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Same-Sex: Discussion paper 2

 

National Inquiry into Discrimination against People in Same-Sex Relationships:

Financial and Work-Related Entitlements and Benefits

Discussion Paper II

September 2006

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Table of Contents

1 What is this discussion paper about?

2 Why are we publishing this research now?

3 How can you help the Inquiry?

4 What will the Inquiry do with your comments?

5 What are the Inquiry's next steps?

6 What are the 'problem definitions' in federal laws?

6.1 'Spouse' and 'de facto' in current federal law

6.2 Options for defining 'de facto' in federal law

6.3 'Child' in current federal law

6.4 Options for defining 'child' in federal law

6.4.1 Option 1

6.4.2 Option 2

6.4.3 Option 3

6.4.4 Option 4

6.4.5 Option 5

7 What are the problems in employment laws?

7.1 Workplace laws

7.2 Employment by federal agencies

7.3 Workers' compensation

7.4 Employment-related privileges and immunities

8 What are the problems in tax laws?

8.1 Dependant rebates

8.2 Rebates that include a dependant spouse rate

8.3 Superannuation contribution rebates and concessions

8.4 Medical expenses rebate

8.5 Transfer of property following relationship breakdown

8.6 Baby bonus

8.7 Child-care tax rebate

8.8 Capital gains tax

8.9 Fringe benefits tax

9 What are the problems in social security laws?

9.1 Disadvantages for same-sex couples in social security

9.1.1 Partner allowances

9.1.2 Bereavement allowance and bereavement payments

9.1.3 Widows' pensions and allowances

9.1.4 Youth allowance

9.1.5 Retirement allowance to farmers

9.1.6 Social security recipient in gaol

9.2 Advantages for same-sex couples in social security

9.2.1 Individual income and assets tests

9.2.2 Benefits using income and assets tests

9.2.3 Benefits paid at a partnered rate

9.3 Financial support for families

9.3.1 Family tax benefit

9.3.2 Child-care benefit

10 What are the problems in health laws?

10.1 Medicare

10.1.1 Medicare levy and surcharge

10.1.2 Medicare safety-nets

10.2 Pharmaceutical Benefits Scheme

11 What are the problems in family law?

11.1 The Family Court

11.2 Parental status

11.3 Child support

12 What are the problems in retirement?

12.1 General superannuation issues

12.1.1 Death benefits

12.1.2 Reversionary pensions

12.1.3 Payments made on behalf of a spouse

12.1.4 Information about a spouse's fund

12.2 Federal statutory superannuation and pension schemes

12.3 Retirement Savings Accounts

12.4 Aged Care

13 What are the problems in discrimination laws?

14 What are the problems in migration laws?

15 What are the problems in other federal legislation?

15.1 Insurance

15.2 Crimes

15.3 Investment, conflict of interest and disclosure

15.4 Aboriginal land and organisations

15.5 Marriage

16 Concluding remarks

Appendix I: Preliminary list of legislation that may require amendment to include same-sex families in Commonwealth law


1 What is this discussion

paper about?

This discussion paper briefly discusses federal laws

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

entitlements.

The paper discusses the following areas of federal

law:

  • Employment

    (workplace laws, workers compensation, federal employees)

  • Tax
  • Social

    security

  • Health

    (Medicare, Pharmaceutical Benefits Scheme)

  • Family

    law (property division, parental status, child support)

  • Retirement

    laws (superannuation, retirement savings, aged care)

  • Discrimination

    law

  • Migration
  • Insurance
  • Crimes
  • Investment,

    conflict of interest and disclosure

  • Aboriginal

    land and organisations

  • Marriage

Appendix

I to the paper is an alphabetical summary list of the federal legislation that

would need to be amended to remove the discrimination identified throughout the

paper.

This discussion paper is a summary of a larger research paper

('the main research paper'), which is published in full on the

Inquiry website at: http://www.humanrights.gov.au/samesex/index.html.

The discussion paper is structured in a similar way to the main

research paper so that readers can cross-reference with the main paper for more

detailed discussion and analysis.

Neither this discussion paper, nor

the main research paper, represent any final findings, conclusions or

recommendations of the Inquiry.

2 Why are we publishing

this research now?

The purpose of publishing this paper is to seek input

from community groups, government and individuals about the issues covered in

the main research paper and this summary.

One of the main goals of

the Same-Sex: Same Entitlements Inquiry is to conduct a comprehensive audit of all federal laws which discriminate

against same-sex couples in accessing financial and work-related benefits and

entitlements.

To assist in conducting this audit of federal laws,

the Inquiry commissioned independent research. The result is the main research

paper, called Areas of Federal Law that

Exclude Same-Sex Couples and their

Children.[1]

The Inquiry would now like to hear any comment about the

research in this summary and the main paper.

Some questions are set

out in the following section to assist those organisations, agencies and

individuals who are interested in providing comments to the Inquiry.

3 How

can you help the Inquiry?

The Inquiry would like your comments about the content

of this discussion paper and the main research paper.

In particular

we are interested in your responses to any or all of the following questions.

However, you should not feel limited by these questions; they are simply

intended to guide you.

(a) Can

you identify any discriminatory federal legislation, regulation or policy that

we have missed in our

research?

(b) Can

you clarify how any of the discriminatory provisions described in this paper

work in practice?

(c) Do

you have a personal experience which illustrates the impact of any of the laws

described in this

paper?

(d) Do

you have any comments about the suggested definition of 'de facto

relationship' in federal law (discussed in section 6.2 of this discussion

paper)?

(e) Do

you have any comments about the suggested options for recognising a

'child' in federal law (discussed in section 6.4 of this discussion

paper)?

(f) Do

you have any recommendations about how to address the discrimination described

in this paper?

The deadline for comments

is 3 November 2006.

4 What will the Inquiry do

with your comments?

Any comments that you send to us will be considered as

submissions to the Inquiry and may be published on the Inquiry website, unless

you specify otherwise.

Your comments will assist the Inquiry team to

write the final report and make final recommendations to

government.

Remember, the deadline for submission is 3 November 2006!

The Inquiry

strongly encourages you to send your comments by email to samesex@humanrights.gov.au.

However, you can also send comments in hard copy, floppy disk, audio

tape, video tape, CD or DVD, to:

Same-Sex Inquiry

Human Rights Unit

Human Rights and Equal Opportunity

Commission

GPO Box 5218

Sydney NSW 2001

If you have any questions, please email the Inquiry at samesex@humanrights.gov.au. Or

if you would like to speak to someone in person, please call (02) 9284 9600 or

1800 620 241 (TTY).

5 What

are the Inquiry's next steps?

The Inquiry will complete its public consultation

process on 16 November, with its final community forum in Katoomba, NSW. A

schedule of the public hearings and community forums can be found at: http://www.humanrights.gov.au/samesex/hearings.html.

From

November 2006 onwards, the Inquiry will start developing a final report and

recommendations on the basis of the information gathered from:

  • the

    written submissions

  • the

    public consultation process

  • this

    discussion paper

  • the

    main research paper

  • any

    other relevant information and research.

The

Inquiry aims to send a final report to the federal Attorney-General in early

2007 so that it can be tabled in Federal Parliament by mid 2007.

6 What are the

'problem definitions' in federal laws?

The primary source of discrimination against same-sex

couples in federal law is the way in which terms such as 'spouse',

'de facto' and 'child' are defined in legislation.

6.1 'Spouse'

and 'de facto' in current federal law

Virtually all federal legislation includes a heterosexual

'de facto' partner within the definition of 'spouse'.

The problem for same-sex couples arises because no federal legislation includes

same-sex couples within the concept of a 'de facto' couple.

