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Same-Sex: Same Entitlements: Chapter 9

Same-Sex: Same Entitlements Report


Chapter 9. Social

Security

Download Chapter 9: [ PDF] [ Word ]

9.1 What

is this chapter about?

This chapter focuses on discrimination against

same-sex couples and their families in the context of accessing social security

payments.

Social security is an income support

system that acts as a safety-net for people who, for some reason, are unable to

financially support themselves. Entitlements to social security are largely

governed by the Social Security Act 1991 (Cth) (Social Security Act) and

the A New Tax System (Family Assistance) Act 1999 (Cth) (Family

Assistance Act). The payments are usually administered by

Centrelink.

Many aspects of the social security

system in Australia relate to couples and families. Discrimination against

same-sex couples occurs because the definitions of ‘member of a

couple’ and ‘partner’ do not recognise same-sex relationships.

And, in certain circumstances, the definition of ‘dependent child’

may exclude a child of a lesbian co-mother or gay

co-father.

Since social security legislation

does not recognise same-sex couples, a person who has a same-sex partner will be

treated as a single person for social security purposes. This can have either a

positive or negative impact on the type and rate of payments a person is

eligible to receive because of the way income and assets tests are

administered.

Thus, the

exclusion of same-sex couples under social security law sometimes operates to

the financial benefit of a same-sex family and other times to the financial

detriment. Either way it is clear that same-sex couples are treated differently

to opposite-sex couples.

This chapter explains

how social security law applies to same-sex couples and their children and the

financial impact it can have on a family. It makes findings about the human

rights breaches caused by the exclusion of same-sex partners and their children

in certain circumstances. It then makes recommendations about how to make sure

that same-sex and opposite-sex couples are treated equally in the

future.

Specifically, this chapter addresses

the following questions:

  • Are same-sex couples and their children recognised by

    social security legislation?

  • Which social security benefits are available to a

    same-sex partner?

  • How do income and assets tests impact on same-sex

    couples?

  • How do partnered payment rates impact on same-sex

    couples?

  • Can a young same-sex couple access Youth

    Allowance?

  • How does the calculation of family payments impact on

    same-sex families?

  • What do same-sex couples say about social security

    law?

  • Does social security legislation breach human

    rights?

  • How should social security legislation be amended to

    avoid future breaches?

9.2 Are

same-sex couples and their children recognised by social security

legislation?

The Social Security Act contains a range of

definitions relating to a couple and the children in a family.

The effect of these definitions extends beyond

social security, as a number of other acts adopt the definitions relating to

couples in the Social Security Act. That legislation includes the Family

Assistance Act and the Veterans’ Entitlements Act 1986 (Cth)

(Veterans’ Entitlements Act) (see Chapter 10 on Veterans’

Entitlements).[1]

9.2.1 A

same-sex partner is not a ‘partner’ or a ‘member of a

couple’

Whether a person is a ‘partner’ is very

important in determining entitlement to social security benefits.

Some payments are only made if a person has a

‘partner’. For other payments, the amount will be determined (in

part) by the financial status of a person’s ‘partner’. And

some payments are paid at different rates for individuals and members of a

couple.

The Social Security Act defines a

‘partner’ by reference to a person who is a ‘member of a

couple’.[2]

A person is a ‘member of a couple’

if, amongst other things, ‘the person has a relationship with a person of

the opposite

sex’.[3]

The

use of the words ‘opposite sex’ in this definition automatically

excludes a member of a same-sex

couple.[4]

The definition of ‘member of a

couple’ also refers to a person being in a ‘marriage-like

relationship’.[5]

The criteria used to determine whether someone

is in a ‘marriage-like relationship’ do not necessarily exclude a

same-sex couple.[6] However, being of

the opposite-sex is a pre-requisite to being in a marriage-like relationship

under the Social Security Act.

Thus, the

definition of ‘member of a couple’ (and therefore the definition of

‘partner’) clearly excludes a person in a same-sex

couple.

As noted above, these definitions are adopted by the

Family Assistance Act, which governs some of the payments made to assist

families.

9.2.2 A

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

There are many social security payments which depend

on whether a person is recognised as the child of an adult.

Some social security payments are made only if

a person or couple has a child.[7] For

other payments, the amount paid may depend on whether a person or couple has one

or more children.[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.[9]

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’s

relationship with their lesbian co-mother or gay co-father is

ignored.

The Social Security Act

contains a number of different definitions to describe the parent-child

relationship. Most of the relevant definitions seem to

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

co-father.[10] However, it may be more difficult for a lesbian

co-mother or gay co-father to prove her or his relationship with their child

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

(a) ‘Dependent

child’ may include a child of a lesbian co-mother or gay

co-father

A person is a ‘young person’ if they are

under 16 years of age or they are a full-time student under the age of

22.[11]

A ‘young person’ is considered the

‘dependent child’ of an adult under the Social Security Act

if:

(a) the adult is legally responsible (whether alone or

jointly with another person) for the day-to-day care, welfare and development of

the young person, and the young person is in the adult’s care;

or

(b) the young person:

  1. is not a dependent child of someone else under

    paragraph (a); and

  2. is wholly or substantially in the adult’s

    care.[12]

As discussed in Chapter 5 on Recognising Children, a

birth mother or birth father are considered the legal parents of a child. They

are therefore generally assumed to be ‘legally responsible’

for a child. As long as the young person is in that parent’s care he or

she will be a ‘dependent child’.

Chapter 5 also notes that a lesbian co-mother

or gay co-father will generally only qualify as legal parents under federal law

if they successfully adopt a child. And this is extremely unlikely.

So a lesbian co-mother and gay co-father will

have to take additional steps to prove ‘legal responsibility’.

While the legislation is not clear about how

to prove that a person is ‘legally responsible’ for a child, it

appears that an adult with a parenting order will qualify. Therefore, if a gay

co-father or lesbian co-mother:

  • has a parenting order in favour of a child
  • the child is under his or her

    care

that child will be considered his or

her ‘dependent child’.

However, as

Chapter 5 explains, parenting orders can be expensive and may involve lengthy

court proceedings. A same-sex couple seeking to access social security benefits

may not have the resources to go through this process. Therefore, a lesbian

co-mother and gay co-father may not enjoy equality with the birth mother and

birth father who do not need anything other than a birth certificate to prove

that a child is a ‘dependent child’.

(b) ‘FTB

child’ may include a child of a lesbian co-mother or gay

co-father

The definition of an ‘FTB child’ is

discussed later in this chapter in the context of the Family Tax Benefit and

Child Care Benefit. The definition is similar to ‘dependent child’

and may therefore incorporate the child of a lesbian co-mother or gay co-father

in certain circumstances.

9.3 Which

social security benefits are available to a same-sex family?

Eligibility for some social security benefits, and the

rate at which they are paid, depends on whether a person has a

‘partner’.

These benefits

include:

  • Partner Allowance, paid to a person whose partner

    is receiving particular benefits.

  • Bereavement benefits, paid to a person whose

    partner (or in some cases whose dependent child) has died.

  • Widow Allowance, paid to a woman who has

    been widowed, divorced or separated in later

    life.[13]

  • Youth Allowance, paid at a higher rate if a person

    is deemed ‘independent’ – which may depend on the person being

    a ‘member of a Youth Allowance couple’.

Same-sex couples are not eligible for

the payments because a same-sex partner does not qualify as a

‘partner’ under social security legislation.

9.3.1 A

same-sex partner cannot access the Partner Allowance

The Partner Allowance is designed to assist a couple

when one partner is unable to work. The maximum rate of payment is $382.80 per

fortnight.[14] The Partner Allowance

has been phased out since September 2003, but applicants who were receiving the

Allowance before this date will continue to receive

it.[15]

The

Partner Allowance is paid to a person, subject to an assets test, if:

  • the person does not have recent workforce

    experience

  • the person is a ‘member of a

    couple’

  • the person’s ‘partner’ is

    receiving a particular qualifying

    benefit.[16]

A same-sex partner can never be a

‘member of a couple’ or a person’s ‘partner’ under

the Social Security Act, so will never be eligible for the Partner

Allowance.[17]

9.3.2 A

same-sex partner cannot access bereavement benefits

A person whose ‘partner’ has died (or in

some circumstances their child or an adult in their care) may be entitled to a:

  • Bereavement Allowance, payable to a person

    who does not have any dependent children and whose recognised partner has died.

    The allowance may be paid for up to 14 weeks and is subject to the Pension

    Income and Assets

    tests[18]

or

  • Bereavement Payment, a lump sum payable to

    someone who has been receiving certain types of benefits and whose partner or

    child has died; or if an adult or child they have been caring for has

    died.[19]

The surviving member of a same-sex

couple is not eligible for either the Bereavement Allowance or Bereavement

Payment on the death of his or her same-sex partner (unless he or she qualifies

separately as a carer), because a member of a same-sex couple is not considered

a ‘partner’.

