‘dependant’ for the purposes of federal workers’

compensation.

7.3.2 ‘Dependant’

may include the child of a same-sex couple

The definition of ‘dependant’ under the

Safety and Compensation Act and the Seafarers Compensation Act includes the

following list of people in addition to a ‘spouse’:

(a) ... father, mother, step-father, step-mother,

father-in-law, mother-in-law, grandfather, grandmother, son, daughter, step-son,

step-daughter, grandson, grand-daughter, brother, sister, half-brother or

half-sister of the employee; or

(b) a person in relation to whom the employee stood in the

position of a parent or who stood in the position of a parent to the employee;

being a person who was wholly or partly dependent on the

employee at the date of the employee's

death’.[8]

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).[9]

Chapter 5 explains that the reference to a

‘mother’, ‘father’, ‘daughter’ or

‘son’ in subsection (a) of the definition of ‘dependant’

is likely to recognise only a birth mother, birth father, birth daughter, birth

son or an adoptive relationship. Thus, the child of a lesbian co-mother would

only qualify as her ‘daughter’ or ‘son’ if federal law

recognised parenting presumptions in her favour or the lesbian co-mother adopted

the child. The child of a gay co-father would only be recognised as his

‘daughter’ or ‘son’ if the co-father adopted the

child.[10]

Chapter 5 also explains that 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, subsection (b) refers to a

relationship where a person ‘stands in the position of a parent’.

The legislation does not specify what is

required to prove that a person is ‘standing in the position of a

parent’. But, in the Inquiry’s view, a lesbian co-mother or gay

co-father would likely qualify under this definition, especially if he or she

has a parenting order from the Family Court of

Australia.[11]

7.3.3 ‘Prescribed

person’ may include a same-sex partner or parent in limited

circumstances

A ‘prescribed person’ is defined by the

Safety and Compensation Act and the Seafarers Compensation Act to include a

‘spouse’ as well as a person who is:

(i) the father, mother, step-father, step-mother,

father-in-law, mother-in-law, grandfather, grandmother, son, daughter, step-son,

step-daughter, grandson, granddaughter, brother, sister, half-brother or

half-sister of the employee;

(ii) a person in relation to whom the employee stands in the position of a parent or who stands in the position of a parent to

the employee;

(iii) a person (other than the spouse of the employee or a person referred to in subparagraph (i) or (ii)) who is wholly or mainly

maintained by the employee and has the care of a prescribed

child, being a child who is wholly or mainly dependent on the employee.[12]

A

same-sex partner will not automatically qualify as a ‘prescribed

person’ under this definition because he or she does not qualify as a

‘spouse’. To this extent the definition of ‘prescribed

person’ discriminates against a same-sex

couple.

However, if the same-sex partner was

‘wholly or mainly maintained’ by his or her partner at the time of

injury, and is looking after their child, he or she may qualify as a

‘prescribed person’.

Further, a

birth mother, lesbian co-mother, birth father, gay co-father and their children

may all qualify as a ‘prescribed person’ because they are a birth

parent or they ‘stand in the position of a parent’ (see section

7.3.2 above).

7.3.4 ‘Prescribed

child’ may include the child of a same-sex couple

A ‘prescribed child’ is defined by both

the Safety and Compensation Act and the Seafarers Compensation Act to include a

person under the age of 16, or aged between 16 and 25 and receiving full-time

education and not working.[13] This

definition could include any child.

7.4 Can

a same-sex family access workers’ compensation death

benefits?

The ‘dependant’ of an employee who dies as

a direct result of a work-related injury or illness is entitled to receive a

lump sum compensation payment under Comcare and the Seacare

Authority.[14]

7.4.1 A

same-sex partner does not qualify for death benefits

A same-sex partner of a deceased employee will not be

entitled to this lump sum payment. The Castan Centre for Human Rights Law

explains as follows:

[I]f a Commonwealth employee dies, their same-sex partner

will not be entitled to compensation that would otherwise be provided to the

dependants of an employee. In comparison with most State jurisdictions, the

Federal Government has failed to recognise that surviving same-sex partners

should be entitled to compensation if the death of their partner has been caused

by a workplace injury.[15]

Dr Rob Guthrie from Women in Social and

Economic Research, comments at the Perth Hearing:

Commonwealth legislation stands out as excluding same-sex

couples because it requires a dependant to be an opposite-sex partner of the

employee.[16]

7.4.2 The

child of a lesbian or gay co-parent may qualify for death

benefits

The child of a same-sex couple may be entitled to the

lump sum payment irrespective of whether it is the birth mother, birth father,

lesbian co-mother or gay co-father who dies. However, it may be easier to prove

the right to the entitlement in the case of a deceased birth

parent.

