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CC d22AAAC$t22ACAAR2 p(C(0Xb b<bA%XCCCC666Tj$666j4     Same-Sex: Same Entitlements National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Benefits Human Rights and Equal Opportunity Commission Submission June 2006 鱨վ the Lobby HYPERLINK \l "_鱨վ_the_Gay_& Lesbian Rights Lobb"3 General comment  HYPERLINK \l "_General_comment" 4 The campaign for federal relationship recognition  HYPERLINK \l "_The_campaign_for_federal relationsh" 5 Same-sex relationships in Australia today  HYPERLINK \l "_Same-sex_relationships_in_Australia" 6 The impact of discrimination on GLBT Australians  HYPERLINK \l "_The_impact_of_discrimination on GLB" 8 Commonwealth legislation  HYPERLINK \l "_Commonwealth_legislation" 9 Interdependency under Commonwealth legislation  HYPERLINK \l "_Interdependency_under_Commonwealth_" 10 Workplace entitlements  HYPERLINK \l "_Workplace_Entitlements" 11 Social security  HYPERLINK \l "_Social_Security" 14 Tax Concessions  HYPERLINK \l "_Tax_concessions" 16 Medicare levy  HYPERLINK \l "_Medicare_Levy" 17 Health concessions  HYPERLINK \l "_Health_concessions" 18 Superannuation  HYPERLINK \l "_Superannuation" 20 Workers compensation  HYPERLINK \l "_Workers_compensation" 22 Veterans pensions and defence force entitlements  HYPERLINK \l "_Veterans_pensions_and_defence forc" 23 MP/Judicial entitlements  HYPERLINK \l "_MP/Judicial_entitlements" 24 Aged Care  HYPERLINK \l "_Aged_Care" 25 Child support  HYPERLINK \l "_Child_support" 26 Access to family court/ family law  HYPERLINK \l "_Access_to_family_court/family law" 27 Bankruptcy  HYPERLINK \l "_Bankruptcy" 28 Migration  HYPERLINK \l "_Migration" 29 Privacy Act  HYPERLINK \l "_Privacy_Act" 31 Insurance  HYPERLINK \l "_Insurance" 32 NSW legislation  HYPERLINK \l "_NSW_State_law" 33 Adoption Act  HYPERLINK \l "_Adoption_Act" 34 Status of 鱨վ Act  HYPERLINK \l "_Status_of_鱨վ_Act" 35 Parental leave  HYPERLINK \l "_Parental_leave" 36 Recommendations summary  HYPERLINK \l "_Parental_leave" 37 References  HYPERLINK \l "_References" 41 鱨վ the Gay & Lesbian Rights Lobby The Gay & Lesbian Rights Lobby (GLRL), established in 1988, is the peak representative organisation for gay and lesbian rights in New South Wales. Our mission is affirming our pride in our identity by achieving legal equality and social justice for lesbians and gay men. We are a membership-based organisation, managed by a fifteen person Committee of Management, which is elected by the membership at each AGM. The GLRL has a strong history in legislative reform. In New South Wales, we led the fight for recognition of same sex de facto relationships, which led to the passage of the Property (Relationships) Legislation Amendment Act 1999 and subsequent amendments. The GLRL was also successful in lobbying for the equalisation of the age of consent in NSW for gay men in 2003. At the federal level, the organisation has led the campaign for the recognition of same sex couples under superannuation law, working with both the Government and the opposition parties to achieve this important area of reform. The Lobbys method of political activism is based around community consultation and the publication of detailed reports on important topics of gay and lesbian law reform. These reports are used as the basis for providing our community with information about areas of discrimination and lobbying politicians and other lawmakers about the need for reform. We conducted community consultations in 1992/3 around relationship recognition resulting in the report The Bride Wore Pink, which was used as the basis for the campaign for de facto reform in NSW. In 2002/3 we undertook state-wide consultations on same-sex parenting and families and produced the report And then the Brides Changed Nappies. This year we have conducted extensive community consultations across NSW around the issue of federal relationship recognition. These reports and other publications from the Lobby are available at http://www.glrl.org.au/publications/index.html. General comment The Gay and Lesbian Rights Lobby is pleased to be making a submission to Same-sex: Same Entitlements, the National Inquiry into Discrimination against People in Same-sex relationships: Financial and Work-Related Entitlements and Benefits. In many legislative areas the human rights of GLBT Australians are neglected on a daily basis through government-sanctioned discrimination and exclusion, and we commend the Human Rights and Equal Opportunity Commission for recognising discrimination against people in same-sex relationships as a human rights issue that requires federal and state legislative redress. This submission will seek to address both aspects of the terms of reference, namely the equal enjoyment of human rights and equality of opportunity and treatment in employment or occupation. The submission will also investigate the impact of discrimination under both Commonwealth and NSW law, in accordance with part 2 of the terms of reference of the inquiry. A number of recommendations will be provided as to the most effective way forward to ensure that people in same-sex relationships are treated equally under federal and NSW law. All parts of legislation affect me its just that sense of injustice that you have around you. I think that that above all else is why the law should be changed. The discrimination, the unfairness and the inhumanity of it... - Francesca, Wollongong The campaign for federal relationship recognition Through the Equal in Love working group and All Love is Equal campaign, the GLRL has continued to campaign and lobby around the issue of federal relationship recognition. With assistance from the Law & Justice Foundation, the GLRL has recently undertaken an extensive GLBT community consultation across NSW on the issue of federal relationship recognition. The GLRL conducted face-to face consultations with over 150 people in Bathurst, the Blue Mountains, Kingsford, Lismore, Newcastle, Newtown, Parramatta, Petersham, Surry Hills and Wollongong, based on a discussion paper, All Love is Equal Isnt it?. In that paper, a preliminary position was put forward as to what form/s of federal relationship recognition the GLRL should pursue. That position was: 1. That the GLRL campaign for comprehensive de facto recognition across all federal areas of law to ensure that all same-sex relationships receive the rights and responsibilities that come with recognition under federal law. 2. In addition to comprehensive de facto recognition, we campaign for a formal model of relationship recognition (either marriage or civil unions), so that same-sex couples have the opportunity to have their relationships recognised by the state. We also conducted a short survey at the 2006 Mardi Gras Fair Day and online from February-April 2006, asking people a number of questions about federal relationship recognition. We received over 1500 responses making the survey one of the largest ever surveys on same-sex