Michael Burge told

the Inquiry of the difficulties he faced in trying to access support after the

sudden death of his long term partner:

...surviving spouses of same sex de facto relationships

are NOT entitled to access bereavement support from Centrelink. Centrelink makes

no acknowledgement of same sex relationships of any kind (since it is Federally

governed)... Centrelink's approach, and the advice of others, is to "just go on

the dole", but that would mean going onto Newstart which is basically a job

search programme during which you must actively search for work to be eligible

to receive your benefit...why should genuinely bereaved surviving same-sex

spouses, particularly since they are in that situation due to a death, and are

bound to be in a state of grief and genuine need of support have to go through

this?[20]

The impact of this discrimination is also described by the

Australian Coalition for Equality:

A partner’s death provides evidence of the greatest

discrimination for same-sex couples in this area. For many Centrelink payments,

a surviving heterosexual partner can be paid a lump sum or continuing

bereavement payment of up to 14 weeks of benefit payments. In addition, because

their relationships are not recognised, the surviving member of a same-sex

couple does not qualify for a widow’s pension or payments. The pain

suffered from the loss of a same-sex partner is the same as that of a lost

heterosexual partner – and bereavement benefits should be equal to those

available to

heterosexuals.[21]

This

discrimination can impact heavily on people who are mourning the loss of a

partner. As the Young Lawyers Human Rights Committee states:

...partner bereavement payments can mean the difference

between being able to maintain an adequate standard of living and health while

one accommodates and mourns the loss of another and sliding into economic

depravation and social

isolation.[22]

9.3.3 A

lesbian co-mother or gay co-father may access bereavement benefits in relation

to the Parenting Payment

The Bereavement Payment is made to parents who

qualified for certain social security payments before their child died,

including the Parenting Payment.[23] The Bereavement Payment is equivalent to 14 additional weeks of Parenting

Payment.[24]

A

person will be eligible for the Parenting Payment if he or she is the

‘principal carer’ of a

child.[25] And a person will be the

‘principal carer’ of a child if the child is a ‘dependent

child’ of the person and the child has not turned

16.[26]

Since

the definition of ‘dependent child’ may include a child of a lesbian

co-mother or gay co-father, it appears that both same-sex parents can qualify

for the Bereavement Payment when applied to the Parenting Payment.

9.3.4 A

same-sex partner cannot access the Widow Allowance

Centrelink currently pays two types of widow

benefits:

  • Widow B Pension - this pension has been

    phased out since 20 March 1997.[27]

  • Widow Allowance - since 1 July 2005, this

    pension will only be paid to a woman born on or before 1 July 1955 who has

    become widowed, divorced, or separated later in life and who has no recent

    workforce experience.[28]

Both of these benefits rely on the

definition of a ‘widow’ in the Social Security Act which states that

a ‘widow’ is ‘a woman who was the partner of a man immediately

before he died’.[29] This

definition will exclude the lesbian partner of a woman who dies.

ACON states:

Lesbians and other women in same-sex relationships are not

entitled to either the Widow [Allowance] or Widow [B Pension] as this

entitlement is only made available to women who were in a heterosexual

relationship and have either been widowed, deserted or

divorced.[30]

9.3.5 A

same-sex partner cannot access concession card benefits

Concession cards provide an important form of

financial support to individuals who receive particular benefits including the

Age Pension, Carer Payment, income support benefits and a range of

allowances.[31]

Two concession cards provide health care

concessions to the ‘dependants’ of the cardholder:

  • Pensioner Concession

    Card[32]

  • Health Care

    Card.[33]

(a) A

same-sex partner is not a ‘dependant’

In relation to a concession card, the Social Security

Act defines ‘dependant’ to include a

‘partner’.[34]

Since a same-sex partner is not considered a

‘partner’, he or she will not qualify for any health care

concessions.[35]

(b) The

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

A ‘dependant’ also includes an ‘FTB

child’ or ‘dependent

child’.[36]

As discussed earlier in this chapter, the

child of a birth mother or birth father will generally qualify under these

definitions if the child is in her or his care.

The child of a lesbian co-mother or gay

co-father may also qualify as a ‘dependant’ if there is a parenting

order in his or her favour and/or the child lives with the co-mother or

co-father and the child is not cared for by the birth

parent.[37]

Thus, a child of a same-sex parent may be a

‘dependant’ for the purposes of health care

concessions.

(c) Financial

impact on a same-sex couple

Concession card holders and any qualifying dependants

can claim a number of medical and pharmaceutical benefits, including:

  • concession rates on Pharmaceutical Benefits

    Scheme (PBS) prescription

    medicines[38]

  • an increase in benefits for out-of-pocket,

    out-of-hospital medical expenses above a certain threshold, through the Medicare

    Safety Net[39]

  • assistance with certain hearing services such as

    hearing tests and hearing

    aids[40]

  • in some cases, bulk-billed general practitioner

    appointments.[41]

All

of these benefits will be denied to the same-sex partner of a health care

concession card holder.

9.3.6 A

same-sex partner cannot access a gaoled partner’s pension

If a social security pension recipient is in gaol or

in psychiatric confinement on a criminal charge, his or her social security

payment may be redirected to a dependent

‘partner’.[42] Further,

the ‘partner’ will receive the social security pension at a higher

rate (equivalent to a single

rate).[43]

A

same-sex partner is not eligible to receive this payment because he or she is

not considered a ‘partner’ in the Social Security Act.

9.4 How

do income and assets tests impact on same-sex couples?

As discussed above, a same-sex partner is denied

access to a range of benefits which are designed to assist the partner of a

person in a couple.

However, there are also a

range of social security benefits available to a person in his or her own right.

A member of a same-sex couple will be eligible for those benefits in principle.

However, eligibility for, and the amount of, those benefits are subject to

various income and assets tests. And those income and assets tests apply

differently to same-sex couples than they do to opposite-sex couples. This is

because those tests often assess the income and assets of both an individual and

his or her ‘partner’.

Since a

same-sex partner is excluded from the definition of ‘member of a

couple’ and ‘partner’, Centrelink does not assess the finances

of a person’s same-sex partner when deciding their eligibility for a

payment or the rate at which it is paid.

This

may have a number of consequences, depending on the financial circumstances of a

same-sex couple, and the type of payment for which they are

applying.[44]

It could mean that a member of a same-sex

couple is denied a payment available to a member of an opposite-sex couple in

the same financial position.

It could also

mean that a member of a same-sex couple is granted a payment not available to a

member of an opposite-sex couple in the same financial

position.

Or it could mean that a member of a

same-sex couple receives a benefit at a different rate to a member of an

opposite-sex couple in the same financial position (this is discussed in the

section 9.5 on Partnered Payment Rates).

Two

types of financial tests are used by Centrelink to assess people’s

eligibility for payments: income and assets tests. There are two different

income tests for different types of payments:

  • Pension Income Test for social security

    pensions[45]

  • Allowance Income Test for social security

    allowances[46]

Both the assets test and one of the

income tests are applied to all payments. The test result conferring the lowest

rate of payment (or no payment) is the test result used by

Centrelink.[47]

9.4.1 The

Pension Income Test treats a same-sex couple as two individuals

The Pension Income Test assesses a person’s

income and that of his or her partner. The Pension Income Test determines

whether the person is entitled to a pension, and the rate of payment to which he

or she is entitled. A person may be entitled to a full payment, part payment,

reduced payment or no

payment.[48]

Because

the Social Security Act does not recognise a same-sex partner, the

combined value of a same-sex couple’s income is irrelevant to the Pension

Income Test. A member of a same-sex couple applies as an individual for a

pension, and has his or her income assessed at the individual

level.

(a) Different

thresholds for individuals and couples

The income threshold for a couple is less than twice

the threshold for an individual. The amount of income that may be earned before

a person loses an entitlement to a full payment

is:

Individual income threshold: $128 per

fortnight

Couple income threshold: $228 per

fortnight[49]

It

may be easier - or more difficult - for a member of a same-sex couple to qualify

under the Pension Income Test, depending on the financial circumstances of a

same-sex couple.

(b) Income

distribution between same-sex partners will affect eligibility for the

pension

It may be more difficult for a member of a

same-sex couple to qualify for a full pension payment, than a member of an

opposite-sex couple, if his or her partner does not earn a significant income. A

member of a same-sex couple can only earn up to $128 per fortnight to qualify

under the test, even if his or her partner earns no income. However, a member of

an opposite-sex couple can earn up to $228 per fortnight and still qualify for a

full pension payment if his or her partner earns no

income.