There are a number of different definitions of 'de

facto' spouse in federal laws. Many laws specify that a de facto couple

must include two members of the 'opposite sex'. Other federal laws

use the words 'husband', 'wife' or 'spouse'

within the definition of de facto, and these terms mean that the couple must be

heterosexual.

One way to remove discrimination in federal law would

be to change the definitions used in that legislation so that they include,

rather than exclude, same-sex couples. This type of reform has already occurred

in all states and territories, other than South Australia.

Appendix

II in the main research paper compares the various definitions used in various

federal, state and territory legislation.

6.2 Options for defining

'de facto' in federal law

Appendix II in the main research paper proposes one possible

definition of 'de facto relationship' which could be used to remedy

the discrimination caused by restrictive definitions of 'spouse' and

'de facto' in federal law.

The proposed definition is a

simplified version of the definition used in the Australian Capital Territory

and is consistent with many of the definitions used in the other states and

territories. It focuses on the genuineness of the relationship rather than the

sex of the partners.

The list of factors used to determine the

genuineness of the relationship does not require that any one factor be present,

and allows a decision-maker to consider any additional relevant

factors.

A

new definition of 'de facto relationship'

1.

'De facto relationship' means the relationship between 2 people

living together as a couple on a genuine domestic basis.

2.

In determining whether two people are in a de facto relationship, all the

circumstances of the relationship must be taken into account, including any of

the following:

 

(a) the

length of their relationship

(b) how

long and under what circumstances they have lived together

(c) whether

there is a sexual relationship between them

(d) their

degree of financial dependence or interdependence, and any arrangements for

financial support, between or by them

(e) the

ownership, use and acquisition of their property, including any property that

they own individually

(f) their

degree of mutual commitment to a shared life

(g) whether

they mutually care for and support children

(h) the

performance of household duties

(i) the

reputation, and public aspects, of the relationship between

them

3.

No one factor, or any combination of factors, under (2) is necessary to

establish a de facto relationship.

4.

A de facto relationship may be between a couple of the same sex or different

sex.

In addition to the factors (a)-(i) above, the following factor

could be added to assist in proving a domestic

relationship:[2]

(j)

the existence of a statutory declaration signed by either or both of the couple

stating that they are, or were, in a de facto relationship

Alternatively,

if the Tasmanian model for a registration system were introduced, a subsection

5. could be added to the definition of 'de facto' along the

following

lines:[3]

5.

If a relationship is registered under section [of the relevant Act],

registration is proof of the relationship from that date.

If this were to occur, subsection 3. should also

include:

3.

...The fact that a relationship is not registered as provided for in (5) is not

relevant to a determination under (2)

6.3 'Child'

in current federal law

Around 20% of lesbians and up to 10% of gay men have children.

Where children were born into previous heterosexual relationships,

it is clear who the child's parents are and their relationships are

legally recognised.

However children are increasingly being born

into same-sex families. When this occurs, federal law provides no recognition of

the relationship between the child and the non-biological parent.

The definition of 'child' under federal law is varied

and uncertain. So is any path to reform definitions to include same-sex

families.

There are a number of reasons for the uncertainty around

this area:

  • most

    federal laws implicitly assume that a child is a biological child of its parents

    without any express provision or definition regarding the relationship between

    parent and child

  • most

    federal laws do not define 'parent' or 'child'

  • unlike

    most heterosexual families, in same-sex families there is always one parent who

    does not have a biological relationship with the

    child

  • states

    and territories have primary responsibility for determining parental status.

    This raises difficult questions about the relationship between state and federal

    provisions in the context of recognising parent-child relationships in same-sex

    families in federal

    law.[4]

Where there are definitions of

'child' in federal laws, they generally relate only to conditions of

eligibility for a benefit, such as a child's age, or whether they are

financially dependent on the adult.

The aim of any reform would be

to give the broadest and most accessible range of legal protections for children

being raised in same-sex families, while still having certainty as to which

relationships are covered in each statute.

6.4 Options for defining

'child' in federal law

Appendix III in the main research

paper suggests five options for defining 'child' within federal

legislation. Appendix III also sets out the advantages and disadvantages of the

various options, as well as giving examples of how the different options might

work in practice.

The five different options are set out below.

6.4.1 Option 1

Create a new federal definition of

'child' that includes as a parent the consenting female partner of a

woman who has a child born through assisted conception.

This could be done through inserting the definition

separately into each Act, or through reference to a principal Act containing the

new definition, for example the Family Law Act

1975 (Cth) or the Acts Interpretation

Act 1901 (Cth).

6.4.2 Option 2

Create a new federal definition of

'child' that reflects the state parenting presumptions for children

born through assisted reproductive technology (ART).

This could be done through inserting the definition

separately into each Act, or through reference to a principal Act containing the

new definition, for example the Family Law Act

1975 (Cth) or the Acts Interpretation

Act 1901 (Cth).

6.4.3 Option 3

Insert into some or all federal Acts

a 'functional family' definition of child. This could be done by

utilising the broad purposive definition of child currently used in a small

number of Acts. For example:

(a) 'child includes a child

living with a person as a member of their family' or

(b) 'a child to whom the

person acts in the place of a parent'.

6.4.4 Option 4

Insert into all federal Acts a

definition of child that includes a child 'for whom a person has sole or

shared parental responsibility' as defined by the Family Law Act 1975 (Cth).

6.4.5 Option 5

Option 1 and 4 could be pursued in

conjunction with each other.

7 What are the problems in

employment laws?

7.1 Workplace laws

Minimum workplace entitlements for Australian employees

include carers' leave, compassionate leave, parental leave and adoption

leave.[5]

Carers' leave and compassionate leave are both

available in relation to an employee's 'immediate family' or a

'member of their household'.

Since a same-sex partner is

not considered 'immediate family', he or she is only entitled to

carers' or compassionate leave if the couple are living together.

Heterosexual couples are not restricted in this way.

Parental leave

is only guaranteed to a male employee who is the spouse of a woman giving birth.

Female partners of the birth mother are excluded.

Adoption leave is

only available to an adoptive parent, and is not guaranteed to the non-adoptive

parent in a same-sex couple. In most states same-sex couples are not permitted

to jointly adopt children. Where one member of a couple adopted as an

individual, their partner would not be eligible for adoption leave.

7.2 Employment by federal

agencies

The employment conditions of many federal employees are

determined by collective or individual agreements rather than in legislation.

However some federal employment conditions are provided for in legislation.

Benefits that are available

to same-sex partners include:

  • Same-sex

    partners have identical travel entitlements to those provided to the spouses of

    holders of public office and principal executive

    officers.[6]

  • The

    Australian Defence Force recognises 'interdependent partners' as a

    category of recognised relationship in their instructions on pay and conditions.

    Benefits include on and off-base accommodation, relocation expenses and travel

    benefits, leave entitlements and education and training

    benefits.[7]

  • The

    travel entitlements of judicial officer holders include the partner of the

    office

    holder.[8]

  • A

    range of travel entitlements are provided to the spouse of a Member of

    Parliament. While a same-sex partner is not considered a spouse, many (but not

    all) travel entitlements are available to a 'designated person' or a

    Member's

    'nominee'.[9]

Benefits that are not available to same-sex partners:

  • A

    defence force member is eligible for a subsidised home loan if he or she

    purchases a house with a

    spouse.[10] This is not available to a same-sex couple who purchases a home as joint

    tenants.

  • If

    a service member dies a loan is available to their surviving

    spouse.[11] A surviving same-sex partner is excluded from this benefit.

  • An

    allowance payable to a former Governor-General passes to their spouse upon

    death.[12] This is not available to a same-sex partner.