relationships conducted in Australia. We anticipate that the final report from the consultation will be released in the next few months. However, what was clear from the consultation process was that there was awareness amongst participants that same-sex couples are discriminated against across a wide range of legislative areas. Interestingly, the extent and complexity of legislative discrimination meant that many participants were not aware of the rights and entitlements that they did have, particularly in regards to de facto same-sex recognition under NSW law. What was universal amongst all participants was the strong conviction that same-sex relationships should be entitled to exactly the same rights, benefits and obligations afforded to opposite-sex relationships under federal and NSW law. We have included a number of quotes in this submission from participants in our face-to-face consultations, to emphasise the personal impact that discrimination has on the daily lives of GLBT people and people in same-sex relationships. For privacy purposes names have been altered. Same-sex relationships in Australia today Same-sex relationships, like opposite-sex relationships, play an important part in Australian society. These relationships provide support, care, security and fulfilment for thousands of GLBT Australians, and their children. At the 2001 Census there were 19 594 same-sex couples in Australia (representing 0.5% of couples). Given that the number of couples had doubled since Census data was first collected on same-sex couples in 1996, it is anticipated that the number of couples identifying as same-sex couples in the Census will increase significantly in this years Census. I want my relationship to be deemed equal to straight couples legally and financially. Im here for equality, not to get the best deal I can. Why shouldnt I be like everyone else? - Anonymous, Blue Mountains Over the past twenty five years, society has progressed in its treatment of same-sex attracted people, which has meant a greater visibility of same-sex relationships, and growing support for the equal legal recognition of same-sex couples. A Newspoll survey conducted in early 2006 found that 52% of respondents support the introduction of legislation by the federal government that would formally recognise same-sex relationships. With the exception of South Australia, every state and territory government has introduced comprehensive legislation that treats same-sex de facto couples equally with heterosexual de facto couples. While Australia was once considered a world-leader in its treatment of GLBT people and people in same-sex relationships, the failure of the federal Government to introduce needed reform in its decade in power has meant that same-sex couples in Australia receive less recognition than is afforded in other western liberal democracies such as the UK, Canada, NZ, Spain, and the Netherlands. The impact of discrimination on GLBT Australians Discrimination against people in same-sex relationships impacts on GLBT Australians in two ways. First, same-sex couples are subject to varying degrees of financial and non-financial disadvantage through a lack of access to government entitlements, benefits and concessions. It is a commonly held myth that gays and lesbians have high-incomes with little expenses associated with raising children. Research has shown that sexual orientation is not a major determinant of income distribution. Despite this, same-sex couples do not gain the financial advantages that are afforded to heterosexual couples, particularly under federal legislation. Second, legislative discrimination is a major contributor to the high levels of social discrimination and stigmatization that still exists towards GLBT Australians. By refusing to recognise same-sex relationships at a federal level, the Federal Government is sending a message that same-sex couples and GLBT people in general, should not be valued or treated equally with others. By failing to acknowledge the existence of same-sex families under NSW law, the NSW Government is stating that these families do not deserve the protection of the law that is afforded to other families. This discrimination manifests through higher levels of homophobic violence, harassment and exclusion in all aspects of society for GLBT people. A survey of 600 GLBT people conducted by the NSW Attorney-Generals Department in 2003 found that 85% of respondents had experienced abuse, harassment or violence. A nationwide survey of 5476 GLBT Australians undertaken in 2005 reported that 67% of respondents modified their daily activities as a result of fear of prejudice and discrimination. While removing legislative discrimination will not result in the elimination of homophobia in Australian society, it will be influential in challenging the stigmatization that exists against GLBT people and same-sex relationships. Commonwealth legislation In most part, discrimination that exists against same-sex relationships in Australia is found under commonwealth legislation. While every state except SA has introduced legislation that recognises same-sex couples across a wide range of legislative areas, federal law remains largely silent in its recognition of same-sex relationships. The one piece of federal legislation in which same-sex relationships are explicitly recognised is the Anti-Terrorism Act (No. 2) 2005, which includes same-sex partner under the definition of family member. Consequently, people in same-sex relationships are subject to discrimination across a wide range of legislative areas, which has both a financial and non-financial impact on the daily lives of thousands of Australians. The discrepancy between extensive de facto recognition under state law and comprehensive exclusion under federal legislation further exacerbates the disadvantage faced by same-sex couples under the law. There is no rational or legitimate reason for same-sex couples to be excluded from equal recognition under Commonwealth legislation. GLBT Australians participate in, and contribute to our society in exactly the same manner as other Australians and so should be treated equally before the laws which govern us. In a liberal democratic country such as Australia, the sole basis upon which legislative discrimination would continue is homophobia and ignorance about sexual diversity within society. Clearly there is no place for such characteristics in our legal institutions in the 21st Century. I keep getting confused about state and federal legislation. You think you have all the rights you need and then you get a letter from the Government saying same-sex couples are not recognised. You are starting to feel stronger and more recognised and then you get a letter from Medicare or the Government that makes you feel that you are not accepted and not part of the norm. The hetero-world doesnt see that and they dont see that you suffer with that. Jenny, Wollongong Interdependency under Commonwealth