The following example illustrates how a

same-sex couple could be disadvantaged by the Pension Income Test:

Sue is applying for the Age Pension. She lives with her

partner, Bill. Sue’s income is assessed at $150 per fortnight and

Bill’s income is assessed at $70 per fortnight. Together their income is

assessed at $220 per fortnight. This income is lower than the threshold for a

person in a couple ($228 per fortnight). Sue is therefore eligible for the full

Age Pension under the Pension Income Test.

Dawn is applying for the Age Pension. She lives with

her partner, Sally. Dawn is treated as a single person under the Pension Income

Test. Dawn’s income of $150 is higher than the threshold for a single

person ($128 per fortnight). Dawn cannot claim the full Age Pension.[50]

t

may also be easier for a member of a same-sex couple to qualify for a

full pension payment than a member of an opposite-sex couple, if the partner in

a same-sex couple who is not claiming the pension earns a higher income.

A member of a same-sex couple will qualify

under the Pension Income Test if his or her personal income falls below the

single rate threshold, regardless of his or her partner’s income. A member

of an opposite-sex couple will not qualify under the Pension Income Test if his

or her income falls below the couple rate threshold but his or her partner earns

a level of income that pushes their combined income over the couple threshold.

9.4.2 The

Allowance Income Test treats a same-sex couple as two

individuals

The Allowance Income Test assesses an

individual’s income and that of his or her partner. It determines whether

the person is entitled to an allowance, and the rate of payment to which he or

she is entitled.

Because the Social Security

Act does not recognise a same-sex couple, a member of a same-sex couple applies

as an individual for an allowance and has his or her income assessed at the

individual level.

(a) Same

thresholds for individuals and couples to determine eligibility for full

allowance

An opposite-sex couple can earn up to $62 each per

fortnight and still receive a full allowance payment.

A same-sex couple, who are considered as

individuals under the Act, can also earn up to $62 each per

fortnight.[51] This means there is

no difference in how the income test for a full allowance payment applies to

members of same-sex couples and opposite-sex couples in terms of

eligibility.[52]

(b) A

same-sex partner’s income is disregarded in determining the amount of the

full allowance

While there is no difference between a member of a

same-sex and opposite-sex couple in whether they will qualify for a payment,

there may be a difference in the amount of allowance paid.

The rate of allowance is progressively reduced

for every dollar over the full allowance threshold a person

earns.[53] A person’s

partner’s income will be relevant for this

test.[54] Since a same-sex

partner’s income will not be considered, a same-sex couple may financially

benefit under this test.

(c) Different

thresholds for individuals and couples to determine eligibility for part

allowance

Same-sex and opposite-sex couples will be affected

differently in relation to part allowances.

Under the Allowance Income Test a single

person can earn up to $800.50 per fortnight and still be entitled to a part

allowance. A partnered person can only earn up to $731.34 per fortnight and

still receive the part

allowance.[55]

As

a member of a same-sex couple is not recognised by social security legislation,

he or she may earn more money than a member of an opposite-sex couple and still

qualify for a payment under the Allowance Income Test.

9.4.3 The

assets test treats a same-sex couple as two individuals

The same assets test is used to determine whether a single

person or a couple qualify for all pensions and allowances.

If a person is a member of an opposite-sex couple the

assets of both members of the couple will be assessed. As a member of a same-sex

couple is considered a single person by social security legislation, only his or

her assets will be assessed. The outcome of the assets test for a member of a

same-sex couple will depend on how assets are divided between the members of the

couple.

(a) Different

thresholds for individuals and couples

There are two assets test limits: one for homeowners and

one for non-homeowners. The principal place of residence is not included in the

homeowner assets test.[56]

The amounts of assets a person or couple can hold and

still be eligible for a full payment

are:[57]

Homeowner
Non-homeowner
Single
$161 500
$278 500
Couple
$229 000
$346 000

A single person or couple may still qualify for part

payments if they exceed the

threshold.[58]

(b) Asset

distribution between same-sex partners will affect the outcome

Where a same-sex partner with relatively few assets

applies for a benefit, he or she may be eligible, even if the couple together

holds more assets than the couple threshold. This is because the assets of the

other same-sex partner will not be counted in the assets test.

As the Hon Penny Sharpe MLC explains:

if [each] member of a home owning same-sex couple [has]

assets of $150,000, [each] will meet the assets test for individuals [and be

eligible for a payment], whereas a heterosexual couple would not meet the test

on their combined assets.[59]

On the other hand, if the same-sex partner

applying for a benefit has substantially more assets than the other partner, he

or she may be disqualified if those assets are worth more than the individual

threshold, even if the couple together holds fewer assets than the couple

threshold.

For an opposite-sex couple the

asset distribution is irrelevant – the assets of both partners are added

together and the couple threshold is

applied.

The following example illustrates how

a same-sex couple could be disadvantaged by the assets test:

Richard is applying for the Age Pension. He lives with

his partner, Barbara. They are homeowners. The couple own a number of other

assets which are in Richard’s name. The assets are valued at $200 000,

which is lower than the assets test threshold for homeowners who are a member of

a couple ($229 000). Richard is therefore eligible for the full Age Pension,

under the assets test.

Keith is applying

for the Age Pension. He lives with his partner, Tom. They are homeowners. The

couple own a number of assets which are in Keith’s name. The assets are

valued at $200 000, which is higher than the threshold for a single person

homeowner ($161 500). Keith cannot claim the full Age Pension under the assets

test.[60]

9.5 How

do partnered payment rates impact on same-sex couples?

Sometimes people who qualify for a benefit will

receive a lower rate because they are in a couple and can therefore combine

expenses.[61] This lower rate is

known as a ‘partnered’ rate.

9.5.1 The

partnered rate does not apply to a same-sex couple

Generally speaking a same-sex couple will be better

off than an opposite-sex couple where there is a provision for

‘partnered’ rates. This is because the same-sex couple is treated as

two individuals, not a couple. Therefore each member of a same-sex couple will

be entitled to the individual rate.

9.5.2 Positive

financial impact for same-sex couples

For example, a member of a same-sex couple who

qualifies for the full Age Pension will receive the individual rate of $512.10

per fortnight. A member of an opposite-sex couple will receive the partnered

rate of $427.70 per fortnight.[62] This is a difference of $84.40 per

fortnight.[63]

If

both members of a same-sex couple qualify for a full Age Pension, they may

legitimately claim two times $512.20 ($1 024.40). An opposite-sex couple in the

same situation can only claim two times $427.70 ($855.40). This is a difference

of $168.80 per couple per fortnight.

The

Australian Federation of AIDS Organisations illustrates with another

example:

Greg was making $45,000 a year from his job in sales. His

partner Vince worked in the public service for several years but was eventually

forced to give up work because of poor health. Vince then received the

Disability Support Pension. Vince claimed the Disability Support Pension at the

single rate of $499.70 a fortnight, with a pharmaceutical allowance of $5.80 a

fortnight. In fact this gave him a larger payment than it would have if he and

Greg were assessed as a couple. Most of Vince’s medical expenses were

covered by his Pensioner Health Care

Card.[64]

9.6 Can

a young same-sex couple access Youth Allowance?

The rate of, and eligibility for, Youth Allowance

varies according to whether a young person is assessed as independent and he or

she passes an activity test.[65]

One of the criteria for

‘independence’ is that a person is or has been a ‘member of a

Youth Allowance couple’.[66] Another criterion for independence is that a young person is a parent of a

natural or adoptive child.[67] There

is discrimination against same-sex couples in both

definitions.

Further, the activity test has

exemptions for a person caring for a partner. These exemptions are not available

to a same-sex partner.

9.6.1 A

member of a same-sex couple is not a ‘member of a Youth Allowance

Couple’

A person is a ‘member of a Youth Allowance

couple’ if he or she is aged 15–24 and is either married or in a

marriage-like relationship with a person of the opposite sex for at least

12

months.[68]

A

member of a same-sex couple will never qualify as ‘independent’

under this criterion. An opposite-sex couple will almost always

qualify.

9.6.2 A

lesbian co-mother or gay co-father is not a parent for Youth Allowance

purposes

Another way a person may be deemed

‘independent’ for Youth Allowance purposes is if he or she is the

parent of a child.[69] A person can

only be a parent of a ‘natural child’ or adoptive child. This will

exclude the lesbian co-mother or gay co-father from qualifying as

‘independent’ for the purposes of Youth Allowance.

9.6.3 A

young same-sex couple will have to pass more rigorous income tests

A person who is ‘independent’ will qualify for

the Youth Allowance, subject to meeting an activity and a personal income

test.[70]

A person who is not ‘independent’ will have to

pass a parental income test, family assets test, family means test and personal

income test.[71]

It is far less likely that a same-sex couple will qualify

for Youth Allowance if the income and assets of their parents are taken into

account.

