ࡱ> rts` &Jbjbjss .dAm    ( ( ( < ! ! !8X!t!D< =j!!!!!!!!T=V=V=V=V=V=V=$??hAz=( '!!''z=( ( !!=((('^( !( !T=('T=((n;( ( <!! >ە !o'^< =T=0=< 1B'1B@<1B( <8!V@#(4$$!!!z=z=[(^!!!=''''< < <  !< < < !< < < ( ( ( ( ( (   INCLUDEPICTURE "http://www.aidsaction.org.au/content/goodprocess/Goodprocess.gif" \* MERGEFORMATINET  Good Process C/- PO Box 36 CURTIN ACT 2605 Same-Sex Inquiry Human Rights Unit Human Rights & Equal Opportunities Commission GPO Box 5218 SYDNEY NSW 2001 Submission from Good Process The Good Process lobby group was formed in October 2002 in response to the ACT government's commitment to consider legislative and policy reforms to effect equality for gay, lesbian, bisexual, transgender and intersex people in the ACT. You will be aware that the ACT government passed the Civil Union Act on 11 May 2006. This law established Civil Unions as a new legal relationship category that would be separate from marriage, but ensure that Civil Union partners received all the same rights and responsibilities as married couples under territory law. This law has since been disallowed by the Governor-General, in response to advice from the Federal Government. Good Process was extremely disappointed at the Federal Governments decision in this regard. We believe that all persons have a right to equality under state, territory and federal law, regardless of Gender. Good Process acknowledges that the Federal Government has made some minor changes to recognise same-sex couples in the area of defence force entitlements, superannuation death benefits, skilled migration provisions and anti-terrorism legislation. However, same-sex couples are still excluded from the rights and obligations held by heterosexual couples in most federal legislative areas. These include superannuation, health insurance and Medicare, social security, veterans entitlements, immigration and taxation. In Attachment A, we discuss our particular concern regarding areas of superannuation legislation where financial discrimination against same-sex couples continues. We are aware of many current and retired Commonwealth Public Servant and Defence Force personnel who are affected. Some reforms were enacted in July 2004 when a new category of interdependency relationships was introduced as a class of eligible beneficiary of death benefits under federal superannuation law. However this change was not carried across to Commonwealth and ACT superannuation schemes (CSS, PSS, MSBS and DFRDB). These schemes come under separate legislation. -2 - At the time, there was an assurance from the then Minster for Revenue that the consequential amendments would be made to ensure consistency with the Governments policy to recognise interdependent relationships for the purpose of death benefits. Given that the definition of interdependency was based on the existing concept used in the Property (Relationships) Act 1984 (NSW), we believe that there is no reason why the Federal Government cannot cost the budgetary impact of this change. There are a number of other major provisions relating to superannuation that interdependent and same-sex couples still cannot participate in. These are the anti-detriment reserve, revisionary pensions, spouse contributions splitting and the spouse contribution rebate. We have provided more detail in the attachment of the outstanding issues affecting of same-sex couples (Attachment A). Attachment B provides further details regarding the relationship recognition models and makes two clear recommendations regarding the most efficient methods of removing discrimination against same-sex couples. In short, federal, state and territory legislation should be amended to offer same-sex couples presumptive de facto protection as well as the opportunity to opt-in to a process, such as Marriage or Civil Unions, which secures their legal rights. Attachment C explores the way in which the rights of children of same-sex couples suffer when discriminatory legislation refuses to recognise their relationship with both of their same-sex parents. In order to remove such discrimination, we recommend that all State and Territory birth registration systems and parenting presumptions be amended, along with federal, state and territory adoption legislation. Thank you for the opportunity to participate in this important enquiry. We would be happy to provide you with any additional information and would also be happy for our submission to be published in your report. Yours sincerely Nerida Cole For Good Process 16 June 2006 ATTACHMENT A Outstanding superannuation issues affecting same-sex couples The change made in 2004 was to allow the interdependent people to receive death benefits from superannuation at the same concessional tax rates as other eligible beneficiaries. At the time of the change, Senator Coonan wrote to the Minister for Finance and Defence about extending this definition to the Public Sector Superannuation Schemes. Other areas relating to superannuation remain unchanged, creating some inconsistencies. ComSuper Schemes A same sex partner cannot receive a pension in the event of the death of their partner as the pensions are based on reversionary pension calculations. This includes CSS, PSS (defined), MSBS and DFRDB. If the member has an eligible child, the child will receive an orphans pension, but the same-sex partner cannot. If there are no other eligible beneficiaries, a lump sum can be paid to the estate and distributed to the same-sex partner. However, the lump sum is worth far less then a ComSuper pension. For example, a $500,000 lump sum could