Additional regular payments may be made

regarding a ‘prescribed child’ who was ‘wholly or mainly

dependent’ on the deceased

employee.[17] The child of a

same-sex couple may also qualify for this payment.

7.4.3 Any

person can qualify for funeral expenses

Comcare and the Seacare Authority will pay funeral

expenses to any person who paid for the funeral of a deceased

employee.[18] It does not matter

whether a person is a ‘dependant’ for this payment. If a same-sex

partner pays for the funeral, he or she may be reimbursed.

7.5 Is

a same-sex family recognised in compensation calculations for an injured

worker?

Comcare and the Seacare Authority will pay

compensation to an employee whose injury results in incapacity. The amount of

that payment will depend on whether there is a ‘prescribed person’

or ‘prescribed child’ who was ‘wholly or mainly

dependent’ on the employee at the time of

injury.[19]

7.5.1 A

same-sex partner is not automatically relevant to compensation

calculations

An opposite-sex partner would automatically qualify as

a ‘prescribed person’ for the purposes of calculating the amount of

compensation payable to an incapacitated employee. A same-sex partner will not

automatically qualify because he or she is not a

‘spouse’.

However, a same-sex

partner may be recognised for the purposes of payments if he or she was

‘wholly or mainly maintained’ by his or her partner at the time of

injury, and is looking after their child.

7.5.2 A

dependent child of a lesbian or gay co-parent will generally be relevant to

compensation calculations

The child of an injured employee will generally

qualify as a ‘prescribed child’ or a ‘prescribed person’

for the purposes of calculating the payment, if he or she was ‘wholly or

mainly dependent’ on the employee at the time of

injury.

7.6 Do

state workers’ compensation schemes discriminate against same-sex

couples?

Workers’ compensation arrangements in Australia

are primarily a state and territory

responsibility.[20] Some submissions

to the Inquiry suggested that there is still discrimination against same-sex

couples in state workers’ compensation

schemes.[21]

However,

Inquiry research suggests that same-sex couples have equivalent entitlements to

opposite-sex partners under workers’ compensation law in all states.

7.6.1 A

same-sex partner is recognised under state and territory workers’

compensation schemes

In most cases, the discrimination was removed as part

of the broad state and territory reforms changing the relevant definitions

relating to couples. These reforms are generally described in Chapter 4 on

Recognising Relationships. The following lists the amendments to the relevant

state and territory legislation.

  • In the Australian Capital Territory,

    ‘domestic partners’, including same-sex partners, are included in

    the definition of ‘dependant’ in the Workers Compensation Act

    1951 (ACT).[22]

  • In Queensland, same-sex partners may be

    considered dependants in the Workers’ Compensation and Rehabilitation

    Act 2003 (Qld) as the relevant definition of ‘de facto partner’

    includes same-sex

    partners.[23]

  • In South Australia, a ‘domestic

    partner’, including a same-sex partner, will have equivalent entitlements

    to a spouse under the Workers Rehabilitation and Compensation Act 1986 (SA).[24]

  • In Tasmania, under the Workers Rehabilitation

    and Compensation Act 1988 (Tas), a ‘spouse’ includes a person

    with whom the deceased was in a ‘significant relationship’ within

    the meaning of the Relationships Act 2003 (Tas). This includes a same-sex

    partner.[25]

  • In Western Australia, the definition of

    ‘dependant’ in the Workers’ Compensation and Rehabilitation

    Act 1981 (WA) includes same-sex partners as they are captured by the

    definition of ‘de facto

    partner’.[26]

  • In Victoria, a ‘domestic partner’,

    including a same-sex partner, is included in the definition of

    ‘partner’ in the Accident Compensation Act 1985 (Vic).[27]

  • In the Northern Territory, the definition of

    ‘spouse’ in the Work Health Act (NT) includes a ‘de

    facto partner’ of a person. The definition of ‘de facto

    partner’ in the Work Health Act (NT) includes those in a same-sex

    relationship.[28]