9.6.4 A

young same-sex couple is more likely to fail the activity test

Whether or not a member of a couple is considered

‘independent’ a person must fulfil certain activity requirements to

collect Youth Allowance.[72]

Effectively a young person must be studying or seeking

work.[73] But there are some

exceptions to this rule.

One member of a couple

will be exempt if they are unable to accept an offer of work if:

  • his or her ‘partner’s’ medical

    condition means he or she must stay home

  • a ‘partner’ is pregnant
  • accepting employment would jeopardise the current

    employment of a

    ‘partner’.[74]

However, a member of a same-sex couple will not qualify

for these exemptions because his or her partner is not recognised under the

legislation.

9.6.5 A

young same-sex couple will be paid a lower rate of Youth

Allowance

Even if a member of a same-sex couple passes the more

stringent family means and assets test and the activity test, he or she will

only be eligible for the ‘dependent’ Youth Allowance rate.

The ‘dependent’ rate is the

‘independent’ rate of $348.10 per fortnight (for a person without a

child) reduced according to how that person’s parent(s) fare under the

parental income test, family assets test, family actual means test and personal

income test.[75]

9.6.6 Negative

impact on young same-sex couples seeking Youth Allowance

ACON states that the Youth Allowance criteria means

that:

...many young GLBT people face a significant disadvantage

in gaining government financial assistance when studying, undertaking an

apprenticeship or seeking

employment.[76]

One person told the Inquiry of their experience as a young

person:

At 19 years of age I was a university student. I had been

living with my girlfriend for over a year. Youth allowance was my primary source

of income. Because I was in a same sex relationship rather than in a

heterosexual relationship I was unable to get the full amount of youth

allowance.

A person

has to qualify as independent by Centrelink standards if they are to be eligible

for the full rate of youth allowance before they are twenty one. One way to

qualify as independent is to have been living with your partner for over a year

- (i.e legally a defacto relationship). But same sex relationships don't

count.[77]

9.7 How

does the calculation of family payments impact on same-sex

families?

The federal government funds a number of payments to

families to alleviate the cost of raising and caring for children. These

payments are based on the taxable income of the family. They are widely viewed

as welfare payments even though they are governed by an act called the A New

Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance

Act).[78] To qualify for these

payments, a parent or family must care for an ‘FTB

child’.[79] There are three

types of payments:

Family Tax Benefit A (FTB A) is an income-tested payment for recognised couples or sole parents who

care for an ‘FTB child’ under 21 years, or a full-time student aged

21-24 years.[80]

Family Tax Benefit B (FTB B) is an

additional payment for families where there is one primary income earner. FTB B

is paid to qualifying families who have an ‘FTB child’ under 16

years and/or a full-time student child under 18

years.[81]

Single parents automatically receive the

maximum rate of FTB B.[82] A two

parent family where only one parent receives an income will receive FTB B at a

rate determined by the age(s) of their FTB children. If both parents earn an

income, only the lower income will be tested for the FTB B

payment.[83]

The Child Care Benefit aims to assist parents with the cost of child care.

The rate at which the benefit is paid is determined by an income test and the

type of child care a child receives. The benefit is available for either

approved or registered child

care.[84]

Rent assistance and concession cards are also

available in respect of an FTB

child.[85]

9.7.1 ‘Partner’

excludes a same-sex partner

The Family Assistance Act uses the same definitions of

‘member of a couple’ and ‘partner’ as the Social

Security Act, both of which exclude a same-sex

partner.[86]

9.7.2 ‘FTB

child’ may include the child of a lesbian co-mother or gay co-father

FTB A, FTB B and the Child Care Benefit are only

available to an adult caring for an ‘FTB

child’.[87]

The definition of ‘FTB child’ is

similar to the definition of ‘dependent child’ in the Social

Security Act, except that it explicitly recognises a parenting order from the

Family Court of Australia. Further, a child can only ever be the ‘FTB

child’ of one person at any time. This is to avoid more than one person

making social security claims in respect of the same

child.

A child who is under 18 years of age and

in an adult’s care will be considered an FTB child if:

  • the adult is jointly or solely legally

    responsible for the child’s day-to-day care, welfare and

    development[88]

  • there is a family law order, a registered

    parenting plan or parenting plan under the Family Law Act 1975 (Cth) in

    force in relation to them and they are in the care of the adult who is supposed

    to care for

    them[89]

or

  • the child is in an adult’s care and is not

    in the care of anyone else with the legal responsibility for their day-to-day

    care, welfare and development of the

    individual.[90]

An individual aged 18-20 will be an

‘FTB child’ if he or she is in an adult’s

care.[91] An individual aged 21-24

will be an ‘FTB child’ if he or she is in an adult’s care and

is undertaking full-time

study.[92]

A

gay co-father or lesbian co-mother might be able prove legal responsibility for

a child in his or her care without a parenting order. But the definition makes

it clear that if he or she does have a parenting order then he or she will be

considered legally responsible. Therefore, a child in the care of a gay

co-father or lesbian co-mother with a parenting order will be his or her

‘FTB child’.

The birth mother and

birth father (or adoptive parents) will not need a parenting order to prove

legal responsibility. To this extent, the female partner of a woman having an

ART child is treated differently to the male partner of a woman having an ART

child. This is because the male partner is presumed to be the birth father; but

the female partner must get a parenting order to assert her rights (see further

Chapter 5 on Recognising Children).

9.7.3 A

same-sex couple may be at an advantage for FTB A

FTB A is subject to an income test. The threshold

income is the same whether the child is being cared for by one or more parents.

However the tested income will include the income of the person claiming the

benefit and the person’s

‘partner’.[93]

For example, a person claiming FTB A for one

‘FTB child’ under 18 must have an assessed income of less than $94

718 to qualify for the benefit.[94] If the claimant is single, then his or her personal income must be less than $94

718. If the claimant has a ‘partner’ then their combined income must

be less than $94 718.

(a) A

same-sex couple is more likely to qualify for FTB A

A same-sex partner does not qualify as a

‘partner’. So a same-sex couple will be eligible for FTB A as long

as the person claiming the benefit has a taxable income below the individual

threshold.

This will be to the advantage of a

double-income same-sex family where the combined income is higher than the

threshold, but the individual income of the partner claiming the FTB A is below

the threshold.

(b) A

same-sex couple is more likely to qualify for a higher amount of FTB

A

The amount of FTB A is progressively reduced for

family income over $40 000 and less than $94

718.[95]

In a double-income same-sex couple only the

income of the claimant is assessed. So a same-sex couple is more likely to

qualify for a higher benefit than an opposite-sex couple in similar financial

circumstances.

9.7.4 A

same-sex couple will be at an advantage for FTB B

Family Tax Benefit B (FTB B) is an additional payment

made to sole parent families. It is also paid to a family where one member of

the couple is earning an income and the other member of the couple is primarily

a home-based carer for their

children.[96]

(a) A

same-sex parent is a sole parent for FTB B purposes

A person who does not have a ‘partner’ but

does have an ‘FTB child’ is a sole parent for the purposes of FTB B.

Since the Social Security Act does not recognise a same-sex partner as a

‘partner’, a person in a same-sex couple will be treated as a sole

parent.[97]

(b) A

sole parent will qualify for FTB B regardless of income

A sole parent will automatically receive the maximum

rate of FTB B, regardless of their

income.[98] A person with an

‘FTB child’ who does have a ‘partner’ must pass an

income test to determine eligibility for and the amount of FTB

B.[99]

So a same-sex couple with an ‘FTB child’

will automatically receive the maximum FTB B rate, regardless of income. An

opposite-sex couple in the same financial situation would only receive the

maximum rate of FTB B if the partner who is not at home caring for the child

earns less than the threshold.

The Hon Penny

Sharpe MLC comments:

Because the [Family Assistance Office] treats a parent

with a same-sex partner as a sole parent, they are also automatically eligible

to receive the maximum rate of FTB Part B. In contrast, for most couples with

children, eligibility for FTB Part B is determined by a fairly stringent test on

the income of the lower earner in the couple. Thus, in relation to FTB Part B,

the benefits of non-recognition for a parent in a same-sex couple are likely to

be greatest where the parent has a low

income.[100]

9.7.5 A

same-sex couple may receive more Child Care Benefit

The Child Care Benefit aims to assist parents

with the cost of child care paid for an ‘FTB child’. The rate at

which the benefit is paid is determined by the type of child care a child

receives, an income test and (for some benefits) an activity

test.

