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Same-Sex: Same Entitlements: Chapter 1


Same-Sex: Same Entitlements Report

Chapter 1. Introduction

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persons are equal before the law and are entitled without any discrimination to

the equal protection of the law. In this respect, the law shall prohibit any

discrimination and guarantee to all persons equal and effective protection

against discrimination on any ground...

International Covenant on Civil and Political Rights,

article 26

In all actions concerning children, whether undertaken

by public or private social welfare institutions, courts of law, administrative

authorities or legislative bodies, the best interests of the child shall be a

primary consideration.

Convention on the Rights of the Child, article


1.1 Is

there really discrimination against same-sex couples and their


The right to non-discrimination, equality before the

law and the protection of the best interests of the child are among the most

fundamental of all human rights principles. Yet there are a raft of laws on

Australia’s books which deny basic financial and work-related entitlements

to gay and lesbian couples and their children.

Appendix 1 to this report sets out a long list

of federal laws which clearly discriminate against same-sex couples in the most

ordinary areas of every day life. All these laws breach the International

Covenant on Civil and Political Rights (ICCPR) and some of them breach the Convention on the Rights of the Child (CRC).

Same-sex couples and families get

fewer leave entitlements, less workers’ compensation, fewer tax

concessions, fewer veterans’ entitlements, fewer health care subsidies,

less superannuation and pay more for residential aged care than opposite-sex

couples in the same circumstances.


couples are denied these basic financial and work-related entitlements because

they are excluded from the definitions describing a couple in all the federal

laws in Appendix 1. Federal law after federal law defines a

‘partner’ or a ‘member of a couple’ or a

‘spouse’ or a ‘de facto spouse’ as a person of the

opposite sex.

Further, children in same-sex

families may suffer because one or both of their parents are denied the

financial and work-related entitlements which are intended to help families live


1.2 How

many people does the discrimination affect?

The 2001 Australian census suggests that there are

approximately 20 000 same-sex couples living together in the same

home.[1] Of those 20 000 couples,

approximately 20% of lesbian couples, and 5% of gay male couples are living with


However, the Australian Bureau of Statistics

suggests that the figure of 20,000 underestimates the true number of same-sex

couples.[3] And several surveys

suggest that there are many more gay male couples with children than the 5%

suggested in the census – some suggest the figure is closer to



the precise figures, it is quite clear that discrimination against same-sex

couples and their children affects many people in the Australian community.

1.3 How

do same-sex couples feel about discrimination in the area of financial


The Inquiry spent more than three months travelling

around Australia holding public hearings and community forums to hear, first

hand, about the impact of discriminatory laws on gay and lesbian couples.

Those public consultations, and some of the

680 written submissions received by the Inquiry, clearly describe the financial

and emotional strain placed on gay and lesbian couples who are trying to live

their lives like everybody else in the community.

One Victorian expressed his frustration as


The inequalities embedded in current legislation are

obvious and are inexcusable. ‘Understanding, tolerance and

inclusion’ are said to be values of the Australian community. Current

legislation tells another



lesbian couple from Adelaide said the following:

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



lesbian parent in Sydney made a similar plea:

I am not a second class citizen and [I] resent my family

and I being treated as such. All I ask is to be treated equally, no more and no

less than any other Australian. Just



gay doctor put it like this:

I am a first-class taxpayer but a second-class


1.4 How

easy is it to fix the discrimination?

It is simple to remove discrimination against same-sex

couples in the area of financial and work-related entitlements: change the

definitions in the laws listed in Appendix 1.

There is no need to rewrite federal tax

legislation, superannuation legislation, workers’ compensation

legislation, employment legislation or any other major area of federal financial


There just needs to be some

minor changes to a few definitions at the front of each relevant piece of


The definitions describing a de

facto couple should include opposite-sex and same-sex couples alike. And the

terms describing the relationship between a child and his or her parents should

include same-sex and opposite-sex parents alike.

Chapter 18 on Findings and Recommendations and

Appendix 1 to this report provide further guidance on how this can be


1.5 Do

you need same-sex marriage to remove discrimination in financial and

work-related entitlements?

Many submissions to the Inquiry discuss the importance

of formal recognition of same-sex relationships through registration schemes,

civil unions or marriage. Other submissions to the Inquiry express opposition to

same-sex marriage.

The Inquiry understands

that for some people in same-sex relationships, formal recognition is not only a

path to legal rights and equality, but an important symbolic expression of love

between two people.

However, the focus of this

Inquiry has been to make sure that all couples in Australia have

the same access to basic entitlements like tax concessions, superannuation death

benefits, carer’s leave, workers’ compensation, veterans’

entitlements and aged care.

An opposite-sex

couple does not have to marry to get those entitlements; nor should a same-sex

couple have to marry.

So, while same-sex

marriage or civil unions could assist those couples who choose to formalise

their relationship in that way, this Inquiry has focussed on ensuring that all couples have all the same rights whether or not they are married.

1.6 What

is the structure of this report?

This report starts by setting out the Inquiry’s

methodology in Chapter 2 and the human rights of people in same-sex couples, and

their children, in Chapter 3.

Chapter 4 on

Recognising Relationships summarises how federal laws regarding financial and

work-related entitlements define a person in a couple. It describes how state

and territories have reformed their laws to remove discrimination. It then

briefly discusses the potential impact of formal relationship recognition

schemes in the area of financial entitlements. Finally, Chapter 4 proposes a new

definition of ‘de facto relationship’ for all federal laws, which

would remove discrimination against same-sex


Chapter 5 on Recognising Children

explains how family law defines a parent-child relationship when a child is born

to a same-sex couple. It explains how those legal relationships impact on who is

a ‘child’ in laws regarding financial and work-related entitlements.

It then sets out what should change to remove the


Chapters 6 – 15 describe

the impact of discriminatory definitions in the following areas of financial and

work-related entitlements:

Chapter 6 Employment

Chapter 7 Workers’ Compensation

Chapter 8 Tax

Chapter 9 Social Security

Chapter 10 Veterans’ Entitlements

Chapter 11 Health Care

Chapter 12 Family Law

Chapter 13 Superannuation

Chapter 14 Aged Care

Chapter 15 Migration


table of contents to each chapter summarises which entitlements are, or are not,

available to a same-sex couple or family. Each chapter also has a list of

legislation at the end which sets out the definitions that need to change to

remove the discrimination identified throughout the chapter.

Chapter 16 sets out a miscellaneous list of

additional legislation which may discriminate against same-sex couples and


Chapter 17 briefly discusses general

homophobia in the community and discrimination on the basis of gender identity.

Those issues did not fall directly within the Inquiry’s Terms of

Reference, but they were of substantial concern to several people making

submissions and speaking at community forums.

Chapter 18 summarises the Inquiry’s

findings and recommendations.

Appendix 1 sets

out a comprehensive list of legislation which must be amended to remove

discrimination against same-sex couples and their children in federal law. This

is an accumulation of the lists at the end of each of Chapters


Appendix 2 sets out a small

selection of stories describing the impact of discrimination on same-sex couples

and families.

Appendices 3–5 provide

details on who made submissions, the Inquiry’s public hearings and the

Inquiry’s community forums.


[1] Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex

Couple Families’, p142


[2] Australian Bureau of Statistics, Year Book Australia, ‘Same-Sex

Couple Families’, p142