  • Former

    and sitting members of Parliament are eligible for a set number of free domestic

    trips per year for themselves and their spouses. The spouse benefit is not

    available to same-sex

    partners.[13]

  • The

    cost of accommodation of a spouse is included in calculation of travel allowance

    paid to statutory office holders and judges of the High

    Court.[14] This is not available to same-sex partners.

7.3 Workers'

compensation

Same-sex partners are not considered spouses in federal

workers' compensation legislation.

A member of a same-sex

couple is not eligible for payment of compensation in the event of an injury

resulting in the death or incapacity of his or her

partner.[15]

However, where a same-sex partner provides care to an

incapacitated employee who is a member of their household, compensation may be

payable.

Same-sex partners are also excluded from compensation and

benefits payable to 'dependants' of special categories of employee,

including:

  • veterans

    of the defence forces who have rendered 'operational

    service'[16]

  • current

    and former members of the Defence Force who suffer a service injury, death or

    disease[17]

  • seafarers

    in the event of their

    death.[18]

7.4 Employment-related

privileges and immunities

Same-sex partners are not eligible for certain privileges and

immunities granted to foreign nationals engaged in particular occupations in

Australia.

Those privileges include the following:

  • Diplomatic

    privileges are extended to the spouse of the head of a foreign

    state.[19]

  • The

    privileges of a diplomatic agent are extended to the spouses of staff and

    representatives of international

    organisations.[20]

  • Defence

    force members of another country travelling in the course of duty, the crew

    members of an aircraft or ship, and their spouse or child are exempt from paying

    departure

    tax.[21]

8 What are the problems in

tax laws?

8.1 Dependant rebates

Same-sex couples cannot access a number of rebates that are

paid for the dependants of an income earner, including:

  • spouse

    rebate

  • dependent

    child rebate

  • child

    housekeeper rebate

  • invalid

    relative

    rebate

  • parental

    or spousal parent

    rebate.[22]

In

addition, non-biological or non-adoptive parents do not qualify for the rebates

that concern children.

8.2 Rebates that include a

dependant spouse rate

Same-sex couples are excluded from a number of rebates that

are paid at a higher rate if the taxpayer has a dependant spouse.

Those rebates include:

  • zone

    rebate for people living in rural and remote areas

  • rebate

    for members of the defence force serving

    overseas

  • rebate

    for civilians serving with a United Nations

    force.[23]

There

is also a senior Australians tax offset (or low-income aged person's

rebate) for a taxpayer with a

spouse.[24] This is calculated on the effective combined income of the couple. Same-sex

couples are excluded from the higher level of these rebates.

8.3 Superannuation

contribution rebates and concessions

A tax payer who contributes to a spouse's superannuation

fund when the spouse earns less than a set amount is entitled to a

rebate.[25] These payments are also exempt from superannuation contributions

tax.[26]

Same-sex couples are excluded from these

benefits.

8.4 Medical

expenses rebate

Once a person has paid over a set amount of out-of-pocket

medical costs, they may claim a 20% rebate for medical expenses over that

sum.[27] This includes medical costs paid on behalf of a 'dependant',

including the spouse or child of the

taxpayer.[28]

Same-sex couples must meet the spending threshold

individually rather than collectively. In other words, same-sex couples have to

spend more than a heterosexual couple to access the rebate.

8.5 Transfer of property

following relationship breakdown

The transfer of property to spouses or children following

family breakdown attracts favourable tax treatment. This concession is not

available to same-sex

families.[29]

8.6 Baby bonus

The first-child rebate, known as the 'baby bonus'

was available for a child born or adopted in the years 2001-2004 as a

non-income-tested rebate to eligible

parents.[30] Non-biological same-sex parents may be excluded if there was another eligible

parent or they had not obtained a parenting order.

The first-child rebate can be transferred to a spouse

who does not have the primary entitlement. The ability to transfer the rebate is

beneficial if one partner does not have a sufficient tax liability in the tax

year to be able to claim the value of the rebate while the other partner does.

Same-sex couples cannot transfer the rebate.

8.7 Child-care tax

rebate

The child-care rebate covers 30% of out-of-pocket child-care

expenses for approved child-care up to a maximum of $4000 per

year.[31]

The rebate applies to payments made by an individual or

his or her 'partner', but excludes same-sex partners. Consequently,

only child-care payments made by the biological or adoptive parent attract the

rebate.

Further, unlike heterosexual de facto partners, same-sex

partners cannot transfer any unused value of the offset to their partner in

order to minimise tax in a specific tax year.

8.8 Capital gains tax

Same-sex couples are excluded from a capital gains tax

exemption for an inherited dwelling that was the main residence of the

'spouse' of the

deceased.[32] Thus same-sex couples have a higher liability for capital gains tax on the death

of a partner.

On the other hand, same-sex couples may have a tax

advantage if they own and live in two separate properties. This is because

capital gains tax is not payable on the capital gain of a dwelling that is the

taxpayer's main

residence.[33] If a person lives in a separate main dwelling from their spouse, they must

either choose one of the residences or nominate both as their main residences.

If both are nominated, the capital gains tax exemption is split. Same-sex

couples are excluded from this provision and can therefore legitimately claim an

exemption for each residence.

8.9 Fringe benefits

tax

Fringe benefits tax is assessed on the basis of benefits that

are granted to a person, or in some cases, their associates (including their

spouse, relatives, or children).

The Australian Tax Office has

deemed same-sex partners to be associates thus exposing them to fringe benefits

tax.[34]

However, same-sex partners and the non-adoptive or

non-biological child of an employee are not covered by a range of fringe

benefits tax exemptions available to heterosexual families, including:

  • provision

    of accommodation, residential fuel, and meals to a residential employee during a

    period of

    accommodation[35]

  • benefits

    provided by a religious employer to an employee who is a religious practitioner,

    or to their spouse or

    child[36]

  • provision

    of transport benefits if they are used to attend the funeral of a 'close

    relative' of the

    employee.[37]

9 What are the problems in

social security laws?

Social security laws do not generally recognise same-sex

couples as a genuine

relationship.[38] This is because a same-sex partner does not fit the definition of a

'partner' or a 'member of a couple' in the legislation.

Partner is a commonly used term in the legislation and is defined as meaning a

'member of a

couple'.[39]

This means that the members of same-sex couples are

denied certain benefits available to people in a recognised relationship.

However, it also means that same-sex couples may be entitled to claim some

benefits at the higher 'single' rate rather than the lower

'couple' rate.

9.1 Disadvantages for

same-sex couples in social security

Members of a same-sex couple are not recognised as

'partners' for the six different types of benefits described

below.

9.1.1 Partner allowances

Various kinds of partner allowance may be paid in certain

circumstances to heterosexual

couples.[40] For example, if a person does not have recent workforce experience and their

partner is on a disability pension, sickness allowance or Austudy they may be

entitled to a partner

allowance.[41]

9.1.2 Bereavement allowance and bereavement

payments

A bereavement allowance is payable to a person without

dependant children for a set number of weeks immediately after the death of a

'partner'.[42] Other bereavement payments unavailable to same-sex partners include:

  • payments

    to people in receipt of social security payments or

    Austudy[43]

  • one-off

    payments to partners and those eligible for wives' and carers'

    pensions[44]

  • payments

    to a carer of the person who dies, or to the carer or parent of a young child

    who

    dies.[45]

9.1.3 Widows' pensions and allowances

Specific pensions are payable only to a divorced, separated or

widowed woman in certain

circumstances.[46] A woman whose partner has died can more easily qualify for the age pension than

anyone

else.[47]

Male partners in any relationship and female partners in

same-sex relationships are not eligible for these payments.