There are two types of care approved for

payment:

Approved child care is provided by a child care

service that has been approved to receive Child Care Benefit payments. Most long

day care, family day care, outside school hours care and vacation care are

considered approved care. All families can receive the Child Care Benefit

for up to 24 hours per ‘FTB child’ per week. Parents must fulfil a

work/training/study test or have an approved exemption to receive the Child Care

Benefit for up to 50 hours per ‘FTB child’ per

week.[101]

Registered child care is provided by nannies,

grandparents, relatives or friends who are registered as carers with the Family

Assistance Office. A family can receive the Child Care Benefit for up to 50

hours of registered child care per ‘FTB child’ per week if parents

fulfil a work/training/study

test.[102]

(a) Fees

paid by a same-sex partner will not qualify for Child Care Benefit

Where a person with an ‘FTB child’ is in a

couple, the Child Care Benefit is available irrespective of whether it is the

claimant or his or her ‘partner’ who pays the child care

fees.[103] But where a person with

an ‘FTB child’ is treated as a sole parent, that sole parent must

pay the fees to qualify for the benefit.

So a same-sex couple will only qualify for the Child

Care Benefit if the fees are actually paid by the claimant. This may be a

problem if the person with an ‘FTB child’ has a low

income.

(b) A

same-sex couple will pass the income test more easily

The following sets out the current income test for

both a sole parent and a couple with one ‘FTB child’ in approved

care.[104]

Annual Income
Child Care Benefit for approved care
Up to $34 310
Maximum rate
$34 310-$98 348
Progressively reduced rate
Over $98 348
Minimum rate

The individual with an ‘FTB child’ in a

same-sex couple will be treated as a sole parent for the purposes of the Child

Care Benefit income test. This means that only the individual’s income

will be assessed under the income test. In an opposite-sex couple, the income of

the individual and his or her partner will be

assessed.

Thus, a same-sex couple may receive

the Child Care Benefit at a higher rate than an opposite-sex couple in similar

financial

circumstances.[105]

(c) A

same-sex couple will pass the work/training/study test more easily

A person claiming the Child Care Benefit, and his or

her ‘partner’, must fulfil the work/training/study test to

receive:

  • Child Care Benefit for approved care for between 24 and

    50 hours

  • Child Care Benefit for registered care (up to 50

    hours).[106]

To

fulfil the work/training/study test, the claimant and his or her

‘partner’ must:

  • be working, looking for work, training, studying

    or doing voluntary work[107]

or

  • be receiving a Carer Allowance or Carer Payment

    for a child or adult.[108]

If the claimant is in a same-sex

couple, only he or she will need to fulfil the work/training/study test because

there is no recognised ‘partner’. If a claimant is in an

opposite-sex couple, both members of an opposite-sex couple must fulfil the test

to receive the relevant Child Care

Benefit.

This could mean that a same-sex couple

will receive Child Care Benefit where an opposite-sex couple will

not.

9.8 What

do same-sex couples say about social security law?

Many same-sex couples giving evidence to the Inquiry

were acutely aware that social security laws sometimes worked in their favour.

Almost all of those couples suggested that they would happily give up those

advantages if they were treated equally throughout all federal

laws.

9.8.1 There

are advantages and disadvantages under social security law

One person talked about some of the advantages under

social security laws:

Certainly there are some disadvantages to the lack of

recognition of same-sex relationships by the Social Security Act: you

can’t get a partner allowance in some cases. But I would guess that the

current exclusion of same-sex couples from the definition of

‘partner’ and ‘member of a couple’ benefits more people

than it disadvantages. Both members may qualify for the individual rate for

payments such as Parenting Payment, Aged and Disability Support Pension.

Similarly, the income or assets of same-sex partners are not taken into account

in determining qualification and payability for Newstart, Parenting Payment,

Sickness Allowance or the Health Care Concession

Card.[109]

Others suggested that the disadvantages

outweigh the advantages. As one person commented at the Brisbane

Forum:

There are benefits and we as a community need to

acknowledge this...for example Social Security is not threatened. However, I

don’t think the benefits in any way outweigh the negative aspects of being

a gay or lesbian member of society and being diminished [by not having our

relationships

recognised].[110]

9.8.2 It

is undignified to be treated as a sole parent when there are two

parents

Many couples talked about how insulting it was to be

treated as a ‘single’ or a ‘sole parent’ – even

though it did work to their financial advantage. For example, one lesbian mother

said the following:

When our child is born I will be considered to be a single

mother, as same-sex partners are not recognised by the social welfare system. I

have no intention of claiming a Single Parent benefit, as I will not be a single

parent and don't think it is right to claim the benefit. As a good citizen I am

responsibly not claiming benefits (even though Centrelink insist that I will be

eligible), but I am excluded from accessing other legitimate benefits because I

am in a same-sex relationship. Where is the justice in

this?[111]

9.8.3 Do

not remove the advantages without removing the disadvantages

Many people expressed concern that the government

might change social security laws to remove the benefits for same-sex couples,

but leave other laws which discriminate against same-sex

couples.[112]

At the Melbourne Public Hearing Eilis Hughes

stated that:

This is the aspect of this [I]nquiry about which I had

mixed feelings. I was worried about drawing attention to the apparent advantage

we can enjoy in these circumstances. I know that there are people who

don’t want to lose these benefits, and there are cynics amongst us who

think that this [I]nquiry might end up with Centrelink recognizing our

relationships to reduce the welfare payments they need to make, but that other

areas of disadvantage won’t change as

quickly.[113]

A number of submissions were especially

concerned about the potential impact of changes to social security law on People

living with HIV/AIDS (PLWHA). Geoff Holland provides an example:

Of greatest concern, however, is the financial impact on

same sex couples where both are reliant on either a social security pension or

benefit. For example, recognition of same sex relationships would mean that a

couple, where both were living with HIV/AIDS and on a Disability Support

Pension, would have their payments adjusted from receiving two payments at the

rate paid to singles to payment at the rate paid to members of a couple, a

reduction from $499.70 per fortnight per person to $417.20 per fortnight each, a

loss of over $80 per fortnight. Almost 60% of PLWHA who receive government

pensions or benefits are currently living below the poverty line and financial

pooling is done by over 25% PLWHA in same sex relationships as the only means of

protection from extreme financial

hardship.[114]

ACON

reiterated this concern:

Eligibility for a number of benefits and pensions under

the Social Security Act is subject to means testing. Where a person is a

‘member of a couple’, the income and assets of their partner may

also be taken into account in determining whether an applicant can receive

payment under the Act. As people in same-sex relationships do not fit within the

definition of a ‘member of a couple’, they are advantaged by this

exclusion. Removing this discrimination would have a detrimental impact on the

financial situation of many low-income GLBT people. As a recent survey of PLWHA

has shown that more than half of the respondents were receiving some form of

social security, reform would particularly impact on the health and wellbeing of

PLWHA [People living with

HIV/AIDS].[115]

Several

people argued that reform to social security law should be gradual so as to

mitigate the negative impact on those affected:

Given that changes to social security would bring

significant obligations as well as rights to people in same-sex relationships,

reform in this area should not take place before rights are given in legislative

areas. Further a “phase in” period should take place to allow for

people who will be negatively impacted to adjust their financial

situation.[116]

9.9 Does

social security legislation breach human rights?

This chapter identifies the discrimination that can

occur because the definitions of ‘member of couple’ and

‘partner’ in social security laws do not recognise same-sex

relationships.

The chapter explains that the

non-recognition of a same-sex partner can have both a positive and a negative

financial impact on same-sex couples. The failure of the Social Security Act to

recognise same-sex relationships can mean that a same-sex couple is denied

benefits available to their opposite-sex counterpart. For example a same-sex

partner cannot access the Partner Allowance, bereavement benefits, Widow

Allowance and Concession Card benefits. To this extent the Inquiry finds that

the Social Security Act breaches the right to non-discrimination under article

26 of the ICCPR.

Denying certain social

security benefits to same-sex couples will also breach articles 9 and 2(2) of

the International Covenant on Economic, Social and Cultural Rights (ICESCR). Together those provisions state that where Australia takes steps to

provide social security benefits, it must do so without discrimination on the

grounds of sexuality.

Further, to the extent

that the children of a couple will be at a disadvantage because access to

certain social security rights are denied, there may be a breach of articles 2

and 26(1) of the Convention on the Rights of the Child (CRC). Those

provisions state that a child is entitled to benefit from social security

without discrimination.

For further explanation

of these principles see Chapter 3 on Human Rights Protections.

9.10 How

should social security legislation be amended to avoid future

breaches?

This chapter describes the treatment of same-sex

couples and families regarding a range of entitlements available under the

Social Security Act and the Family Assistance Act.

The narrow definitions in the Social Security

Act mean that a same-sex partner is denied a range of social security

entitlements. However, unlike many of the other laws discussed in this report,

those definitions may also mean that a same-sex couple end up financially in

front of an opposite-sex couple.

Whether

same-sex couples end up financially in front or behind, it is clear that they

are treated differently to opposite-sex

couples.

The following sections summarise the

cause of this differential treatment and how to remedy it.