Legislation The category of interdependency has been introduced into two Commonwealth legislative areas in order to provide people in same-sex relationships, amongst others, with specific entitlements. The GLRL recognises the benefits of such legislative initiatives, and the pragmatic value of interdependency in the current political environment. However, we do not believe that interdependency is an adequate model of recognition of same-sex relationships under federal legislation. This is for two reasons: Adult, consensual relationships between two people of the same-sex are of equal value and importance to adult, consensual relationships between two people of the opposite sex. Therefore, where the law recognises such opposite-sex relationships as spouse, de facto or partner, equal recognition of same-sex relationships should be given under those definitions. The test to prove interdependency under current commonwealth legislation is more strenuous then proving that you are in a marriage or de facto relationship. Therefore, whilst same-sex relationships may receive benefits and entitlements, they will still be treated unequally before the law. Workplace Entitlements The failure of the Federal Government to endorse any form of relationship recognition unfortunately entrenches discriminatory policies and attitudes within the workplace. This failure to acknowledge GLTB relationships on a broad scale fails to give working couples the respect they deserve. Relationship recognition on a federal level would help normalise attitudes towards GLBT relationships. Discriminatory treatment at work, including a lack of access to workplace entitlements, is exacerbated without any form of relationship recognition in law. Problems have arisen in all sorts of different situations, from when an employee wants to invite his or her partner to a workplace function or to when they seek compassion from an employee when a partner has taken ill. The Australian Centre for Gay and Lesbian Research and Gay and Lesbian Rights Lobbys 2002 report The Pink Ceiling is Too Low Workplace Experiences of Lesbians, Gay Men and Transgender People ran a survey asking 172 participants their experiences of discrimination in the workplace. The survey found many participants did not even bother asking for some workplace benefits (up to 44% in some instances) as they felt that the message was clear that these benefits were not available to them. One participant said I dont even bother applying because I know I would be refused. I havent applied for any special leave to care for my partner who is ill because someone else in a similar situation got rejected. Arguably, a broad-based relationship recognition scheme would give an impetus to changing specific workplace benefits that currently discriminate against GLBT couples. Some of these specific workplace benefits that are currently discrimination hotspots for GLBT couples: Carers leave and bereavement leave for a GLBT partner [in the survey in The Pink Ceiling is Too Low, 6% of the participants noted they unable to obtain leave for a sick partner, while 43% had been refused compassionate leave] Health insurance under some employer-nominated schemes Additional employment benefits included in a salary package or negotiated in the workplace, such as staff discounts or travel allowances [in the survey, 7% of the participants noted they had been unable to include their partner in travel arrangements similar to straight couples. One participant stated My partner could travel with me occasionally but I doubt that I would get the financial benefits that my straight friends get when their partners travel so I dont even consider it, while another participant suggested I think it would be too difficult to obtain these so I havent even applied.] The recognition of GLBT relationships across the whole range of superannuation benefits. Recent legislation allowed GLBT couples to nominate their partner to receive super benefits on death and enjoy a tax free status. However, these laws did not cover the super of government and public sector employees. In addition, benefits such as Super Contributions Splitting are only open to heterosexual couples. The federal Workplace Relations Amendment (Workchoices) Act 2005 (Cth) maintains the definition of de facto spouse in the Workplace Relations Act 1996 (Cth). This includes opposite sex partners but does not include the GLBT partner of employees. This new workplace regime entrenches discriminatory workplace arrangements by withholding benefits to GLBT couples. Employees previously protected under the wider definition in the NSW legislation will now lose their access to benefits if they are found to fall under the Federal jurisdiction. For example, the Act refers to carers leave and compassionate leave by reference to a member of the employees immediate family or a member of the employees household. Immediate family is defined to include de facto partners of the opposite sex and the child, parent, grandparent, grandchild or sibling of a de facto partner of the opposite sex. GLBT couples are excluded from this definition. The Act also excludes GLBT families by restricting the definition of parental and adoption leave. The definition of parental leave is not gender neutral and does not recognise that GLBT couples with children deserve the same benefits. For example, under the new laws, only the opposite sex partners of women giving birth may be entitled to paternity leave. In this way, the new workplace laws entrench discriminatory attitudes towards GLBT families in the workplace.  SHAPE \* MERGEFORMAT  Social Security The Social Security Act 1991 (Cth) excludes same-sex interdependent couples, by restricting the definition of member of a couple to people who are married or in opposite-sex de facto couples. Therefore, lesbians and gay men are assessed as individuals for the purposes of social security. As a result, lesbians and gay men are not eligible for a number of benefits. For example, a partner allowance cannot be paid to a lesbian or gay man whose partner is receiving the disability support pension, age pension, mature age allowance, sickness allowance, special benefit, Newstart allowance, Youth Allowance, Austudy or Abstudy. Lesbians are not eligible for the widow B pension or the widow allowance, as these are only available to women who were in a heterosexual relationship and have been widowed, deserted or divorced. The bereavement allowance is only payable to a person whose heterosexual partner has died. One of the ways in which a person can be classified as independent, and therefore is not assessed against their parents income or assets for the purposes of Youth Allowance, is if they are a member of a Youth Allowance Couple. The exclusionary definition of a YA couple under s1067C of Social Security Act 1991 (Cth) has an impact on the ability of a person in a same-sex relationship to receive youth allowance, by making it harder for them to be assessed independently of their parents. The situation is further exacerbated where a young GLBT person is estranged from their family, but is not considered to be financially independent. Centrelink didnt recognise my relationship. They referred to us as friends Anna, Wollongong There are a number of advantages for same-sex couples in not being defined as a couple for the purpose of means testing under social security. A partners income or assets are not taken into account in determining whether a person is eligible for a social security benefit. Recognising same-sex relationships under the Social Security Act 1991 (Cth) will have significant negative implications for many people in same-sex relationships. These people are likely to be the most financially disadvantaged members of the GLBT community. Therefore any reform to recognise same-sex relationships should take place following a suitable phase in period to allow those affected the necessary time to adjust their finances.  