9.1.4 Youth allowance

Eligibility for youth allowance is determined by a parental

income test unless the person is classified as 'independent' of

their parents. And a person will be 'independent' if he or she is in

a 'Youth Allowance

Couple'.[48] A young same-sex couple cannot qualify as a 'Youth Allowance Couple'

and will therefore be unable to establish their independence for the purpose of

this

allowance.[49]

Further, a person in a same-sex couple may be ineligible

for the youth allowance if they have refused a job because of their

partner's circumstances (for example medical condition, care

responsibilities, pregnancy etc). This is because the legislation does not

consider the circumstances of a same-sex partner in the same way it takes into

account a heterosexual

partner.[50]

9.1.5 Retirement allowance to farmers

Retirement assistance for farmers exempts the value of farming

interests transferred by (a) a qualifying farmer and (b) a current or former

opposite-sex partner, for the purpose of determining eligibility for social

security.[51] This benefit is not available to same-sex partners.

9.1.6 Social security recipient in gaol

If a social security pension is not payable because the

recipient is in gaol or psychiatric confinement on a criminal charge, the

payment may be redirected to a dependant child or partner of the

person.[52] This benefit is not available to same-sex partners.

9.2 Advantages for same-sex

couples in social security

9.2.1 Individual income and assets tests

The income or assets of a partner are taken into account in

determining eligibility for social

security.[53]

If a couple's combined assists or income exceed

the threshold, a person may not get benefits that they would be eligible to

receive as an individual. Alternately, they may receive a benefit at a lower

rate when they are a member of a couple.

Since social security law

does not recognise the existence of a same-sex couple, Centrelink will calculate

assets and income on an individual basis rather than a combined basis. This

means that each member of a same-sex couple will find it easier to qualify for

certain assets and income tested benefits.

9.2.2 Benefits using income and assets tests

The combined value of a partner's assets is generally

relevant in assessing eligibility for benefits such as:

  • Newstart

    allowance[54]

  • parenting

    payment[55]

  • sickness

    allowance[56]

  • Health

    Care Concession

    Card.[57]

For

some benefits, when one member of a couple is on social security or another form

of income support, the asset tests for the second member of the couple only

imputes 50% of the total value, rather than 100%. This may be beneficial or

detrimental to a couple, depending on how their assets are divided. This type of

calculation applies to benefits such as:

  • Newstart

    allowance[58]

  • sickness

    allowance[59]

  • age

    pension[60]

  • parenting

    payment, bereavement allowance and Widow B

    pension[61]

  • payments

    based on severe financial

    hardship.[62]

9.2.3 Benefits paid at a partnered rate

Many social security benefits are paid at a 'partnered

rate' to people who are members of a couple. This is less than the rate

that would be paid an individual who is not a member of a couple.

The reduced payment is based on the assumption that a cohabiting

couple pools expenses and lives more cheaply than two

individuals.

Benefits that are paid at a partnered rate to members of

a couple include:

  • parenting

    payment[63]

  • Austudy[64]
  • youth

    allowance[65]

  • age

    and disability support

    pensions[66]

9.3 Financial support for

families

9.3.1 Family tax benefit

The family tax benefit (FTB) is not linked to the tax system,

but is paid as a direct form of support to families with children, either as an

annual or a fortnightly sum.

FTB Part A is a broadly based

family-support payment available to both low-income and medium-income

families.[67] FTB Part A is income-tested on the income of both 'members of a

couple'.

The exclusion of same-sex couples from the definition of

a couple creates a financial benefit for same-sex couples under FTB Part A. This

is because a same-sex partner's income is not counted, so the couple is

more likely to receive a higher benefit and less likely to reach upper income

limit.

FTB Part B gives extra assistance to sole-parent families and

families where one member of the couple is in paid employment while the other is

primarily engaged in the care of

children.[68]

For sole parents there is no income test for this

payment. For couples, the payment is income tested on the income of the

individual earning the lesser income within the couple.

The

exclusion of same-sex couples from the definition of a couple means that the

biological or adoptive parent is treated as a sole parent and is entitled to the

maximum FTB Part B benefit with no income test. This is only beneficial if the

lower-earning member of the same-sex couple is earning over the lower income

limit amount.

9.3.2 Child-care benefit

Approved and registered child-care attracts a child-care

benefit. This benefit may be paid directly to the child-care centre or

reimbursed to the individual as a lump sum at the end of the year.

The benefit is paid on a per-child basis and is calculated on a

sliding scale based on family income. Even high-income families are entitled to

the minimum rate of the benefit as there is no income cut-off point.

The government subsidises the child-care fees paid by an individual

or their

'partner'.[69] Child-care fees paid by the non-biological or non-adoptive parent in a same-sex

family may not be eligible for the benefit as that person is excluded from the

definition of 'partner' under the Act.

10 What are the problems in

health laws?

10.1 Medicare

10.1.1 Medicare levy and surcharge

The Medicare levy is imposed upon personal incomes to fund the

Medicare scheme.

The general Medicare levy is 1.5% of an individual's

taxable income. However this rate is reduced for a member of a couple who is

entitled to a rebate for a dependant or

dependants.[70] As same-sex couples are excluded from the dependant rebates, they are also

excluded from any reduction of the general Medicare levy.

The Medicare surcharge is an additional 1% charged

on income above a specified amount if the individual does not have private

health insurance for the tax

year.[71] There is a family surcharge threshold, which is double that of the individual

threshold.[72] This threshold is composed of family income which is defined as a person's

taxable income, plus the taxable income of a

spouse.[73] Same-sex couples are assessed under the individual rather than the family

threshold. This is a disadvantage to a same-sex couple if one partner is over

and one partner is under the individual threshold, but they would jointly be

under the family threshold.

10.1.2 Medicare safety-nets

Medicare sets schedule fees for different medical services,

but doctors and hospitals are able to charge more than these fees. There are two

'gaps' in Medicare:

(a) The

gap between the schedule fee and the sometimes lower amount of the fee that

Medicare refunds.

Medicare usually pays 100% of the

schedule fee for GP services but only 85% of the schedule fee for other medical

services. Once an individual or family spends over a certain amount on this gap,

Medicare refunds the entire schedule fee. In 2006 the threshold for this

safety-net was $345.50.

(b) The

gap between the schedule fee and the higher actual out-of-pocket cost of the

service.

Once an individual or family spend

over a certain amount on this gap, Medicare refunds 80% of the difference

between the actual cost of the medical service and the schedule fee. In 2006 the

threshold for this safety-net was

$1000.[74]

Same-sex couples cannot pool expenses to reach the

family threshold for the safety net or the extended safety-net.

10.2 Pharmaceutical

Benefits Scheme

Once an individual or a family spend more than a certain

amount per year on certain prescription medicines, they are entitled to a PBS

concession entitlement

card.[75] Same-sex couples cannot pool expenses to reach the family threshold for the PBS

safety-net.

In 2006, the threshold amount for prescription expenses

is $960.10 after which the purchase of further prescription medicine is only

$4.70 per prescription.

For holders of Commonwealth concession cards

the threshold amount for prescription expenses is $253.80 after which the cost

per prescription is zero.

11 What are the problems in

family law?

11.1 The Family Court

Married couples can use the federal Family Court for

both property and child-related matters when a relationship breaks

down.[76] De facto and same-sex couples can use the Family Court for child related matters

only.

Heterosexual de facto couples may soon be able to use

the Family Court for property matters following an agreement by state and

territory governments to refer these powers to the Commonwealth. However, the

Commonwealth government has indicated that it will refuse to accept the referral

of power regarding same sex couples.