9.10.1 Narrow

definitions are the main cause of discrimination

Both the advantages and disadvantages flowing to a

same-sex couple are connected to the fact that social security law does not

recognise a same-sex partner as a

‘partner’.

The child of a birth

mother or birth father will almost always qualify as a ‘dependent

child’ or ‘FTB child’ because the birth mother or birth father

are presumed to have legal responsibility for a child. The child of a lesbian

co-mother or gay co-father may also qualify as a ‘dependent child’

or ‘FTB child’, but they must find a way to prove ‘legal

responsibility’.

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 best way for a

lesbian or gay co-parent to prove legal responsibility.

However, for many families seeking welfare

support, the cost and time involved in seeking a parenting order may impose too

high a burden. Thus a lesbian co-mother or gay co-father may face great

uncertainty in accessing benefits which are readily available to a birth mother

or birth father.

9.10.2 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 Commonwealth

    legislation (for example retain the terms ‘partner’ and

    ‘member of a couple’ in the Social Security Act)

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

    couples (for example, redefine ‘partner’ and ‘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 both the children of

same-sex couples and the parents of those children.

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 an ART child born to a lesbian couple would automatically be the

‘dependent child’ of both members of the lesbian couple (like he or

she would be if born to an opposite-sex couple), without the need for parenting

orders.

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.

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 has already occurred in

the case of the definition of ‘FTB child’ and should be extended to

the definition of ‘dependent child’. However, the Inquiry reiterates

that the cost of obtaining a parenting order may be prohibitive in the case of

parents who are seeking welfare assistance.

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.

9.10.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this chapter:

A New

Tax System (Family Assistance) Act 1999 (Cth)

‘member of a couple’ (s 3 – no need to

amend if ‘member of a couple’ in the Social Security Act is

amended)

‘partner’ (s 3 – no need to amend if

‘member of a couple’ in the Social Security Act is

amended)

‘FTB child’ (s 22 – 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)

Social Security Act 1991 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependant’ (s 6A(1) – no need to amend

if ‘partner’ and ‘dependent child’ are amended and

‘FTB child’ (in A New Tax System (Family Assistance) Act 1999 (Cth)) may also recognise the child of a lesbian co-mother or gay co-father

through reformed parenting presumptions or adoption laws)

‘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)

‘independent’ (s 1067A – no need to

amend if ‘partner’ and ‘member of a Youth Allowance

couple’ is amended and the child of a lesbian co-mother or gay co-father

may 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’)

‘member of a Youth Allowance couple’ (s 1067C

– amend to include a ‘de facto partner’ and replace

‘marriage-like relationship’ with ‘de facto

relationship’)

‘parent’ (s 5(1)(a) – amend to ensure

that a lesbian co-mother or gay co-father may be recognised through reformed

parenting presumptions or adoption laws)

‘parent’ (s 5(1)(b) – no need to amend

if ‘member of couple’ is amended)

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

‘member of a couple’ is amended)

‘principal carer’ (s 5(15) – no need to

amend if ‘dependent child’ is amended)

‘widow’ (s 23 – amend to remove a

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

‘member of a couple’ is amended)

‘young person’ (s 5(1B) – no need to

amend)


Endnotes

[1] See also A New Tax System (Bonuses for Older Australian) Act 1999 (Cth),

which takes its definition from the Veterans’ Entitlement Act 1986 (Cth); Farm Household Support Act 1992 (Cth); Student Assistance Act

1973 (Cth).
[2] Social Security Act 1991 (Cth), s

4(1).
[3] Social Security Act 1991 (Cth), s 4(2)(b)(i).
[4] See also Anti-Discrimination Commission Queensland, Submission 264; Gay and

Lesbian Rights Lobby (NSW), Submission 333; Law Council of Australia, Submission

305; Media, Entertainment and Arts Alliance, Submission 289; Victorian Gay and

Lesbian Rights Lobby, Submission 256; Young Lawyers Human Rights Committee,

Submission

311.
[5] Social Security Act 1991 (Cth), s 4(2)(b)(iii).
[6] Social Security Act 1991 (Cth), ss 4(3),

4(3A).
[7] Such as the Parenting Payment: Social Security Act 1991 (Cth), s 500.
[8] Such as Youth Allowance: Social Security Act 1991 (Cth), ch 2, pt 2.11

and ch 3, pt 3.5; Austudy: Social Security Act 1991 (Cth), ch 2, pt 2.11A

and ch 3, pt

3.5A.
[9] For an explanation of these terms see the Glossary of

Terms.
[10] However, this is not always the case. For example, the definition of

‘parent’ in s 5(1)(a) of the Social Security Act 1991 (Cth)

appears to exclude a lesbian co-mother or gay co-father. A second definition of

parent in s 5(1)(b) of the Social Security Act 1991(Cth) applies to pt

2.11 (Youth Allowance) and s 1067G (the Youth Allowance Rate Calculator).

Although this definition is broader than the definition in s 5(1)(a), it may

still exclude a lesbian co-mother or gay co-father.
[11] Social Security Act 1991 (Cth), s 5(1B). A student may not earn more than

$6403 within the relevant financial year to be considered a ‘student

child’: Social Security Act 1991 (Cth), s

5(1B).
[12] Social Security Act 1991 (Cth), s 5(2).
[13] Note that the Widow B Pension has been phased out since 20 March 1997, and is

only available to women who were receiving the Pension before this time: Social Security Act 1991 (Cth), s

362A(1).
[14] Australian Government, Centrelink, Partner Allowance, http://www.centrelink.gov.au/internet/internet.nsf/payments/partner.htm,

viewed 11 April

2007.
[15] The Partner Allowance has not been granted to new applicants since 20

September 2003: Social Security Act 1991 (Cth), s 771(1).
[16] The person’s partner must be at least 21 years old and receiving Youth

Allowance, Austudy payment, Newstart Allowance, Special Benefit, Rehabilitation

Allowance, Age Pension, Disability Support Pension, Mature Age Allowance,

Service Pension or Income Support Supplement, or receiving assistance under a

Student Financial Supplement Scheme or an income-tested living allowance under

an Aboriginal study assistance scheme: Social Security Act 1991 (Cth), s

771HA(1).
[17] Social Security Act 1991 (Cth), s 4. See also Gay and Lesbian Rights

Lobby (NSW), Submission 333; Young Lawyers for Human Rights Committee,

Submission

311.
[18] Social Security Act 1991 (Cth), s 1066.

Australian Government, Centrelink, Bereavement Allowance Payments Rate

Factsheet, 1 January – 19 March 2007, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co039_0701/$file/co039_0701en.pdf,

viewed 9 March 2007. The allowance can be extended if the surviving partner is

pregnant: s 315(1)(e)(ii).
[19] To receive Bereavement Payment upon the death of their partner, a person’s

partner must have been receiving a social security pension, a service pension or

income support supplement or have been a long-term social security recipient: Social Security Act 1991 (Cth), ss 82(1)(d). See also Australian

Government, Centrelink, How much Bereavement Payment do I get? at http://www.centrelink.gov.au/internet/internet.nsf/payments/pay_how_bereavepay.htm,

viewed 11 December

2006.
[20] Michael Burge, Submission

134.
[21] Australian Coalition for Equality, Submission

228.
[22] Young Lawyers Human Rights Committee, Submission

311.
[23] Other relevant qualifying payments include Social Security Act 1991 (Cth), ss 235, 236 (Carer Payment), 567G (Youth Allowance), 660M (New Start

Allowance); A New Tax System (Family Assistance) Act 1999 (Cth), s 31

(Family Tax

Benefit).
[24] Social Security Act 1991 (Cth), s

512.
[25] Social Security Act 1991 (Cth), ss 5(15),

500D,
[26] Social Security Act 1991 (Cth),

5(15).
[27] Social Security Act 1991 (Cth), s

362A(1).
[28]Social

Security Act 1991 (Cth), ss 408AA, 408BA(2). Currently the rate of Widow

Allowance is $420.90 per fortnight for a single person with no children and

$455.30 per fortnight for a single person with children: Australian Government,

Centrelink, Mature Age Payment Rates Fact Sheet, 1 January 2007 –

19 March 2007, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co037_0701/$file/co037_0701en.pdf,

viewed 9 March

2007.
[29] Social Security Act 1991 (Cth), s

23.
[30] ACON, Submission 281. See also Australian Coalition for Equality, Submission