SHAPE \* MERGEFORMAT  Tax concessions The definition of 'spouse' under the Income Tax Assessment Act 1997 (Cth) excludes same-sex couples from the income tax benefits available to heterosexual couples. It also means that lesbians and gay men who are non-biological co-parents of children do not have access to the same income tax benefits relating to their child as heterosexual parents. Under the Income Tax Assessment Act 1936 (Cth) the following income tax benefits are not available to same-sex couples: dependant spouse rebate (s159J) housekeeper rebate (s159L) child-housekeeper rebate (s159J) parent rebate (s159J) superannuation rebate (s159T-159TC) For other benefits, heterosexual couples are given concessional rates in determining their eligibility. The same does not apply for same-sex couples. These benefits include: pensioner rebate (s160AAA) low-income aged persons rebate (s160AAA) medical expenses rebate (s159P)  SHAPE \* MERGEFORMAT  Medicare Levy The exclusionary definition of spouse under the Income Tax Assessment Act 1936 (Cth) also means that people in same-sex relationships are not eligible to pay a reduced rate of the Medicare levy like heterosexual couples where their combined income is below the family income threshold of $100,000. Consequently, people in same-sex relationships are able to receive less tax relief than people in heterosexual relationships.   SHAPE \* MERGEFORMAT  Health concessions Costs associated with health care in Australia place a significant burden on many families, including same-sex couples and same-sex parent families. However, the lack of recognition under federal law means that these families are subject to greater health costs, as they do not qualify for the advantages given to families under both the Medicare Safety Net and the Pharmaceutical Benefits Scheme. Medicare Safety Net The Medicare Safety Net is governed by the Health Insurance Act 1973 (Cth). The Safety Net works by subsiding medical expenses by 80% once a threshold amount of $716.10 has been spent in a year. Under the Act, a family is able to combine their total expenses in order to reach one threshold. As same-sex couples are not recognised under the Health Insurance Act 1973 (Cth) as a family, each member of the same-sex couple must spend $716.10 a year on medical expenses before they are eligible for the Safety Net. This results in significantly greater out-of-pocket medical expenses for people in same-sex relationships.  Pharmaceutical Benefits Scheme Under the Pharmaceutical Benefits Scheme (PBS) once an individual, couple or family has spent $960.10 in one year on medication they are entitled to receive a safety net concession card, which means that all prescriptions after this point would cost $5.20. Under section 84B of the National Health Act 1953 (Cth), a family is defined as a persons spouse and children. The definition of spouse is limited to opposite sex couples, which excludes same-sex couples as well as non-biological co-parents. As a result a same-sex parent family would need to reach two thresholds in order for all members of the family to be covered under the PBS, as opposed to opposite-sex parent families which only need to spend $960.10. This legislative discrimination can cost up to $755 a year the difference between the full price that the second same-sex partner must pay for 32 prescriptions in order to reach the threshold, and the concession price that they would if they were in a heterosexual couple.  Superannuation Besides real estate, superannuation is likely to the valuable financial asset for Australians, and its importance to peoples financial security will continue to grow. It is therefore alarming that people in same-sex relationships continue to face disadvantage when it comes to their superannuation. There are a number of different pieces of legislation dealing with super that do not properly recognise same-sex relationships. Superannuation death benefits The Federal Government amended the Superannuation Industry (Supervision) Act 1993 (Cth) to allow interdependency relationships to be classified under the category dependant, thereby allowing people in same-sex relationships to leave their super death benefits to their partner if covered under a private superannuation fund. Despite a commitment from the Government, public sector funds have not incorporated the category of interdependency, meaning that public sector and military employees who are in a same-sex relationship cannot nominate their same-sex partner of their beneficiary for any super death benefits. Instead they must distribute their benefit to their partner through their estate, which attracts a higher rate of tax.  Spouse rebate An 18% income tax rebate is provided where someone contributes to the superannuation of their spouse, provided that they are a low-income earner. Same-sex couples are not eligible for this rebate as they are not defined as a spouse under the Income Tax Assessment Act 1936 (Cth).  Contributions Splitting Recent changes to superannuation legislation have allowed spouses to split their compulsory as well as personal contributions between themselves. The benefit derived from this is being able to spread the cumulative value of the couples super so that both remain under the individual tax-free threshold of $129, 751. The definition of spouse under Division 6.7 of the SIS Regulations does not include same-sex couples, so therefore they are not able to take advantage of this entitlement.  Workers compensation A discrepancy exists between NSW and federal workers compensation legislation, which affects whether or not a surviving same-sex partner is eligible for workers compensation in the event of the employees death. Under the NSW Workers Compensation Act 1997, same-sex de facto spouses are considered dependants and therefore may qualify for lump sum compensation in the event that their partner dies, or a weekly payment where they are totally incapacitated. If a person in a same-sex relationship is covered under federal workers compensation laws, then their partner will not receive compensation, as the definition of dependant under the Safety, Rehabilitation and Compensation Act 1988 (Cth) excludes same-sex relationships.  