buy a commercial pension of $23,697 (male 55 year old). However, investing a lump sum would mean taking on an investment risk and would involve management of the investment and payment of all associated investment fees. In contrast, as a surviving eligible spouse of a ComSuper PSS member, a notional $500,000 lump sum would entitle the person to a guaranteed pension of $30,454 fully indexed for their entire life (67% of the original members pension if they stayed in the scheme until age 60). No fees are charged by ComSuper to manage the pension. Reversionary Pensions Under current legislation, a person can nominate a spouse to continue to receive their pension in the event of their death. When the pension is set up, a person is able to select a term based on either their or their spouses life expectancy. This assists with managing assets where an age difference exists between a member of a couple. It also slows the eating away of capital and is useful if a longer life expectancy is expected or a selected term is preferred (ie, to reduce the risk of the survivor outliving their capital). - 2 - Spouse Rebate This is a $540 rebate for making a $3,000 contribution to a lower income earning spouses superannuation account (less than $13,800). Spouse Contributions Splitting This provides a large number of retirement benefits and ongoing taxation savings. Anti-Detriment Provisions (ITAA section 279D) This provision allows for the refund of superannuation contributions tax to beneficiaries in the event of death before a superannuation pension has been run. ATTACHMENT B Non-Discriminatory Relationship Recognition Models Good Process notes that laws governing access to financial and work-related entitlements and benefits generally define who in an eligible relationship in two key ways: by recognising parties who have opted-in to the institution of marriage; and by presuming that certain parties are in a marriage-like relationship. The opt-in institution of marriage involves parties choosing to make a legally-recognised commitment to one another, which includes the assumption of specific rights and responsibilities. In contrast, presumptive legislation imposes legally-significant family structures upon couples without their explicit consent. Legislation in all Australian jurisdictions attaches legal rights and responsibilities to partners on the basis that they are in a de facto marriage-like relationship. In this context, whether a couple is presumed to be in a marriage-like relationship is determined by reference to a number of factors including the duration and social nature of the couples relationship, their degree of financial interdependence and their joint care of children. Good Process notes that although presumptive legislation provides a safety-net of rights to de facto couples, the very question of whether or not a de facto relationship exists is always a matter of proof. In contrast, opt-in mechanisms such as marriage, or the relationship registration schemes provided by Tasmanias Relationship Recognition Act 2003 and the ACTs recently disallowed Civil Union Act 2006, confer immediate rights and responsibilities upon the parties involved. Opt-in mechanisms give partners the legal certainty that they will be able to access specific financial and work-related entitlements and benefits without having to provide proof of their relationship to the relevant decision-maker. In order to remove discrimination against same-sex couples in relation to financial and work-related entitlements and benefits, Good Process submits that state, territory and federal governments must address discrimination at both the presumptive and opt-in levels. Presumptive criteria-based de facto relationship definitions In preparing this submission, Good Process considered laws in the areas of social security, tax concessions and rebates, health and pharmaceutical benefits concessions, veterans benefits and industrial relations law. Good Process found that the definition of who is in an eligible relationship differed between legislation. However, all federal legislation and many laws in the States and the Northern Territory discriminate against same-sex couples by using referring to marriage and criteria-based de facto relationship definitions which discriminate on the basis of gender. Good Process believes that variations in criteria-based definitions of de facto relationships create an indefensible level of inconsistency. We submit that the simplest way to achieve equality for same-sex couples would be to remove gender-based discrimination from all definitions of de facto relationships. For example, the NSW Property (Relationships) Act 1984 and the ACT Domestic Relationships Act 1994, along with De facto legislation in Queensland, Victoria, Western Australia, the Northern Territory and Tasmania all provide possible models for non-discriminatory de facto relationship definitions. Further, to improve practicality and legal certainty, Good Process submits that all legislation containing criteria-based relationship definitions should be amended to reflect a common definition. This action would maximise legal certainty for same-sex and opposite-sex couples in terms of their eligibility for a range of federal, territory and state-based financial and work-related entitlements and benefits. Opt-in Legal Certainty Good Process submits that removing legal discrimination against same-sex couples requires the Federal Government to also enact an opt-in relationship registration scheme. Whether it be a Tasmanian-style registration scheme, an