Same-sex couples will be

disadvantaged in a number of ways if they are excluded from the Family

Court's property jurisdiction. This is because the federal property

division regime:

  • covers

    a larger pool of the couple's shared assets, including superannuation

    assets

  • can

    divide such assets with a far greater degree of flexibility

  • takes

    into account a wider range of factors and circumstances of the parties during

    and after the relationship in making any

    adjustments.

11.2 Parental status

The parental status of children born through assisted

reproductive technology (ART) is largely determined by state and territory law.

However, parental status under state or territory law may not match parental

status under federal law.

A male partner or husband of a woman who

conceives through ART is a 'parent' for the purposes of the Family Law Act 1975 (Cth)

(FLA).[77] But a female partner does not qualify, even if she has been granted full

parental rights under state or territory law.

Recognition as a 'parent' under the FLA

provides additional legal rights to parents, including:

  • shared

    and equal parenting responsibility is automatically granted to both parents, and

    is presumed to continue after

    separation.[78]

  • if

    parental responsibility is shared, the Court must consider the child spending

    equal time or substantial and significant time with each

    parent.[79]

11.3 Child support

Biological and adoptive parents can pursue child support

from their partner after

separation.[80] This is not always the case for same-sex couples, where one parent is

non-biological or non-adoptive.

If a same-sex couple separates and the child remains

living with the biological parent, that parent cannot pursue child support from

the non-biological or the non-adoptive parent.

On the other hand, if

the child of a same-sex couple remains in the care of the non-biological or

non-adoptive parent, then that parent can pursue the legally recognised parent

for support of the child if:

  • the

    child was in their care with the consent of the legally recognised parent, or

  • the

    carer had an order from the Family Court granting them sole or shared parental

    responsibility, or

  • it

    was unreasonable in the view of the Registrar that the child be in the care of

    the legally recognised parent.

12 What are the problems in

retirement?

12.1 General superannuation

issues

12.1.1 Death benefits

In most superannuation funds a significant portion of a

deceased member's entitlements either pass directly to a dependant or to

the beneficiary of the deceased's estate.

Death benefits paid

directly to a dependant are exempt from income tax. In contrast, death benefits

paid through an estate attract tax of 15% for the superannuation fund and 15%

for the recipient (an overall rate of 30%).

A married or

heterosexual de facto spouse is presumed to be a dependant while a same-sex

partner is not. However, a same-sex partner may qualify as a dependant in

private superannuation funds if:

  • there

    is evidence of their regular and ongoing financial dependence on the

    deceased[81]

  • they

    qualify as having an 'interdependency

    relationship'.[82]

The

criteria for establishing an interdependency relationship largely mirror the

criteria used to assess the existence of a de facto relationship now in place in

most state and territory

laws.[83]

However, it is important to note that while the category

of 'interdependency relationship' allows a superannuation trustee to

treat a same sex partner as a 'dependant',

it does not require them to do so.

Same-sex couples may therefore still be at a disadvantage. Further the

'interdependency' category does not apply to most Commonwealth

government superannuation schemes.

12.1.2 Reversionary pensions

Some superannuation funds provide for payment of a

reversionary pension rather than a lump sum death benefit. The reversionary

pension is generally a portion of the pension that would be paid, or was being

paid to the deceased.

Most superannuation funds will only pay a

reversionary pension to a married or heterosexual de facto

spouse.[84]

12.1.3 Payments made on behalf of a spouse

A person may split either their personal contributions or

their employer's contributions with a

spouse.[85]

This currently provides tax benefits as a couple may

spread the value of their superannuation to take advantage of two Eligible

Termination Payments and Reasonable Benefit Limits, which set a certain amount

of taxation that may be taken before a higher rate of tax is payable on the

benefit. This benefit is not available to same-sex partners.

From 1

July 2007 this provision will only benefit those who retire before the age of

60.

12.1.4 Information about a spouse's fund

Since 2002 the federal Family Court can split superannuation

funds between separated married spouses in a property

settlement.[86] This means that a spouse can apply directly to his or her partner's

superannuation fund to discover the value of his or her superannuation assets.

This discovery is not available to separated same-sex

partners, and may therefore create disadvantages in property settlement

negotiations.

12.2 Federal statutory

superannuation and pension schemes

The superannuation schemes for federal government employees

and statutory office holders are governed by a range of specific federal

statutes, many with common benefits and definitions.

The general

provisions on superannuation discussed above are applicable to federal statutory

schemes. However, the changes to death benefits discussed in section 12.1.1,

only cover private sector schemes and do not apply to most federal statutory

schemes.

In each of the following federal superannuation schemes, a

same-sex partner will not be eligible

to receive direct death benefits.

  • Commonwealth

    Superannuation Scheme

    (CSS)[87]

  • Public

    Sector Superannuation Scheme

    (PSS)[88]

  • Defence

    Force Retirement and Death Benefits

    Scheme[89]

  • Military

    Superannuation and Benefits

    Scheme[90]

  • Parliamentary

    Contributory Superannuation

    Scheme[91]

  • Judges'

    Pension

    Scheme[92]

12.3 Retirement Savings

Accounts

A retirement savings account is a special account offered by

banks, building societies, credit unions, life insurance companies and financial

institutions. It is used for retirement savings and is similar to a

superannuation fund.

Retirement savings account benefits are payable

to dependants or to the personal legal representative of the account holder.

Same-sex partners are not an eligible dependant.

12.4 Aged Care

There are a range of government subsidies to cover the cost of

residential aged

care.[93]

The income, assets and housing needs of a partner, close

relative or dependent child may be relevant to the determination of an aged care

residential subsidy and to the calculation of an accommodation

bond.

An assets test applies, which can affect the amount of the

accommodation bond and other charges for a person entering care. For a

recognised couple, assets are valued at 50% of the couple's total asset

pool. Currently, an accommodation bond charge applies if a person has assets

that exceed $31,500.

However, the value of a person's home is

disregarded for the assets test if that home is occupied by the partner or

dependent child of the person, or a close relative in certain circumstances. A

carer is included in the exemption if they occupied the home for the past two

years and were eligible to receive an income support

payment.[94]

If a person in a heterosexual couple were to enter

residential care and their partner remained in their home, the value of the home

would be excluded from the assets test.

For a same-sex couple the

full value of the home would be taken into account if the partner in care was

the sole title-holder, or half the value would be taken into account if the

partner in care held title as joint tenant with their partner. The only

exception would be if a same-sex partner was held to be a carer, had lived with

their partner in the home for the previous two years and was on a social

security benefit.

13 What are the problems in

discrimination laws?

Federal law prohibits sexual harassment and

discrimination against people on the ground of sex, marital status, pregnancy or

potential pregnancy and family responsibility in certain areas. A same-sex

couple arguably receives no protection under the grounds of marital status or

family

responsibility.[95]

14 What are the problems in

migration laws?

Relationship recognition is important in migration law

because a relationship with an Australian resident or citizen, or with the

primary holder of a visa, may entitle a person to a

visa.[96]

Same-sex partners are recognised in limited

circumstances through the category of 'interdependent

relationship'.[97] This definition refers to a genuine relationship between two unrelated adults

who live together. The parties must be at least 18 years of age and have lived

together for 12 months before applying.

The interdependent relationship category operates in two

areas of migration law only:

  • Sponsored

    migration under the family scheme, which allows a Australian citizen or

    permanent resident to sponsor family members to migrate to Australia. These

    regulations allow for a temporary visa through a waiting period of approximately

    two years and then a permanent visa if the relationship is continuing.

  • Sponsored

    migration under a temporary skilled migrant scheme, which permits the

    independent partner of a person as well as the dependent child of such partner

    to accompany the primary visa

    holder[98].

