Same-Sex: Same Entitlements Report
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Same-Sex: Same Entitlements
A community guide to the National Inquiry into
Discrimination against People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits
At least 20 000 same-sex couples in Australia experience systematic
discrimination on a daily basis.
Fifty-eight federal laws deny same-sex
couples and their children basic financial and work-related entitlements which
are available to opposite-sex couples and their children.
the Australian Human Rights Commission's (then known as the Human Rights and Equal Opportunity Commission) Same-Sex: Same
Entitlements Inquiry travelled around Australia holding public hearings and
community forums to hear, first hand, about the impact of discriminatory laws on
same-sex couples and their children.
The public consultations, and some
of the 680 written submissions received by the Inquiry, clearly describe the
financial and emotional strain placed on same-sex couples who are trying to
enjoy their lives like everybody else in the community.
guide sets out just a small sample of the federal financial and work-related
entitlements and benefits which are denied to same-sex couples and their
For a more comprehensive analysis of the federal laws which
discriminate against same-sex families and further information on how those laws
impact on same-sex couples and their children, please go to the Inquiry’s
main report at: www.humanrights.gov.au/samesex.
“I am a first-class taxpayer but a second-class
INQUIRY FINDINGS AND
The Same-Sex: Same Entitlements Inquiry finds that there are 58
federal laws which discriminate against same-sex couples and their children.
The Inquiry recommends simple amendments to those laws; just change the
definitions describing de facto relationships to include same-sex couples.
The Same-Sex: Same Entitlements Inquiry also recommends changes
to federal, state and territory laws to recognise the relationship between a
child and both parents in a same-sex couple. This would better protect the best
interests of the child.
People who gave evidence to the Inquiry in Sydney: Andreas Ohm and Jim Woulfe, Michelle McCormack and Lynne Martin with son Tom, Michael Burge, Maria Vidal and Susan Everingham with daughter Antonia, and Jiro Takamisawa. Photograph by Sahlan Hayes / Fairfaxphotos.
Same-sex couples do not always enjoy the same employment conditions as
opposite-sex couples. This can affect the economic livelihood, work security and
family life of same-sex couples and their children.
For example, same-sex couples are not guaranteed the following basic work
entitlements under federal law:
- parental leave
- carer’s leave
- compassionate leave
- travel entitlements
“My (same-sex) partner suffers a long term debilitating illness and
as I am the sole wage earner in our household/family it is very difficult for me
to take time off to care for her...when I do need to stay home to care for her,
I have to use my annual leave as she is not legally recognized as my partner,
therefore I am not entitled to carer’s
DISCRIMINATION IN WORKERS’
Usually the partner of a person who has been injured
or killed in a workplace accident can expect financial support through
workers’ compensation payments.
However, the same-sex partner of a
worker covered by Comcare and other federal workers’ compensation schemes
is not entitled to lump sum workers’ compensation death benefits. Nor is a
same-sex partner taken into account when calculating the federal workers’
compensation sums available to an incapacitated employee.
“An opposite-sex partner of an employee covered by a federal
workers’ compensation scheme has the security of knowing that he or she
will be financially supported if his or her partner dies or is injured on the
job. A same-sex partner has no such security.”
DISCRIMINATION IN TAX BENEFITS
Tax is one
of the main financial expenses facing any family in Australia.
couples will often pay more tax than opposite-sex couples because they are not
eligible for a range of rebates and tax concessions. Further, the same-sex
parents of children may miss out on tax benefits intended to help
For example, same-sex couples are not entitled to the following
- dependent spouse tax offset
- tax offset for partner’s parent
- housekeeper tax offset
- child-housekeeper tax offset
- zone tax offset for a partner
- capital gains tax concessions when transferring property to a partner
- fringe benefits tax exemptions for a partner
“We are an average suburban family. We are working hard and
contributing to our community. We don’t want special treatment –
just what others can expect from their legal and social community. Our rights
are denied simply because of who we love. We just want
Photograph by Michaela Olijnyk.
DISCRIMINATION IN SOCIAL SECURITY BENEFITS
Social security is a safety net for people who are unable to financially
However, social security laws treat same-sex couples
differently to opposite-sex couples.
Sometimes the differential
treatment has a negative impact on same-sex families. For example, a same-sex
partner is not entitled to the following benefits:
- partner allowance
- bereavement benefits
- widow allowance
- concession card benefits
- gaoled partner’s pension
Other times the differential
treatment benefits a same-sex couple. This is because the law treats the couple
as two single people, so a same-sex partner can access benefits normally
available to singles.
Several same-sex couples told the Inquiry that they
would willingly trade the advantages in social security law for equal treatment
under all federal laws.
“We are a family
unit—our family acknowledges it, our work colleagues acknowledge it and
our community acknowledges it; why then, can’t the Australian Government
do the same by affording us the same rights as heterosexual de facto
DISCRIMINATION IN VETERANS’ ENTITLEMENTS
Australian Defence Force veterans and their families are generally entitled
to a range of special benefits and entitlements in recognition of their military
However, many of those benefits are not available to veteran same-sex couples
and their children.
For example, the same-sex partner of a veteran cannot access the following
- War Widow/Widower’s Pension
- Bereavement Payment
- Gold Repatriation Card
- Income Support Supplement
- Partner Service Pension
- military compensation
“Gay war veterans laid down their lives or were injured for our
country. They protected us. We should protect them and their families. Why
are their families less deserving of being afforded this protection?”