Veterans pensions and defence force entitlements Where one partner is in active service, the 2005 changes to the Defence Instruction (General) Manual and the ADF Pay and Conditions Manual, mean that same-sex relationships and other close interdependent relationships are partially recognised with respect to: On and off-base accommodation Relocation expenses and travel benefits Leave entitlements personal and carers leave policies Education and training. However, the reforms do not extend to all military entitlements. Discrimination remains under the Defence Force Retirement and Death Benefits Act 1973 (Cth), Veterans Entitlements Act 1986 (Cth) and the Defence Force (Home Loans Assistance) Act 1990 (Cth) among others, with respect to: Spousal funeral and counselling entitlements Spousal death benefits, compensation and pension entitlements Retirement benefits and superannuation Access to ADF housing loans.  MP/Judicial entitlements Judges and members of Commonwealth parliament who are in same-sex relationships are subject to discrimination by not having their partners recognised in legislation governing their work-related entitlements. Judges The Judges Pension Act 1968 (Cth) does not recognise same-sex relationships as marital relationships. As a result, in the event that the recipient of a Judges pension dies, their same-sex partner is denied access to a reduced pension, unlike surviving heterosexual spouses.  SHAPE \* MERGEFORMAT  Members of Parliament Where a former parliamentarian dies, their surviving spouse is entitled to an annuity in accordance with section 19 of the Parliamentary Contributory Superannuation Act 1948 (Cth). However, as the definition of spouse under the Act excludes same-sex relationships, surviving partners from a same-sex couple do not qualify for the annuity.  SHAPE \* MERGEFORMAT  Aged Care There is little acknowledgement in aged care policy that gays and lesbians over 55 exist and have different needs and wants to heterosexuals. With the huge boom predicted in aged care services and the ageing of the baby boomer population, it is important that aged care policy and education reflects the diversity in aged care needs. Under the Aged Care Act 1997 (Cth) government assistance is given for people entering aged care facilities. In determining eligibility for such assistance, an assets test is undertaken. As same-sex relationships are not recognised under the definition of a member of a couple, they are not able to spread the value of their assets across two people. In circumstances where one partner has considerably more assets than the other, this could mean that they do not qualify for the financial assistance that they would if they were in a same-sex relationship. Regrettably, the unwillingness of the Federal Government to recognise GLBT relationships in law has negative implications for GLBT relationships that encounter aged care service providers. This can and has included: absence of diversity training among staff and other residents that recognises and respects GLBT relationships the failure of forms to recognise GLBTI relationships an unwillingness to make provision for same sex couples in aged care facilities, for example with shared live-in space absence of acknowledgment of a visiting partner   SHAPE \* MERGEFORMAT  Child support The purpose of child support is to ensure that in the event of a breakdown in a relationship between two parents, the children from that relationship continue to receive adequate financial support from both parents. The legislation governing child support is the Child Support (Assessment) Act 1989 (Cth). Under section 5 of the Act, a parent is taken to either be the biological parent, adoptive parent, or where the child was born through artificial conception, the definition of parent under section 60H of the Family Law Act 1975 (Cth). I think kids do get attached to whatever family they have. The Government is thinking of the kids first, until it comes to children of same sex families. -Sarah, Parramatta None of these categories apply to co-parents and step-parents in same-sex relationships, which means that if a child remains with their biological parent following the breakdown of the relationship, child support cannot be sought from the co-parent under the Act. However, where the child lives with the co-parent, they are able to gain financial support from the biological parent.  Access to family court/family law All matters regarding children at the breakdown of a relationship are heard by the Family Court. However, unmarried couples disputes about property dissolution fall under state jurisdiction, so that they are forced to use Family Court for disputes over children and state courts for matters relating to property resolution. Over the past few years most states have referred their power over property and de facto couples, both heterosexual and same-sex, to the Federal Government. In response the Federal Government has drafted legislation that will accept the referral of power but only in relation to heterosexual de facto couples. This arbitrary and discriminatory decision will mean that same-sex couples, and their children, will continue to face the financial and emotional burden of having to go through two separate court processes if their relationship breaks down. What rights does the partner of the legal parent have if the unimaginable happens such as separation or death? The partner has little legal right to continue to care for their child and no rights to visitation. Turn the tables and if the partner dies the parent has no rights to superannuation or other benefits that are recognized to married couples. How do we provide for the child's needs? Juliet, Bathurst  Bankruptcy Under section 5 of the Bankruptcy Act 1966 (Cth), a de facto spouse is defined, in relation to a person, as an individual of the opposite sex with whom that person is living with as a spouse on a bona fide domestic basis. Such a definition excludes same-sex relationships, which has ramifications in the event that one partner in a same-sex relationship becomes bankrupt.  