228; University of Western Australia, Submission

185.
[31] The Pensioner Concession Card is available to people receiving a social security

income support payment, in the following circumstances: people receiving a

social security pension (such as Age Pension, Disability Pension, Parenting

Payment (Single) and Carer Payment); people receiving Mature Age Allowance;

people over 60 years who have been in continuous receipt of one (or a

combination) of the following payments for nine months or more: Newstart

Allowance, Sickness Allowance, Widow Allowance, Parenting Payment (Partnered),

Special Benefit, Partner Allowance, a social security pension; people with a

partial work capacity who are receiving Newstart Allowance or Youth Allowance as

a job seeker; single principal carers of dependent child/ren who are receiving

Newstart Allowance or Youth Allowance as a job seeker; and certain people who

are participating in the Pensions Loan Scheme, or Community Development

Employment Projects: Social Security Act 1991 (Cth), s 1061ZA. The Health

Care Card is available to people receiving a qualifying income support benefit,

or receiving certain income support supplementary payments; to people in

specific circumstances, such as those receiving the fortnightly maximum rate of

Family Tax Benefit Part A by instalment, a parent caring for children with

disabilities and receiving Carer Allowance (child), or a Mobility Allowance

customer who does not qualify for a Pensioner Concession Card: Social

Security Act 1991 (Cth), s

1061ZK.
[32] Australian Government, Centrelink, A Guide to

Centrelink Concession Cards, http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 19 March

2007.
[33] Australian Government, Centrelink, A Guide

to Centrelink Concession Cards, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 7 February

2007.
[34] Social Security Act 1991 (Cth), s 6A(1).
[35] Social Security Act 1991 (Cth), s 4.
[36] Social Security Act 1991 (Cth), s 6A(1).
[37] The Health Care Card may be available to some adults who are entitled to receive

Family Tax Benefit Part A at the maximum rate. That is, if a person or

family’s annual income is less than $40 000: Social Security Act

1991 (Cth), s

1061ZK(4).
[38] Australian Government, Centrelink, A Guide to Centrelink Concession

Cards, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 7 February 2007.
[39] Australian Government, Centrelink, A Guide to Centrelink Concession

Cards, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 7 February 2007.
[40] Australian Government, Centrelink, A Guide to Centrelink Concession

Cards, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 7 February 2007.
[41] Australian Government, Centrelink, A Guide to Centrelink Concession

Cards, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co153_0610/$file/co153_0610en.pdf,

viewed 7 February 2007.
[42] Social Security Act 1991 (Cth), s

1159(1).
[43] A person is partnered if the person is a member of a couple and their partner is

in gaol: Social Security Act 1991 (Cth), s 4(11)(f). The higher rate of

payment for partnered persons applies to other payments, for example the

Parenting Payment: Social Security Act 1991 (Cth), s 1068B-C2, Table C,

item

4.
[44] See ACON, Submission 281; Australian Coalition for Equality, Submission 228; Gay

and Lesbian Rights Lobby (NSW), Submission 333; The Hon Penny Sharpe MLC,

Submission 341; University of Western Australia, Submission

185.
[45] Applies to the following payments: Age Pension, Disability Support Pension, Wife

Pension, Bereavement Allowance, Widow ‘B’ Pension, Carer Payment

(adult), Carer Payment (child), Mature Age Allowance granted before 1 July 1996,

Parenting Payment (Sole Parents): Australian Government, Centrelink, Income

Test for Pensions, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartc.htm,

viewed 5 February 2007. See Pension Rate Calulators A and C and Parenting

Payment Calculator: Social Security Act 1991 (Cth), ss 1064, 1066, 1068A,

1068B.
[46] Applies to the following payments: Newstart Allowance, Partner Allowance,

Sickness Allowance, Widow Allowance, Mature Age Allowance granted after 1 July

1996: Australian Government, Centrelink, Allowances Income Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartd.htm,

viewed 5 February 2007. These payments use Benefit Rate Calculator B, Social Security Act 1991 (Cth), s 1068. Youth Allowance, Austudy and

ABSTUDY use income tests that are similar to the Allowance Income test. They are

dealt with in this chapter under the Allowance Income Test, although rates of

thresholds are different. See Social Security Act 1991 (Cth), pt 3.5

(Youth Allowance Rate Calculator), pt 3.5A (Austudy Rate Calculator).
[47] Australian Government, Centrelink, Assets Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartab.htm,

viewed 5 February 2007.
[48] Income earned above the threshold levels will reduce the amount of pension

payable by 40 cents in the dollar for single people and by 20 cents in the

dollar each for couples: Australian Government, Centrelink, Income Test for

Pensions, http://www.centrelink.gov.au/internet/internet.nsf/payments/chartc.htm,

viewed 23 March

2007.
[49] Australian Government, Centrelink, Income Test for Pensions, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartc.html,

viewed 5 February 2007: to be eligible for a part pension payment a single

person must earn less than $1422.75 per fortnight; a couple less than $2381.00.

Different thresholds apply to the single and couple rate for full and part

payments if a single or couple have a child or children.
[50] See further, Australian Government, Centrelink, Income Test for Pensions,

at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartc.htm,

viewed 5 February

2007.
[51] Australian Government, Centrelink, Allowances Income Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartd.htm,

viewed 5 February 2007.
[52] Income tests for Youth Allowance, Austudy and ABSTUDY also apply the same income

threshold for full payment to single and partnered people, so they will affect

same-sex and opposite-sex couples in the same way: Single or partnered, away

from home, students and Australian apprentices, may earn up to $236 per

fortnight. Single or partnered, away from home, job seekers, may earn up to $62

per fortnight: Australian Government, Centrelink, Personal Income Test,

at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartda.htm,

viewed 5 February

2007.
[53] Australian Government, Centrelink, Allowances Income Test, http://www.centrelink.gov.au/internet/internet.nsf/payments/chartd.htm, viewed

23 March 2007.
[54] See steps 6 and 11 of the ‘Method Statement’ at Social Security

Act 1991 (Cth), s 1068-G1. See also Australian Government, Centrelink, Allowances Income Test, http://www.centrelink.gov.au/internet/internet.nsf/payments/chartd.htm, viewed

23 March 2007.
[55] Australian Government, Centrelink, Allowances Income Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartd.htm,

viewed 23 March 2007. The income thresholds for part allowances of Youth

Allowance, Austudy and ABSTUDY are also different for single and partnered

people (with or without dependants) and allow a single person to earn more than

a partnered person and still qualify for a part allowance. This again would make

it easier for a member of a same-sex couple to qualify under this income test

for a part payment, compared to a member of an opposite-sex couple with a

similar income. For Austudy Rate Calculator see Social Security Act 1991 (Cth), pt 3.5A; for Youth Allowance Rate Calculator see Social Security Act

1991 (Cth), pt

3.5.
[56] Social Security Act 1991 (Cth), s 1118(1). See further Australian

Government, Centrelink, Exempt Assets, at http://www.centrelink.gov.au/internet/internet.nsf/factors/assets_exempt.htm,

viewed 5 February 2007.
[57] Australian Government, Centrelink, Assets Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartab.htm#a,

viewed 1 March 2007.
[58] Australian Government, Centrelink, Assets Tests, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartab.htm#a,

viewed 6 March 2007: For homeowners, a single person can hold assets up to $334

250, a couple up to $516 500, and still be eligible for a part payment. For

non-homeowners, a single person can hold assets up to $451 250 and a couple up

to $633 500, for a part payment.
[59] The Hon Penny Sharpe MLC, Submission 341. See also Australian Coalition for

Equality, Submission

228.
[60] Australian Government, Centrelink, Assets Test, at http://www.centrelink.gov.au/internet/internet.nsf/payments/chartab.htm#a,

viewed 28 February

2007.
[61] Pensions paid at a partnered rate include Age

Pension, Rent Assistance, Disability Support Pension, Carer Payment, Mature Age

Allowance, Pension Bonus Scheme, Veterans’ Entitlements Pension Bonus

Scheme.
[62] Australian Government, Centrelink, How much Age Pension do I get?, at http://www.centrelink.gov.au/internet/internet.nsf/payments/pay_how_agepens.htm,

viewed 9 March

2007.
[63] Australian Government, Centrelink, How much

Age Pension do I get?, at http://www.centrelink.gov.au/internet/internet.nsf/payments/pay_how_agepens.htm,

viewed 5 February 2007: Half the couple rate is payable to one member of a

couple if their partner is not receiving a pension, benefit or allowance.
[64] Australian Federation of AIDS Organisations, Submission

285.
[65] Social Security Act 1991 (Cth), s 1067G.
[66] Social Security Act 1991 (Cth), s

1067A(2): Other criteria include persons with a dependent child, persons aged 25

years or more, orphan, if parents cannot exercise responsibilities, refugees,

persons in state care, unreasonable to live at home, people who are

self-supporting, people who are disadvantaged, people with a partial capacity to

work.
[67] Social Security Act 1991 (Cth), s

1067A(3).
[68] Social Security Act 1991 (Cth), s

1067C(1): Those 12 months must be while the person was over the age of consent

as determined in the state or territory in which they live.
[69] Social Security Act 1991 (Cth), s

1067A(3).
[70] Social Security Act 1991 (Cth), ss 541, 1067G-B1.
[71] Social Security Act 1991 (Cth), s 1067G.