DISCRIMINATION IN HEALTH CARE SUBSIDIES
Medicare and Pharmaceutical Benefits Scheme (PBS) Safety Nets provide extra
subsidies to families with high medical costs.
However, a same-sex
couple will have to spend much more on doctors visits and medicines than an
opposite-sex couple to qualify for the extra subsidies. This is because the law
does not recognise a same-sex couple as a family.
“The exclusion of same-sex couples financially disadvantages an
already marginalised group, has a negative impact on dependent children of
same-sex couples and is out of touch with community values. Every couple living
together in a domestic relationship should have access to the Safety Net,
regardless of their sexuality.”
“Because we are not recognised as a couple for the Medicare Safety
Net, we are required to meet out-of-pocket expenses as two single people....We
are also unable to register as a couple for the pharmaceutical benefits scheme
and once again pay twice the amount a heterosexual couple pays for
DISCRIMINATION IN FAMILY
A separating same-sex couple must go to state or territory
courts to resolve property division issues and the federal Family Court to
resolve child-related issues. This means that same-sex couples cannot access the
more flexible federal property settlement schemes and must pay two sets of court
costs if they have children.
Some separating same-sex parents will also
have difficulty pursuing child support because the laws do not recognise a
lesbian co-mother or gay co-father as a parent.
“If separation occurs, my daughter could be left to totally
supporting herself and her daughter...Ironically even fathers who don’t
pay maintenance are still recognised as parents.” (parent of a lesbian
“In a same-sex relationship where there’s children concerned,
if the biological mother does pass away, the child does not automatically get to
stay with the non-biological parent...If one member of the biological
mother’s family comes forth to take that child out of that house, that
child is gone. You would have to fight it in the Family Court – it is not
a right of ours for the child to stay where it has grown up.”
DISCRIMINATION IN SUPERANNUATION ENTITLEMENTS
Superannuation is one of the main ways for a couple to save for
retirement and is often a person’s largest asset apart from the family
home. Most people expect that their superannuation entitlements will be
inherited by their partner or children when they die. However, this is not
always the case for same-sex couples and families.
For example, a
same-sex partner cannot always access the following superannuation benefits and
superannuation tax concessions:
- superannuation contributions splitting
- superannuation spouse tax offset
- lump sum or reversionary direct death benefits
- death benefits anti-detriment payments
In particular, the
same-sex partner of a federal government employee cannot access direct death
benefits under a federal superannuation scheme, unless the employee joined the
public service after 1 July 2005.
saved in superannuation. The ability to do this by splitting superannuation
contributions would be of great benefit to our retirement savings. The
potential tax saving is over $20,000 at retirement. We are unable to take
advantage of this initiative as it is not available to same-sex
DISCRIMINATION IN AGED
When people enter an aged care facility they generally
have to pay certain daily fees and bonds to fund their care and residence. The
amount of those fees is calculated by applying assets and income tests.
A same-sex couple is treated differently to an opposite-sex couple under
these tests. In particular, the home of a same-sex couple is not exempted from
the assets test as it is for an opposite-sex couple.
As a result, a
person in a same-sex couple will generally pay more for residential aged care
than a person in an opposite-sex couple.
“I have recently started thinking about what will happen if or when
one of us requires some sort of assisted accommodation or nursing home care and
the prospect of that alienation in our elderly years because we will no longer
be recognised as a couple is distressing to say the
“[W]here a member of an opposite-sex couple is incapacitated and
requires nursing home care, the means test for an accommodation bond excludes
the family home. However, if one member of a same-sex couple requires
residential nursing care, then that person’s share of the family home is
treated as an asset...if either of us were ever incapacitated, we would face the
possibility of being forced to sell our home out from under the other
ACCESS TO VISAS
Same-sex couples are denied access to the full-range of visas available
to opposite-sex couples.
There is only one visa available to same-sex
couples who wish to migrate to Australia as a couple – the Temporary
Business (Long Stay) 457 visa.
There is also only one category of visa
available to the same-sex partner of an Australian citizen or permanent resident
– the Interdependency visa.
As a result, there is additional
expense and disruption to the lives of same-sex couples wanting to live together
“Because we are not a young couple...I had great difficulty in
getting a visa in my own right, and we had to rely on a series of tourist visas,
failed visa applications and appeals to stay together until he eventually gained
permanent residency and I could apply as his dependent partner... For more than
five years I was unable to work, and had to leave the country regularly, never
knowing if I would be allowed back. This not only imposed a great strain on our
relationship, but also a considerable financial
Get in contact
For more information
about this Inquiry please go to: www.humanrights.gov.au/samesex.
copies of the Same-Sex: Same Entitlements Report or for additional copies
of this community guide, call our Publications Officer on (02) 9284 9600 or
you’d like to share your thoughts, ideas or feedback on the issues raised
in this community guide or the full Same-Sex: Same Entitlements Report, a
feedback form is available on our website at: www.humanrights.gov.au/samesex.
For free advice on discrimination and your rights, or to make a
complaint about discrimination because of sexual orientation or other grounds,
call our Complaints Information Line on (02) 9284 9888, 1300 656
419 or TTY 1800 620 241. Information about making or responding to a complaint
is available at www.humanrights.gov.au.
You can also email us on firstname.lastname@example.org.