Migration The GLRL notes that migration was not listed in the definition of laws regarding financial and employment-related entitlements and benefits in the inquirys terms of reference. The discrimination faced by same-sex couples under immigration law has significant financial and work-related implications for many people in same-sex relationships, and therefore we believe the inquiry should address the legislative discrimination that exists under the Migration Act and associated regulations. Interdependency Visas Migrating to Australia is regulated by the Migration Act 1958 (Cth). Under current migration law individuals in same sex relationships enjoy some, but not all, of the same rights as those in heterosexual relationships. Since 1991, an Australian citizen, permanent resident or eligible New Zealand citizen, can sponsor their lesbian or gay partners to migrate to Australia or stay permanently if they are already here through an interdependency visa. To be eligible the couple must: Both be over 18; Have a mutual commitment to a shared life to the exclusion of other interdependent relationships; Their relationship must be genuine and continuing; They must have lived together for 12 months and must not be living apart on a permanent basis. There are some grounds under which this can be waived (Migration Regulations r.1.09A). While the law in this area allows for migration this is also limited politically by annual quotas which can go up or down. In recent years they have declined. To be granted permanent residency individuals must meet health and character criteria. HIV positive applicants can apply but would not meet the health criteria and would have to apply for the health criteria to be waived. The department may overlook a failure to pass the health test if the cost to the community is not undue. They estimate the cost of a persons health in order to determine this. Family Unit Following amendments to the Migration Regulations on 1 June 2006, same-sex partners are now recognised as members of the family unit for the purpose of temporary long stay work visas. This means that highly-skilled migrants and their partners are able to live in Australia for up to 4 years. However, recognition of same-sex relationships as a family unit has not been extended to other visa categories, which means that after the temporary visa expires, the same-sex partner is not able to be counted as part of the partners application for permanent residency.  Privacy Act The collection, use, disclosure, quality and security of personal information is regulated by the Privacy Act 1988 (Cth). The eleven Information Privacy Principles regulate the use of your personal information by the federal and ACT government agencies. The ten National Privacy Principles protect your personal information, regulating private organisations (including some small businesses) and health providers. The federal Privacy Act gives you rights to access and correct personal information about you. You also have the right to make a complaint if you think your personal information has been mishandled. Under subclause 2.4 of the National Privacy Principles, in the event that an individual is incapacitated, a health service provider may provide private information about that person to a number of different responsible persons, including that persons spouse or de facto spouse. While the Privacy Act 1988 (Cth) does not define either spouse or de facto, precedent from other federal legislation would suggest that these categories do not apply to same-sex relationships.  Insurance The regulation of the insurance industry is the sole domain of the federal government. No state legislation, including anti-discrimination legislation, can control the insurance industrys activities. Therefore, as no federal anti-discrimination legislation exists to prohibit discrimination on the basis of sexuality and no state legislation can be used the insurance industry cannot be challenged if it discriminates against lesbians or gay men in the provision of insurance services. My health insurance offers a couple-rate to a same sex partner but not all of them do and they dont have to I want legislation making some clear kind of decision about this, because a lot of the anxiety comes from not knowing where you are going [and how you will be treated]. If I walk through this door, can I know that my relationship will be recognised? Melissa, Wollongong The health insurance industry is governed under the commonwealth law by the National Health Act 1953 (Cth), and Medibank Private is regulated by the Health Insurance Commission Act 1973 (Cth). It is standard industry practice for health insurers to offer discounted cover for families. Under both acts, it is left open to the insurers to define what family means. Whilst some private health insurers do recognise lesbian and gay families for this purpose, no federal anti-discrimination legislation exists to protect same-sex families from discrimination in regards to their private health insurance.  SHAPE \* MERGEFORMAT  NSW State law In 1999, New South Wales introduced legislation to give gay and lesbian de facto relationships the same status under law as heterosexual relationships. Subsequent amendments were introduced in 2002 and 2003 to widen the scope of the earlier reforms. This means that same-sex de facto couples in NSW have equal rights and entitlements in areas such as: guardianship inheritance accident compensation stamp duty property disputes decision making in illness and death However, this introduction of equality has not been extended to gay and lesbian families. Recent surveys have shown that over 20% of lesbians and 10% of gay men are already parents, and that more want to have children in the future. Yet, same-sex parents and families are not properly recognised under NSW law. The two principal acts, the Adoption Act 2000 (NSW) and the Status of 鱨վ Act 1996 (NSW), do not recognise same-sex de facto couples so that if they take on a parental role, the relationship between a non-biological parent in a same-sex relationship and their children is not legally recognised in NSW. This lack of recognition affects both the child and the family as a whole in a number of important areas, such as: parental authority (over medical and school issues) inheritance child support and; contact and residence Adoption Act Under the Adoption Act 2000 (NSW) people in same-sex relationships are not able to jointly adopt, and the partner of a biological parent is not able to be legally recognised as a step-parent where they take on that parental role. This is to due to the definition of a couple contained within the Act, which is limited to a man and a woman who are either married or in a de facto relationship. My partner and I tried to have a child. We were mapping things out with the donor. Even though I knew Id never be the legal mother of the child, it was very upsetting to know that I couldnt adopt our child. So my main gripe is with parenting rights. - Anonymous, Blue Mountains The primary objective of the Act is to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice. The current definition of de facto partner in the Act which excludes same-sex partners from being recognised as step-parents when they are in that position means that the best interests of children in same-sex parent families are not being met as their relationship with their non-biological parent is not legally recognised. The ban on same-sex couples from undertaking unknown adoption in NSW is undermined by the widespread use of same-sex couples as foster parents. If these couples are able to provide short-term support and care for children, there is no basis to deny them the right to provide the same care support for the childs life.  