  • In New South Wales, the definition of ‘de

    facto relationship’ in the Workplace Injury Management and Workers

    Compensation Act 1998 (NSW) includes a same-sex

    partner.[29]

The Gay and Lesbian Rights Lobby

(NSW) emphasises in their submission that:

...a discrepancy exists between NSW and federal

worker’s compensation legislation, which affects whether or not a

surviving same-sex partner is eligible for workers’ compensation in the

event of the employee’s death. Under the NSW Workers’

Compensation Act 1997, same-sex de facto spouses are considered dependants

and therefore may qualify for lump sum compensation in the event that their

partner dies, or a weekly payment where they are totally

incapacitated.[30]

7.6.2 A

child in a same-sex family is recognised under state and territory

workers’ compensation schemes

State, territory and federal laws use similar terms to

describe the parent-child relationship. State and territory laws use language

such as:

a person to whom the worker acted in place of a parent or

who acted in place of a parent for the

worker.[31]

The

state and territory definitions also require that the child is financially

dependent on the deceased worker in order to receive compensation following a

work-related death.

In Victoria, the definition

is slightly different:

‘dependent child’ means a child, including an

orphan child, wholly, mainly or partly dependent on the worker’s

earnings.[32]

In

all cases the definitions appear to be sufficiently broad to include the child

of a birth mother, birth father, lesbian co-mother and gay

co-father.

7.7 Does

workers’ compensation legislation breach human rights?

The failure to recognise a

same-sex partner as a ‘spouse’ in the Safety and Compensation Act

and the Seafarers Compensation Act means that a same-sex partner cannot receive

certain workers’ compensation payments. It also means that an employee

with a same-sex partner may receive less compensation than an employee with an

opposite-sex partner.

The Inquiry therefore

finds that the Safety and Compensation Act and the Seafarers Compensation Act

breach Australia’s obligations under article 26 of the International

Covenant of Civil and Political Rights (ICCPR).

This discrimination also breaches

Australia’s obligations under:

  • Discrimination (Employment and

    Occupation) Convention 1958 (ILO 111) - articles 2, 3(b) and 3(c) (equal

    opportunity in the workplace).

  • International Covenant of Economic Social and Cultural

    Rights (ICESCR) - articles 9 and 2(2) (right to social security –

    which includes employment injury benefits – without

    discrimination).

These principles are

discussed in more detail in Chapter 3 on Human Rights

Protections.

The children of a same-sex couple

may have more difficulty in proving their right to workers’ compensation

benefits 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 outright 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 the child (which are protected by article

3(1) of the Convention on the Rights of the Child) may be

compromised.

7.8 How

should workers’ compensation legislation be amended to avoid future

breaches?

This chapter describes the treatment of same-sex

couples and families under the Safety and Compensation Act and the Seafarers

Compensation Act.

A same-sex partner is denied

access to lump sum death benefits which are available to an opposite-sex

partner. And a same-sex partner is not automatically counted for the purposes of

calculating the amount of compensation payable upon an employee’s

incapacitation.

A child of a same-sex couple

can generally access death benefits and will usually be counted in compensation

calculations. However, the child of a birth mother or birth father will be

assumed to have those rights, whereas the child of a lesbian co-mother or gay

co-father will need to prove those

rights.

These consequences may affect more and

more employees as private companies seek to move from state regulation of

workers’ compensation entitlements to the federal system under the Safety

and Compensation Act’s licensing

arrangements.[33]

The Inquiry recommends amending federal

workers’ compensation legislation to avoid future breaches of the human

rights of people in same-sex relationships.

The

following sections summarise where the problems lie and how to fix

them.

7.8.1 Definitions

are the main cause of discrimination

The definition of ‘dependant’ under the

Safety and Compensation Act and the Seafarers Compensation Act relies on the

definition of ‘spouse’ and the definition of ‘spouse’ is

limited to a person of the opposite-sex.

The

definition of ‘prescribed person’ also relies on the definition of

‘spouse’ and discriminates against a same-sex partner to that

extent. However, a ‘prescribed person’ also includes a person who

is:

  • ‘wholly or mainly maintained’ by an employee

    at the time of death or injury, and

  • looking after a child who was dependent on the

    employee.