ACT-style Civil Union scheme or a new legal mechanism, same-sex couples must be given the opportunity to secure the legal status of their relationship and accordingly, their access to financial and work-related entitlements and benefits. Although some opposite-sex and same-sex partners may be happy to rely on the presumptive safety-net discussed above, a registration scheme would allow couples who wish to secure their rights the ability to do so. Same-sex couples with children are likely to have a particular interest in ensuring that their relationship will be recognised immediately in times of potential crisis, such as the death or incapacity of a partner or relationship breakdown, where their childrens rights are most at risk. Key Recommendations regarding Models for Relationship Recognition: Good Process recommends that a common criteria-based definition of marriage-like relationships be devised and adopted across all Commonwealth, State and Northern Territory legislation. This definition should not discriminate on the basis of gender. Good Process recommends that the federal government implement an opt-in relationship recognition or civil union scheme to allow same-sex couples to secure the legal status of their relationship if they wish to do so. ATTACHMENT C Removing in-direct discrimination against 鱨վ of Same-Sex Couples There are a number of instances where legal discrimination against same-sex couples is indirect, and has flow on effects for the rights of children of those relationships, as per the rights set out in the United Nations Convention on the Rights of the Child (CRC), which Australia ratified in December 1990. Article 7 of the CRC states that every child has the right to be registered immediately after birth through a document that details his or her age and family affiliations. To comply with this obligation, all Australian jurisdictions should allow for birth certificates to include the names of both of a childs parents, regardless of gender. This is already possible in the ACT and Western Australia Parenting presumptions regarding children born through assisted conception procedures in the Family Law Act 1975 (Cth) and in State and Territory legislation should also be amended to remove discrimination against same-sex partners. Further, adoption laws should be amended to remove gender-based discrimination. Currently, only three jurisdictions, WA, ACT and Tasmania currently provide for adoption by the same-sex partner of a biological parent. Article 9 states that children have the right to know and be cared for by his or her parents. To comply with this obligation, all Australian jurisdictions should ensure that both of a childs parents are legally recognised and thus have the legal authority to make decisions on behalf of their child in areas such as discipline, education and health-care. In general, a childs right to parental care is also supported by workplace allocation of parental leave and government child-care allowances, which assist working parents to arrange care for their children. However, discriminatory legislative definitions such as those discussed above continue to deny same-sex couples access to such leave entitlements. Article 9 of the CRC also requires States to safeguard childrens right to contact with both parents upon relationship breakdown. The Federal Governments recent amendments to the Family Law Act 1975 place a renewed emphasis on the importance a child maintaining a meaningful relationship with both of his or her parents following relationship breakdown. Yet upon the breakdown of a same-sex relationship, the Family Law Act 1975 fails to recognise a childs right to contact with their non-biological co-parent, who does not fall within the definition of a legal parent. Article 27 states that every child has the right to a standard of living adequate for the childs physical, mental, spiritual, moral and social development. To comply with this obligation all Australian jurisdictions should ensure that financial entitlements currently available to opposite-sex couples and their children in areas including social security, superannuation, workers compensation and statutory victim compensation schemes are also available to same-sex couples and their children. The funds provided by these schemes are crucial to a familys ability to maintain an adequate standard of living, particularly in times of crisis . Article 28 requires States to secure financial maintenance for a child from his or her parents where separation or divorce occurs. To comply with this obligation, the Commonwealth Government should ensure that same-sex parents are recognised by the Child Support Assessment Act 1989 (Cth) to enable a childs primary care-taker to claim financial support to assist in caring for the child upon relationship breakdown. Good Process submits that a commitment to childrens rights requires state, territory and federal government to recognise that childrens rights are diminished whenever legislation refuses to recognise a childs relationship with both of his or her parents and the parents relationships with one other. Key Recommendations regarding the removal of in-direct discrimination against the children of same-sex couples: Good Process recommends that all State and Territory birth registration systems and parenting presumptions be amended to recognise a childs same-sex parents. Good Process recommends that adoption legislation be amended to facilitate adoption by the same-sex partner of a childs biological parent.  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