    Interdependent relationships have been included in the temporary and not the

    permanent classes of skilled migrant visa. Unlike a heterosexual partner, a

    same-sex partner cannot join their partner's application for a permanent

    skilled migrant visa.

Same-sex couples are not

recognised, except in these circumstances.

Further, interdependent

partners are excluded from a wide range of visa categories which are otherwise

available to spouses, including:

  • all

    skilled migrant and business visa categories

  • student

    visas

  • humanitarian

    visas.

15 What are the problems in

other federal legislation?

15.1 Insurance

A court cannot order that a person's interest under his

or her spouse's life insurance policy be used to discharge that

person's

debt.[99] Same-sex partners are not protected in this way.

Same-sex partners may also be excluded from enforcing

liability for the death of a partner who dies as a passenger aircraft

accident.[100]

15.2 Crimes

The Criminal Code Act

1995 (Cth) is the only piece of federal legislation that explicitly

recognises same-sex partners. They are included within the category of

'close family member' and are thereby protected from the strict

liability offence of association with a

terrorist.[101]

However same-sex partners cannot take advantage of two

protections given to heterosexual partners in federal criminal law:

  • a

    defendant's spouse, de facto spouse, parent or child is exempt from giving

    evidence if it is likely to cause them or their relationship

    harm[102]

  • exceptions

    to the confiscation of the proceeds of federal crimes are provided to ensure

    that the needs of dependants are taken into

    account.[103]

15.3 Investment,

conflict of interest and disclosure

A number of federal laws regulate investment and the ownership

of shares in companies or certain kinds of financial entities. Many of these

provisions set limits on ownership, or require disclosure of interests.

In order to prevent manipulation of such rules through sham

transactions involving others closely connected to the person, many rules also

cover the relatives and associates of the person. Same-sex couples are not

subject to these rules.

These types of provisions are found in the

following pieces of legislation:

  • Corporations

    Act 2001 (Cth)

  • Bankruptcy

    Act 1966 (Cth)

  • Foreign

    Acquisition and Takeovers Act 1975 (Cth)

  • Financial

    Sector (Shareholdings) Act 1998 (Cth)

  • Insurance

    Acquisitions and Takeovers Act 1991 (Cth)

  • Education

    Services for Overseas Students Act 2000 (Cth)

  • Broadcasting

    Services Act 1992 (Cth)

  • Pooled

    Development Funds Act 1992 (Cth)

  • Australian

    Meat and Live-Stock Industry Act 1997 (Cth)

15.4 Aboriginal land and

organisations

Land in the Jervis Bay Territory has been granted to the Wreck

Bay Aboriginal Community. Where a registered member has the benefit of a lease

of Aboriginal land for use for domestic purposes, that benefit can be

transmitted to a 'relative' of the

member.[104] This does not include same-sex partners.

Further, only a person who is Aboriginal or the spouse

of an Aboriginal person is eligible to be a member of an Incorporated Aboriginal

Association.[105] This does not include same-sex partners.

15.5 Marriage

In 2004 the Marriage

Act 1961 (Cth) was amended to define marriage as 'the union of a

man and a woman to the exclusion of all others, voluntarily entered into for

life'.[106] The amendments also prevent Australian courts from validating same-sex marriages

contracted overseas.

16 Concluding

remarks

This Discussion Paper summarises the content of a larger

research paper, which can be found at: http://www.humanrights.gov.au/samesex/index.html

The

material in this paper does not represent any final conclusions or

recommendations. Rather the paper is intended to elicit further comment from

community organisations, individuals and government.

Comments should

be provided to the Inquiry by 3 November

2006.

See sections 3 and 4 of this Discussion Paper for

guidelines on what to write and how to send a submission.

 


Appendix I: Preliminary

list of legislation that may require amendment to include same-sex families in

Commonwealth law

Aboriginal

Councils and Associations Act 1976 (Cth)

Insert

definition of child

s 3 replace

definition of spouse

Aboriginal

Land Grant (Jervis Bay Territory) Act 1986 (Cth)

s 37(1) replace

definition of relative, spouse, child

Age

Discrimination Act 2004 (Cth)

Insert

definition of child

s 29(4) replace

definition of near relative

Aged

Care Act 1997 (Cth)

s 44.11 replace

definition of close relation, member of a couple, partner, dependent

child

Australian

Citizenship Act 1948 (Cth)

Insert

definition of spouse or de facto spouse

Australian

Meat and Live-Stock Industry Act

1997 (Cth)

Insert

definition of de facto spouse

Bankruptcy

Act 1966 (Cth)

s 5(1) replace

definition of child, de facto spouse, close relative, relative

s 139K replace

definition of dependant

Broadcasting

Services Act 1992 (Cth)

Insert

definition of de facto spouse

s

5 replace definition of child

sch

5 replace definition of child

Child

Support (Assessment) Act 1989 (Cth)

s 5 replace

definition of parent, member of a couple

s 7B(1) define

legal guardian

Civil

Aviation (Carriers' Liability) Act 1959 (Cth)

s 12(5),

s 35(5) replace definition of members of the passenger's family,

insert definition of child

Commonwealth

Electoral Act 1918 (Cth)

s 4(1) replace

definition of spouse, child

Corporations

Act 2001 (Cth)

Insert

definition of child

s 9 replace

definition of de facto spouse

Defence

Act 1903 (Cth)

Insert

definition of spouse or de facto partner

Defence

Force Retirement and Death Benefits Act 1973 (Cth)

s 6A replace

definition of marital relationship, spouse

s 3 replace

definition of child

Defence

Force (Home Loans Assistance) Act 1990 (Cth)

s 3 replace

definition of spouse, child

Defence

Housing Authority Act 1987 (Cth)

s 12(1A) replace

definition of spouse

Disability

Discrimination Act 1992 (Cth)

Insert

definition of spouse or de facto partner

s

4(1) replace definition of relative

Education

Services for Overseas Students Act 2000 (Cth)

Insert

definition of de facto spouse, child

Evidence

Act 1995 (Cth)

sch 1 sec 3 pt 1 replace

definition of de facto spouse

sch 1

pt 2 cl 10(1) replace definition of child

s

73(1)(b) replace 'a man and a woman' with 'a couple'

Family

Law Act 1975 (Cth)

s

4 replace definition of child

s 90MD replace

definition of spouse

s 60H(1) replace

'woman was married to a man'

s

60H(3) replace with provision clarifying that sperm or egg donor is not a parent

under the FLA

s

60H(4) replace provision with new definition of de facto

relationship

Federal

Magistrates Act 1999 (Cth)

See

Federal Magistrates Amendment (Disability and Death Benefits) Bill

2006:

pt 2 div 2 cl 9E replace

definition of eligible spouse, marital relationship

pt 2 div 2 cl

9F replace definition of eligible child

Financial

Sector (Shareholdings) Act 1998 (Cth)

sch 1 s 2 replace

definition of relative

Financial

Transactions Reports Act 1988 (Cth)

Insert

definition of spouse and de facto spouse

Foreign

Acquisition and Takeovers Act 1975 (Cth)

Insert

definition of spouse

Foreign

Acquisition and Takeovers Regulations 1989 (Cth)

reg 2 replace

definition of spouse

Foreign

States Immunities Act 1985 (Cth)

Insert

definition of spouse

Fringe

Benefits Tax Assessment Act 1986 (Cth)

s 136(1) replace

definition of spouse, child

Governor-General

Act 1974 (Cth)

s 2B replace

definition of marital relationship

Health

Insurance Act 1973 (Cth)

s

10AA replace definition of members of a person's family, dependent

child

Higher

Education Funding Act 1988 (Cth)