Thus, a ‘prescribed

person’ may include a same-sex partner in limited circumstances, but a

same-sex partner’s access will be far more limited than an opposite-sex

partner.

The definition of

‘dependant’ and ‘prescribed person’ may include a child

of a same-sex couple. But 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 have to prove the parent-child

relationship.

7.8.2 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

as it relates to 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 terms ‘dependant’ and

    ‘spouse’ in the Safety and Compensation Act and the Seafarers

    Compensation Act)

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

    couples (for example, redefine ‘spouse’ 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’).

Chapter 5 also suggests that it should be

easier for a lesbian co-mother and gay co-father to adopt a child, for the same

reasons.

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’.

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’.

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 approaches set out in Chapter 4, then

different amendments would be required.

7.8.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Safety, Rehabilitation and

Compensation Act 1988 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (s 4(1) – amend to clarify

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

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

and ‘step-father’ to ‘step-child’ and

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

‘spouse’ 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’)

‘prescribed child’ (s 4(1) – no need to

amend)

‘prescribed person’ (s 19(12) – amend to

clarify the role of a parenting order and to change references to a

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

and ‘step-father’ to ‘step-child’ and

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

‘spouse’ 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’)

‘spouse’ (s 4(1) – amend to include a

‘de facto partner’)

‘step-child’ (insert new

definition)

‘step-parent’ (insert new

definition)

Seafarers Rehabilitation and

Compensation Act 1992 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (s 3 – amend to clarify the

role of a parenting order and to change references to a ‘step-son’,

‘step-daughter’, ‘step-mother’ and

‘step-father’ to ‘step-child’ and

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

‘spouse’ 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’)

‘prescribed child’ (s 3 – no need to

amend)

‘prescribed person’ (s 3 – amend to

clarify the role of a parenting order and to change references to a

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

and ‘step-father’ to ‘step-child’ and

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

‘spouse’ 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’)

‘spouse’ (s 3 – amend to include a

‘de facto partner’)

‘step-child’ (insert new

definition)

‘step-parent’ (insert new

definition)


Endnotes

[1] See the Glossary of Terms and Chapter 5 on Recognising Children for an

explanation of these

terms.
[2] Victorian Gay and Lesbian Rights Lobby, Submission

256.
[3] The Minister may grant a licence to a corporation that: was previously a

Commonwealth authority; is about to cease being a Commonwealth authority; or is

carrying on business in competition with a Commonwealth authority or previous

Commonwealth authority: Safety, Rehabilitation and Compensation Act 1988 (Cth), s 100. See also Safety, Rehabilitation and Compensation Act 1988 (Cth), pt VIII, ss 104(1), 108(1). The High Court of Australia recently held

that these licensing provisions are valid: Attorney-General (Vic) v Andrews [2007] HCA 9 (21 March

2007).
[4] The term ‘seafarer’ refers to a person employed in any capacity on a

prescribed ship, on the business of the ship, other than: (a) a pilot; or (b) a

person temporarily employed on the ship in port; or (c) a person included in the

class of persons defined as special personnel in section 283 of the Navigation Act 1912 (Cth): Seafarers Rehabilitation and

Compensation Act 1992 (Cth), s 3. ‘Special personnel’ includes

persons carried on board a ‘special purpose ship’ other than the

master, any crew member, a pilot, or any person temporarily employed on the ship

in port: Navigation Act 1912 (Cth), s

283.
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 17, 19; Seafarers Rehabilitation and Compensation Act 1992 (Cth), ss 29,

31.
[6] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

3.
[7] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

3.
[8] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

3.
[9] For an explanation of these terms see the Glossary of

Terms.
[10] For further background on adoption and parenting presumptions, see Chapter 5 on

Recognising

Children.
[11] For further background on parenting orders, see Chapter 5 on Recognising

Children.
[12] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 19(12); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

3.
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

3.
[14] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 17(3)-(4); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

29(3)-(4).
[15] Castan Centre for Human Rights Law, Monash University, Submission 126.
[16] Women in Social and Economic Research (WISER), Perth Hearing, 9 August 2006.
[17] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 17(5)-(6); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

29(5)-(6).
[18] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 18; Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

30.
[19] Safety, Rehabilitation and Compensation Act 1988 (Cth), s 19(8)-(9); Seafarers Rehabilitation and Compensation Act 1992 (Cth), s