For example, no Youth Allowance payments are made if the family’s assets

exceed $535 750. Australian Government, Centrelink, Income and Assets Tests

for Youth Allowance, at http://www.centrelink.gov.au/internet/internet.nsf/ea3b9a1335df87bcca2569890008040e/

df4be2480e2aa4aaca25728e00156df2!OpenDocument,

viewed 23 March

2007.
[72] Social Security Act 1991 (Cth), s

540.
[73] Social Security Act 1991 (Cth), s

541(1).
[74] Social Security Act 1991 (Cth), s 541D(1A).
[75] For an ‘independent’, the rate for a partnered or single person

without a child is $348.10 per fortnight. Australian Government, Centrelink, How much Youth Allowance do I get?, at http://www.centrelink.gov.au/internet/internet.nsf/payments/pay_how_yal.htm,

viewed 6 March 2007. This payment will be reduced for a person who is considered

dependent according to how that person’s parent(s) qualify under the

parental income test, family assets test, family actual means test and personal

income test. See Social Security Act 1991 (Cth), s 1067G for these tests.
[76] ACON, Submission 281. See also The Hon Penny Sharpe MLC, Submission 341;

National Union of Students, Submission 224; Gay and Lesbian Rights Lobby (NSW),

Submission 333; University of Western Australia, Submission

185.
[77] Farida Iqbal, Submission

282.
[78] These payments are governed by the A New Tax System (Family Assistance) Act

1999 (Cth).
[79] A New Tax System (Family Assistance) Act (Cth), ss 21,

42.
[80] Australian Government, Family Assistance Office, Factsheet – Family Tax

Benefit Part A, at

http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/publicatio…,

viewed 4 April

2007.
[81] Australian Government, Family Assistance Office, Factsheet – Family

Benefit Part B, at http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/publications-factsheets-ftbb.htm,

viewed 4 April 2007.
[82] Australian Government, Family Assistance Office, Can I get Family Tax Benefit

Part B?, http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/payments-ftbb-get_ftbb.htm#4,

viewed 4 April

2007.
[83] Australian Government, Family Assistance Office, Two Parent Families, at http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/

payments-ftbb-how_much-two_parents,

viewed 28 February 2007: The FTB B will stop if the parent earning the lesser

amount earns above $21 572, if the youngest child is under five; and it will

stop at $16 790 if the youngest child is between five and 18.
[84] A New Tax System (Family Assistance) Act 1999 (Cth), ss 42, 43, 44, 45.

See also Australian Government, Family Assistance Office, Factsheet - Child

Care Benefit, at http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/publications-factsheets-ccb.htm,

viewed 28 February 2007.
[85] Rent Assistance is available to eligible people who receive FTB A and pay rent

over a specified amount in the private rental market. Australian Government,

Family Assistance Office, Rent Assistance, http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/payments-ra,

viewed 23 March 2007. Health Concession Cards are available to people receiving

FTB A at the maximum rate in fortnightly instalments. Australian Government,

Family Assistance Office, Health Care Card, http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/payments-hcc,

viewed 23 March 2007. See also Victorian Gay and Lesbian Rights Lobby,

Submission

256.
[86] A New Tax System (Family Assistance) Act 1999 (Cth), s 3; Social

Security Act 1991 (Cth), ss 4(1),

4(2).
[87] A New Tax System (Family Assistance) Act 1999 (Cth), ss 21, 42, 44,

45.
[88] A New Tax System (Family Assistance) Act 1999 (Cth), s

22(2)(b).
[89] A New Tax System (Family Assistance) Act 1999 (Cth), s

22(3).
[90] A New Tax System (Family Assistance) Act 1999 (Cth), s

22(4).
[91] A New Tax System (Family Assistance) Act 1999 (Cth), s

22(5).
[92] A New Tax System (Family Assistance) Act 1999 (Cth), s

22(6).
[93] A New Tax System (Family Assistance) Act 1999 (Cth), sch

1.
[94] Individual threshold is $40 000 for the full benefit and up to $94 718 for a

reduced rate of benefit if there is one child under 18 years: Australian

Government, Centrelink, A Guide To Australian Government Payments, 1

January – 19 March 2007, p3, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co029_0702/$file/co029_0702en.pdf,

viewed 28 February 2007.
[95] Australian Government, Centrelink, A Guide To Australian Government

Payments, 1 January – 19 March 2007, pp2-3, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co029_0702/$file/co029_0702en.pdf,

viewed 28 February

2007.
[96] See A New Tax System (Family Assistance) Act 1999 (Cth), sch 1, pt 4, div

1, subdiv B, cl

29A(3).
[97] A New Tax System (Family Assistance) Act 1999 (Cth), sch 1, cl 29(1)(a):

provides the rate for a person receiving FTB B, who is ‘not a member of a

couple’.
[98] A New Tax System (Family Assistance) Act 1999 (Cth), sch 1, cl 29.

Australian Government, Family Assistance Office, Can I get Family Benefit

Part B?, at http://www.familyassist.gov.au/Internet/FAO/fao1.nsf/content/payments-ftbb-get_ftbb.htm#4,

viewed 28 February 2007.
[99] See A New Tax System (Family Assistance) (Cth), sch 1, pt 4, div 1,

subdiv A, cl 29(2). Australian Government, Centrelink, A Guide To Australian

Government Payments, 1 January – 19 March 2007, p3, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co029_0702/$file/co029_0702en.pdf,

viewed 28 February 2007: The parent earning the lesser amount can earn up to

$4234 of the 2006-07 financial year before it affects Family Tax Benefit Part B.

The amount of FTB B will reduce by 20 cents for each dollar earned above $4234.

The FTB B will stop if the parent earning the lesser amount earns above $21 572

if the youngest child is under five; and $16 790 if the youngest child is

between five and 18.
[100] The Hon Penny Sharpe MLC, Submission 341. See also Law Council of Australia,

Submission

305.
[101] A New Tax System (Family Assistance)

Act 1999 (Cth), ss 42, 43, pt 3, div 4, subdivs F and G. Australian

Government, Centrelink, A Guide To Australian Government Payments, 1

January – 19 March 2007, p5, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co029_0702/$file/co029_0702en.pdf,

viewed 28 February 2007.
[102] A New Tax System (A New Tax System) 1999 (Cth), ss 45(1)(e), 84.

Australian Government, Family Assistance Office, Guide to Payments, 1

January – 19 March 2007, pp5-6, at http://www.centrelink.gov.au/internet/internet.nsf/filestores/co029_0702/$file/co029_0702en.pdf,

viewed 28 February 2007.
[103] A New Tax System (Family Assistance) Act 1999 (Cth), ss

43-45.
[104] The income threshold for the minimum rate increases with the number of children,

so a sole parent or couple with two children in care will receive the minimum

rate if their income exceeds $106 629; for three children the minimum rate

applies after income of $121 130. Add $20 221 for each extra child: Australian

Government, Family Assistance Office, Child Care Benefit, at http://www.familyassist.gov.au/Internet/FAO/FAO1.nsf/content/

payments-ccb-how_much-more_32485.htm,,

for financial year 06-07 viewed 6 March

2007.
[105] For one child in care the maximum benefit is $148.00 per week (50 hours care) or

$2.96 per hour. The rate increases per child if there are more children in care.

The minimum rate of Child Care Benefit applies to non-schooled children and is

up to $24.85 per week or $0.497 per hour per child: Australian Government,

Family Assistance Office, Guide to Payments, Child Care Benefit, http://www.familyassist.gov.au/Internet/FAO/FAO1.nsf/

content/payments-ccb-how_much-less_32485.htm,

viewed 23 February

2007.
[106] A New Tax System (Family Assistance) Act 1999 (Cth), ss 45(1)(e), 54.

Australian Government, Family Assistance, Work/Training/Study Test, at http://www.familyassist.gov.au/Internet/FAO/FAO1.nsf/content/-work_study_test.htm,

viewed 23 February 2007.
[107] This is implied by A New Tax System (Family Assistance) Act 1999 (Cth),

ss 14-17A. For approved care, work or work-related commitments must be carried

out for at least 15 hours per week: Australian Government, Family Assistance

Office, Work/Training/Study Test, at http://www.familyassist.gov.au/Internet/FAO/FAO1.nsf/content/-work_study_test.htm,

viewed 23 February

2007.
[108] A New Tax System (Family Assistance) (Cth), s 15(1)(b)-(c). Australian

Government, Family Assistance Office, Work/Training/Study Test, at http://www.familyassist.gov.au/Internet/FAO/FAO1.nsf/content/-work_study_test.htm,

viewed 23 February 2007.
[109] Lismore Forum, 11 November 2006.
[110] Brisbane Forum, 10 October 2006.