Insert

definition of spouse

Higher

Education Support Act 2003 (Cth)

Insert

definition of spouse

Income

Tax Assessment Act 1936 (Cth)

s

6(1) replace definition of spouse, child, relative

s 27A(1) replace

definition of dependant

s 251R(3) replace

definition of dependant

s 159J replace

definition of dependant

s 159TC replace

definition of spouse

s 102AGA(2)(a) replace

definition of family breakdown

s

102AGA replace term natural parent

Income

Tax Assessment Act 1997 (Cth)

s 995.1

definitions of spouse and child will be automatically changed by virtue of

amendments to the Income

Tax Assessment Act 1936 (Cth)

s

61.490 definition of partner will be automatically changed by virtue of

amendments to A New

Tax System (Family Assistance) Act

1999 (Cth)

s

995.1 replace definition of relative

s

126.5 replace 'de facto marriage' with 'de facto

relationship'

s

126.15 replace 'de facto marriage' with 'de facto

relationship'

s

52.105 delete gendered references

Insurance

Acquisitions and Takeovers

Act 1991

(Cth)

Insert

definition of spouse

s

4 replace definition of relative

International

Organisations (Privileges and Immunities) Act 1963 (Cth)

Insert

definition of spouse

Judges'

Pensions Act 1968 (Cth)

s 4AC replace

definition of spouse

s 4AB replace

definition of marital relationship

s 4 replace

definition of child

Judicial

and Statutory Officers (Remuneration and Allowances) Act 1984 (Cth)

Insert

definition of spouse

Life

Insurance Act 1995 (Cth)

Insert

definition of child

sch 1 s 8 replace

definition of spouse

Marriage

Act 1961 (Cth)

s

5 replace definition of marriage

s

46 replace 'man and a woman'

s

88EA delete the provision

Medicare

Levy Act 1986 (Cth)

Entitlements

will be automatically changed by virtue of amendments to the Income

Tax Assessment Act

1936 (Cth).

ss

8, 8B, 8C, 8D, 8G replace 'married person' with 'member of a

couple'

Members

of Parliament (Life Gold Pass) Act 2002 (Cth)

s 4 replace

definition of spouse

s

4 replace 'widow' and 'widower'

Migration

Act 1958 (Cth)

Insert

definition of spouse, child, parent

s

238 delete definition of interdependency relationship

Migration

Regulations 1994

reg

1.03 replace definition of dependent child

reg

1.15A replace definition of spouse

reg

1.09A delete definition of interdependent relationship

Military

Rehabilitation and Compensation Act 2004 (Cth)

Insert

definition of child

s 5 replace

definition of partner, eligible young person

Military

Superannuation and Benefits Act 1991 (Cth)

sch 1 r

7(4) replace definition of spouse

sch 1 pt 5 r 9(c) replace

definition of spouse

sch 1 pt 5 r 12 delete

this provision

sch 1 r 2 pt 1 replace

definition of child

National

Health Act 1953 (Cth)

Insert

definition of child

s 4 replace

definition of de facto spouse

s

84 replace definition of child

A New

Tax System (Family Assistance) Act 1999 (Cth)

Insert

definition of child

s 3

definition of member of a couple and partner should be automatically changed by

virtue of amendments to the Social

Security Act 1991 (Cth).

A New

Tax System (Goods and Services Tax) Act 1999 (Cth)

Insert

definition of spouse

Parliamentary

Contributory Superannuation Act 1948 (Cth)

s 4B replace

definition of marital relationship

s 19AA(5) replace

definition of child

Parliamentary

Entitlements Act 1990 (Cth)

s 3 replace

definition of spouse, dependent child

Passenger

Movement Charge Collection Act 1978 (Cth)

s 3 replace

definition of spouse, child

Petroleum

Retail Marketing Franchise Act

1980 (Cth)

Insert

definition of spouse

s

3 replace

definition of child

Pooled

Development Funds Act 1992 (Cth)

Insert

definition of child

s 4(1) replace

definition of de facto spouse

Privacy

Act 1988 (Cth)

Insert

definition of child

Insert

definition of de facto spouse

Proceeds

of Crime Act 2002 (Cth)

Insert

definition of de facto partner

Public

Service Act 1999 (Cth)

Insert

definition of spouse

Remuneration

Tribunal Act

1973 (Cth)

Insert

definition of spouse or de facto partner

Retirement

Savings Accounts Act 1997 (Cth)

s 20(2) replace

definition of spouse

s 20(3) replace

definition of child

s 20A delete

interdependency relationship

Safety,

Rehabilitation and Compensation Act 1988 (Cth)

Insert

definition of child

s 4(1) replace

definition of spouse, dependant

Seafarers

Rehabilitation and Compensation Act 1992 (Cth)

s 3 replace

definition of spouse, prescribed child

Sex

Discrimination Act 1984 (Cth)

s 4(1) replace

definition of de facto spouse, marital status, family responsibilities,

child

Social

Security Act 1991 (Cth)

Insert

definition of child

s 4(2) replace

definition of member of a couple

s

4(3) replace criteria for forming opinion about relationship

s 5(1) replace

definition of parent

ss

408-408GI replace provisions with gender neutral terms

s 1067C replace

definition of Youth Allowance couple

Superannuation

Act 1976 (Cth)

s 8B(2) replace

definition of surviving spouse

s 8A(1) replace

definition of marital relationship

s 3(1) replace

definition of child

Superannuation

Act 1990 (Cth)

r 1.1.1 replace

definition of spouse

r 1.1.1 replace

definition of child

Superannuation

Act 2005 (Cth)

Section

10 of the Act provides for a trust deed to establish the PSSap fund, and all

relevant definitions and entitlements are contained within the Deed.

In

the PSSap Trust Deed:

Replace

definition of spouse

Superannuation

Industry (Supervision) Act 1993 (Cth)

s 10 replace

definition of spouse, child

s 10A delete

definition of interdependency relationship

Veterans'

Entitlements Act 1986 (Cth)

s

5E replace terms 'widow' and 'widower'

s 5E(2) replace

definition of member of a couple

s 5F(1) replace

definition of child

s

118NA replace definition of partner

Workplace

Relations Act 1996 (Cth)

s 240 replace

definition of de facto spouse

s 263 replace

definition of de facto spouse

s 240 replace

definition of child


[1] The main research paper was completed for the Inquiry by Associate Professor

Jenni Millbank.

[2] This suggestion is drawn from the Superannuation Industry (Supervision)

Regulations 1994 (Cth), r

1.04AAAA.

[3] This suggestion is drawn from the Relationships Act 2003 (Tas) s

4(2).

[4] See further section 11.2 of this Discussion Paper.

[5] Workplace Relations Act 1996 (Cth) as

amended by the Workplace Relations Amendment

(Work Choices) Act 2005 (Cth) ss 244(b), 257, 263, 282, 298.

[6] Remuneration Tribunal Act 1973 (Cth),

Remuneration Tribunal Determination 2004/03 Official Travel by Office Holders.

[7] Defence Instructions (General) DI(G) PERS 53-1 of 1 December 2005 amended the

Defence Instruction (General) Manual and the ADF Pay and Conditions

Manual.

[8] Remuneration Tribunal Determination

2004/03 Official Travel by Office

Holders.

[9] Determination 2005/09.

[10] Defence Force (Home Loans Assistance) Act

1990 (Cth).

[11] Defence Force (Home Loans Assistance) Act

1990 (Cth) ss 26,

29.

[12] Governor-General Act 1974 (Cth) ss 4,

4A and

4AA.

[13] Members of Parliament (Life Gold Pass) Act

2002 (Cth) ss

10-12.