31(9)-(11).
[20] K Purse, R Guthrie and F Meredith, ‘Faulty Frameworks: The Productivity

Commission and Workers’ Compensation’, Australian Journal of

Labour Law, vol 17, no 3, 2004, p306. See also A Clayton, R Johnstone and S

Sceats, ‘The Legal Concept of Work-Related Injury and Disease in

Australian OHS and Workers’ Compensation Systems’, Australian

Journal of Labour Law, vol 15, no 2, 2002,

p105.
[21] Castan Centre For Human Rights Law, Monash University, Submission 126; Women in

Social and Economic Research (WISER), Submission

221.
[22] Workers Compensation Act 1951 (ACT), Dictionary. See definitions of

‘dependant’, ‘domestic partner’ and ‘member of the

family’.
[23] A ‘dependant’ may include a spouse: Workers’ Compensation

and Rehabilitation Act 2003 (Qld), ss 27-28. A ‘spouse’ may

include a ‘de facto partner’ within the meaning of the Acts

Interpretation Act 1954 (Qld), s 32DA: Workers’ Compensation and

Rehabilitation Act 2003 (Qld), s 29. The non-gender specific definition of

‘de facto partner’ set out in section 32DA of the Acts

Interpretation Act 1954 (Qld) applies to all Queensland legislation unless

an Act expressly provides to the contrary: Acts Interpretation Act 1954 (Qld), s

32DA(6).
[24] The Workers Rehabilitation and Compensation Act 1986 (SA) will be amended

by the Statutes Amendment (Domestic Partners) Act 2006 (SA). Compensation

payments to a person on the death of a partner at work are only payable if the

death occurs after the commencement of the amendment: Statutes Amendment

(Domestic Partners) Act 2006 (SA), s 228. This Act had not commenced as at 5

April

2007.
[25] Workers Rehabilitation and Compensation Act 1988 (Tas), s

3(1).
[26] Workers’ Compensation and Rehabilitation Act 1981 (WA), s

5(1).
[27] Accident Compensation Act 1985 (Vic), ss 5, 92A. A same-sex partner is

only entitled to compensation where the worker died after the commencement of

the Statute Law (Relationships) Amendment Act 2001 (Vic), (June 2001):

see Accident Compensation Act 1985 (Vic), s 5, definition of

‘partner’; Castan Centre For Human Rights Law, Monash University,

Submission

126.
[28] Work Health Act (NT), s 49. The definition of ‘de facto

partner’ and ‘de facto relationship’ are contained within

sections 3(2) and 3A of the De Facto Relationships Act (NT) and apply to

all legislation in the Northern Territory: Interpretation Act (NT), s

19A(3). These definitions were added by the Law Reform (Gender, Sexuality and

De Facto Relationships) Act 2003 (NT). Compensation is only payable in

relation to an injury that occurred after the commencement of schedule 1, part

48 of the Act on 17 March 2004: Law Reform (Gender, Sexuality and De Facto

Relationships) Act 2003 (NT), ss 82,

89.
[29] Workplace Injury Management and Workers Compensation Act 1998 (NSW), s

4(1). This definition is different to that contained in section 4(1) of the Property (Relationships) Act 1984 (NSW), which applies to most other NSW

legislation. A person in a same-sex relationship is only eligible for

workers’ compensation where a worker died or received an injury after 1

December 1998 (the commencement of Schedule 7 to the Workers Compensation

Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW): Workplace Injury Management and Workers Compensation Act 1998 (NSW), s

4(1), definition of

‘spouse’.
[30] Gay and Lesbian Rights Lobby (NSW), Submission 333.

orkers’ Compensation and Rehabilitation Act 2003 (Qld), ss 27-28; Workers’ Rehabilitation and Compensation Act 1986 (SA), s 3(1); Workers Rehabilitation and Compensation Act 1988 (Tas), s 3; Workers’ Compensation and Rehabilitation Act 1981 (WA), s 5(1); Work Health Act (NT), s 49(1); Workplace Injury Management and Workers

Compensation Act 1998 (NSW), s

4(1).
[32] ‘Child’ means a person who (a) is under the age of 16 years; or (b)

is 16 years or more but under the age of 21 years and is a full-time student: Accident Compensation Act 1985 (Vic), s 92A(1).
[33]Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 100, 104(1),

108(1). See also Attorney-Ge