[14] Judicial and Statutory Officers (Remuneration

and Allowances) Act 1984 (Cth) ss 4, 6.

[15] Safety, Rehabilitation and Compensation Act

1988 (Cth).

[16] Veterans' Entitlements Act 1986 (Cth).

[17] Military Rehabilitation and Compensation Act

2004 (Cth).

[18] Seafarers Rehabilitation and Compensation Act

1992 (Cth).

[19] Foreign States Immunities Act 1985 (Cth).

[20] International Organisations (Privileges and

Immunities) Act 1963 (Cth).

[21] Passenger Movement Charge Collection Act

1978 (Cth).

[22] Income Tax Assessment Act 1936 (Cth) s

159J.

[23] Income Tax Assessment Act 1936 (Cth) ss

79A, 79B 23AB(7).

[24] Income Tax Assessment Act 1936 (Cth) s

160AAAA.

[25] Income Tax Assessment Act 1936 (Cth)

s159T.

[26] Income Tax Assessment Act 1936 (Cth) s

274.

[27] Income Tax Assessment Act 1936 (Cth) s

159P.

[28] Income Tax Assessment Act 1936 (Cth) s

159.

[29] Income Tax Assessment Act 1936 (Cth) ss

102AGA, 160ZZM, 160ZZMA.

[30] Income Tax Assessment Act 1997 (Cth)

sub-div 61-I s61.360.

[31] Income Tax Assessment Act 1997 (Cth) s

61.496.

[32] Income Tax Assessment Act 1997 (Cth) s

118.205.

[33] Income Tax Assessment Act 1997 (Cth) s

118.110(1).

[34] Australian Tax Office Ruling ATO ID

2003/7.

[35] Fringe Benefits Tax Assessment Act 1986 (Cth) ss 58, 58U,

58T.

[36] Fringe Benefits Tax Assessment Act 1986 (Cth) s

57.

[37] Fringe Benefits Tax Assessment Act 1986 (Cth) s 58LA.

[38] Social Security Act 1991 (Cth) s

4(2).

[39] Social Security Act 1991 (Cth) s

4(1).

[40] Social Security Act 1991 (Cth) ss

771-771NZAA.

[41] Social Security Act 1991 (Cth) s

771HA.

[42] Social Security Act 1991 (Cth) ss

315-359.

[43] Social Security Act 1991 (Cth) ss

237-243,

592-592E.

[44] Social Security Act 1991 (Cth) ss

512-514F.

[45] Social Security Act 1991 (Cth) ss

235-236B.

[46] Social Security Act 1991 (Cth) ss

362A-407,

408AA-408GI.

[47] Social Security Act 1991 (Cth) s

43(1A).

[48] Social Security Act 1991 (Cth) s

1067A(2).

[49] Social Security Act 1991 (Cth) s

1067C.

[50] Social Security Act 1991 (Cth) s

541D(1A).

[51] Social Security Act 1991 (Cth) ss

1185A, 17A .

[52] Social Security Act 1991 (Cth) s

1159.

[53] Social Security Act 1991 (Cth) s

8(1B).

[54] Social Security Act 1991 (Cth) s

612(1). This is not an exhaustive

list.

[55] Social Security Act 1991 (Cth) s

500Q.

[56] Social Security Act 1991 (Cth) s

681(1).

[57] Social Security Act 1991 (Cth) s

1071A.

[58] Social Security Act 1991 (Cth) s

612(2). This is not an exhaustive

list.

[59] Social Security Act 1991 (Cth) s

681(2).

[60] Social Security Act 1991 (Cth) ss

1064-A2,

G3.

[61] Social Security Act 1991 (Cth) ss 500Q,

1066-A2.

[62] Social Security Act 1991 (Cth) s

19C.

[63] Social Security Act 1991 (Cth) ss 1068,

503. This is not an exhaustive

list.

[64] Social Security Act 1991 (Cth) s

1067L.

[65] Social Security Act 1991 (Cth) s

1067G.

[66] Social Security Act 1991 (Cth) ss

1065-B1.

[67] See Family Assistance Office, 'Factsheet, Family Tax Benefit Part A'

(1 July 2006).

[68] See Family Assistance Office, 'Factsheet, Family Tax Benefit Part B'

(1 July 2006).

[69] A New Tax System (Family Assistance) Act

1999 (Cth) ss 43-46.

[70] Medicare Levy Act 1986 (Cth) s 8.

[71] Medicare Levy Act 1986 (Cth) ss 8B-8D.

See also Income Tax Assessment Act 1997 (Cth) s

61.305.

[72] Medicare Levy Act 1986 (Cth) s

3A.

[73] Medicare Levy Act 1986 (Cth) s

8(5).

[74] For Commonwealth Concession card holders and families eligible for Family Tax

Benefit A, the threshold in 2006 was $500.

[75] National Health Act 1953 (Cth) s

84C.

[76] Family Law Act 1975 (Cth).

[77] Family Law Act 1975 (Cth) s 60H(1).

[78] See Family Law Act 1975 (Cth) ss 61C,

61D, 61DA. If parental responsibility is shared then under 65DAA the Court must

consider the child spending equal time or substantial and significant time with

each

parent.

[79] Family Law Act 1975 (Cth) s 65DAA.

[80] Child Support (Assessment) Act 1989 (Cth).

[81] See Miranda Stewart, 'Superannuation, Same-Sex Couples and

Interdependency: Between Equality, Property and Family' (2006) 28 Sydney Law Review 437 at

446-451.

[82] Superannuation Legislation Amendment (Choice

of Superannuation Funds) Act 2004 (Cth).

[83] Superannuation Industry (Supervision) Regulations 1994 (Cth), Regulation

1.04AAAA.

[84] Miranda Stewart, 'Superannuation, Same-Sex Couples and Interdependency:

Between Equality, Property and Family' (2006) 28 Sydney Law Review 437 at 464.

[85] Superannuation Industry (Supervision) Act Regulations 1994 (Cth) as amended by

the Superannuation Industry (Supervision) Amendment Regulations 2005 (No 8)

(Cth).

[86] Family Law Act 1975 (Cth) s 90MC.

[87] Superannuation Act 1976 (Cth).

[88] Superannuation Act 1990 (Cth).

[89] Defence Force Retirement and Death Benefits

Act 1973 (Cth).

[90] Military Superannuation and Benefits Act

1991 (Cth).

[91] Parliamentary Contributory Superannuation

Scheme Act 1948 (Cth).

[92] Judges' Pension Act 1968 (Cth).

[93] Aged Care Act 1997 (Cth).

[94] Aged Care Act 1997 (Cth) s 44.10(2)(a)

- (2)(c).

[95] Sex Discrimination Act 1984 (Cth) s

6.

[96] Eligibility to visit and migrate to Australia is governed by the Migration Act 1958 (Cth) and Migration

Regulations.

[97] Migration Regulations 1994 (Cth) reg 109A.

[98] Temporary Business (Long Stay) Visa (subclass 457).

[99] Life Insurance Act 1995 (Cth) s

204.

[100] Civil Aviation (Carriers' Liability) Act

1959 (Cth) ss 12(5), 35(5).

[101] Criminal Code Act 1995 (Cth) s

102.8(4)(a).

[102] Evidence Act 1995 (Cth) s 18(6). Note

that s 19 excludes certain proceedings from this

provision.

[103] Proceeds of Crime Act 2002 (Cth) ss 24,

72.

[104] Aboriginal Land Grant (Jervis Bay Territory)

Act 1986 (Cth) s 37(1).

[105] Aboriginal Councils and Associations Act

1976 (Cth) s 49.

[106] Marriage Amendment Act 2004 (Cth) sch

1.