Status of 鱨վ Act Parental rights under NSW law differ significantly depending on whether a child is conceived using donor insemination. If a child is conceived in this manner, then the biological father has no parental rights regarding the child. At the time of conception if the mother has a male partner, de facto, or husband (who is not the biological father), then New South Wales law deems him to be the childs father for all legal purposes. Whereas if the mother has a female partner or de facto at the time of conception (the co-mother), this person is not considered to have any parental rights and is not considered to be the co-mother of the child. Amending the Status of 鱨վ Act 1996 (NSW) will simply be extending formal equality to female partners of mothers having children. Many lesbians have children through formal and informal arrangements such as fertility clinics and donor insemination. However, if a lesbian couple wants to have a baby through donor insemination, only the biological mother is recognised as a legal parent. With very few exceptions, the co-mother does not have a legally recognised relationship with the child under NSW law. This is the case even if the co-mother is the main carer of the child.  SHAPE \* MERGEFORMAT  Parental leave Under the Industrial Relations Act 1996 (NSW), an employee covered by the NSW Industrial Relations system is entitled to a total of 52 weeks unpaid  HYPERLINK "http://www.austlii.edu.au/au/legis/nsw/consol_act/ira1996242/s55.html" \l "parental_leave" parental leave in connection with the birth or adoption of a child. The lack of recognition of same-sex parent families under NSW state law means that a non-biological parent (in the case of birth through ART) and the non-adopting parent (in the case of adoption) is not entitled to parental leave under the Act. Under s55 of the Act, parental leave is defined to include maternity leave, paternity leave or adoption leave. Maternity leave is available to a female employee who has given birth to a child for an unbroken period of leave. Paternity leave is available to a male employee in connection with the birth of his child or the child of his spouse, and consists of one week at the time of birth, and can be extended for an unbroken period of time if the male employee becomes the primary care-giver. Whilst a women in a same-sex relationship who gives birth to a child is entitled to maternity leave her partner, as the co-parent, is excluded from both maternity and paternity leave. This significantly limits the ability of co-parents who are covered under the Act as employees from taking on the role as primary care-giver. Lesbian co-parents are made to choose between leaving their employment to take on the primary care-giver role, or give up the opportunity all-together.  SHAPE \* MERGEFORMAT  Recommendations Summary Amend the definition of spouse under sections 240 and 243 of the Workplace Relations Act 1996 (Cth) to include same-sex relationships as de facto relationships. Amend the definition of member of a couple under section 4 of the Social Security Act 1991 (Cth) to include same-sex relationships by removing the requirement that the applicant must be in a relationship with a person of the opposite sex. Amend the definition of YA couple under section 1067C of the Social Security Act 1991 (Cth) to include same-sex relationships by removing the requirement that the applicant must be in a relationship with a person of the opposite sex. Commencement of such changes to the Social Security Act 1991 (Cth) should take place following a phase in period to allow for people affected to make necessary financial adjustments. Amend the definition of spouse under s6 of the Income Tax Assessment Act 1936 (Cth) to include same-sex relationships. Amend the definition of spouse under s995-1 of the Income Tax Assessment Act 1997 (Cth) to include same-sex relationships. Amend the definition of family under section 10AA of the Health Insurance Act 1973 (Cth) to include same-sex de facto couples. Amend the definition of de facto spouse under section 84B of the National Health Act 1953 (Cth) to include same-sex couples. Amend the statutes governing the following schemes to recognise same-sex relationships under the definition of spouse: Commonwealth Superannuation Scheme (CSS) Public Sector Superannuation Scheme (PSS) The PSS Accumulation Plan (PSSap) Military Benefits and Superannuation Scheme (MSBS) Defence Forces Retirement & Death Benefits Scheme (DFRDB) Parliamentary Contributory Superannuation Scheme Amend the definition of spouse under s159TC of the income Tax Assessment Act 1936 (Cth) to include same-sex relationships. Amend the definition of spouse under Division 6.7 of the SIS Regulations to include same-sex relationships. Amend the definition of dependant under section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to include same-sex relationships. Amend the Defence Force Retirement and Death Benefits Act 1973 (Cth), Veterans Entitlements Act 1986 (Cth), the Defence Force (Home Loans Assistance) Act 1990 (Cth) and other legislation relating to defence and veterans affairs, to include same-sex relationships under the definition of spouse. Expand the criteria for eligible relationships under section 4AB of Judges Pension Act 1968 (Cth) to include same-sex relationships. Expand the criteria for eligible relationships under section 4B and 4C of the Parliamentary Contributory Superannuation Act 1948 (Cth) to include same-sex relationships. Amend section 44.11 of the Aged Care Act 1997 (Cth) to include same-sex relationships under the definition of member of a couple. Amend the definition of parent under the Child Support (Assessment) Act 1989 (Cth) to include co-parents and step-parents in same-sex relationships. Amend the Family Law Act 1975 (Cth) to allow same-sex relationships and families to use the Family Court in the same way as opposite-sex parent families. Amend the definition of de facto spouse under section 5 of the Bankruptcy Act 1966 (Cth) to include same-sex de facto couples. Amend the Migration Act 1958 (Cth) and associated categories so that same-sex relationships and same-sex parent families are recognised as a family unit for all applicable visa categories. Amend the Privacy Act 1988 (Cth) to include a definition of spouse that includes same-sex relationships. Enact a federal Sexuality Discrimination Bill to ensure that people in same-sex relationships and GLBT people are covered under federal anti-discrimination law. Amend the Adoption Act 2000 (NSW) to make the definition of de facto partner gender neutral. Amend the Adoption Act 2000 (NSW) to allow for co-parent adoption, where there exists only one legal parent, or a second legal parent who is consenting. Amend section 14 of the Status of 鱨վ Act 1996 (NSW) to make the definition of de facto partner gender neutral. Amend the corresponding presumption under section 60H of the Family Law Act 1975 (Cth) to make the definition gender neutral. Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that co-mothers of donor-insemination children can be listed as the second parent on the birth certificates. Amend s55 of the Industrial Relations Act 1996 (NSW) to allow for lesbian co-parents to access parental leave following the birth of the child of their same-sex spouse. References     PAGE  PAGE 18  INCLUDEPICTURE "http://www.glrl.org.au/Print_Standards/hor_col.gif" \* MERGEFORMATINET   Parliamentary Library, Department of Parliamentary Services (2004) Same-sex couples by Commonwealth Electoral Division, Research Note No.61, 15 June 2004  See www.secular.org.au/news.html  See N.Berg, D.Lien (2001) Meausring the Effect of Sexual Orientation on income: Evidence of Discrimination?, School of Social Sciences, Univeristy of Texas  Attorney Generals Department of NSW (2003) You Shouldnt Have to Hide to Be Safe: A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in NSW  M.Pitts, A.Smith, A.Mitchell, S.Patel (2006) Private Lives: A Report on the Health and Wellbeing of GLBTI Australians, Australian Research Centre in Sex, Health and Society, La Trobe University, Melbourne  Anti-Terrorism Act (No.2) 2005 (Cth), s105.35(3)  See Migration Act 1958(Cth), Superannuation Industry (Supervision) Act 1991 (Cth)  See Gay and Lesbian Rights Lobbys 2002 Paper The Pink Ceiling is Too Low Workplace Experiences of Lesbians, Gay Men and Transgender People  Social Security Act 1991 (Cth), s4  Health Insurance Act 1953(Cth), s10AA(7)  Income Tax Assessment Act 1936 (Cth), s159TC  Workers Compensation Act 1997 (NSW), s25,26  Workers Compensation Act 1997 (NSW), s37(1)(b)  Safety, Rehabilitation and Compensation Act 1998 (Cth), s17.  Judges Pension Act 1968 (Cth), ss7-9  Aged Care Act 1997 (Cth), s44.11  The Property (Relationships) Act 1999 (NSW)  Meet the Parents, Jenni Millbank & GLRL, 2002. Adoption Act 200 (NSW), s7a  Status of 鱨վ Act 1996 (NSW), s14  Industrial Relations Act 1996 (NSW), s54  Industrial Relations Act 1996 (NSW), s55 (2)  Industrial Relations Act 1996 (NSW), s55 (3) Recommendation Expand the criteria for eligible relationships under section 4AB of Judges Pension Act 1968 (Cth) to include same-sex relationships. Recommendation Amend the definition of member of a couple under section 4 of the Social Security Act 1991 (Cth) to include same-sex relationships by removing the requirement that the applicant must be in a relationship with a person of the opposite sex. Amend the definition of YA couple under section 1067C of the Social Security Act 1991 (Cth) to include same-sex relationships by removing the requirement that the applicant must be in a relationship with a person of the opposite sex. Commencement of such changes to the Social Security Act 1991 (Cth) should take place following a phase in period to allow for people affected to make necessary financial adjustments. Recommendation Expand the criteria for eligible relationships under section 4B and 4C of the Parliamentary Contributory Superannuation Act 1948 (Cth) to include same-sex relationships. Recommendation Amend the definition of spouse under sections 240 and 243 of the Workplace Relations Act 1996 (Cth) to include same-sex relationships as de facto relationships Recommendation Amend section 44.11 of the Aged Care Act 1997 (Cth) to include same-sex relationships under the definition of member of a couple. Recommendation Amend s55 of the Industrial Relations Act 1996 (NSW) to allow for lesbian co-parents to access parental leave following the birth of the child of their same-sex spouse. Recommendation Amend the definition of spouse under s6 of the Income Tax Assessment Act 1936 (Cth) to include same-sex relationships Amend the definition of spouse under s995-1 of the Income Tax Assessment Act 1997 (Cth) to include same-sex relationships Recommendation Amend the definition of spouse under s6 of the Income Tax Assessment Act 1936 (Cth) to include same-sex relationships Recommendation Amend section 14 of the Status of 鱨վ Act 1996 (NSW) to make the definition of de facto partner gender neutral. Amend the corresponding presumption under section 60H of the Family Law Act 1975 (Cth) to make the definition gender neutral. Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that co-mothers of donor-insemination children can be listed as the second parent on the birth certificates. Recommendation Amend the definition of parent under the Child Support (Assessment) Act 1989 (Cth) to include co-parents and step-parents in same-sex relationships. Recommendation Enact a federal Sexuality Discrimination Bill to ensure that people in same-sex relationships and GLBT people are covered under federal anti-discrimination law. Recommendation Amend the Adoption Act 2000 (NSW) to make the definition of de facto partner gender neutral. Amend the Adoption Act 2000 (NSW) to allow for co-parent adoption, where there exists only one legal parent, or a second legal parent who is consenting. Recommendation Amend the definition of dependant under section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to include same-sex relationships Recommendation Amend the definition of family under section 10AA of the Health Insurance Act 1973 (Cth) to include same-sex de facto couples Recommendation Amend the definition of de facto spouse under section 84B of the National Health Act 1953 (Cth) to include same-sex couples. Recommendation Amend the definition of de facto spouse under section 5 of the Bankruptcy Act 1966 (Cth) to include same-sex de facto couples. Recommendation Amend the Family Law Act 1975 (Cth) to allow same-sex relationships and families to use the Family Court in the same way as opposite-sex parent families. Recommendation Amend the Migration Act 1958 (Cth) and associated categories so that same-sex relationships and same-sex parent families are recognised as a family unit for all applicable visa categories. Recommendation Amend the Privacy Act 1988 (Cth) to include a definition of spouse that includes same-sex relationships. Recommendation Amend the statutes governing the following schemes to recognise same-sex relationships under the definition of spouse: Commonwealth Superannuation Scheme (CSS) Public Sector Superannuation Scheme (PSS) The PSS Accumulation Plan (PSSap) Military Benefits and Superannuation Scheme (MSBS) Defence Forces Retirement & Death Benefits Scheme (DFRDB) Parliamentary Contributory Superannuation Scheme Recommendation Amend the definition of spouse under s159TC of the income Tax Assessment Act 1936 (Cth) to include same-sex relationships. Recommendation Amend the definition of spouse under Division 6.7 of the SIS Regulations to include same-sex relationships Recommendation Amend the Defence Force Retirement and Death Benefits Act 1973 (Cth), Veterans Entitlements Act 1986 (Cth), the Defence Force (Home Loans Assistance) Act 1990 (Cth) and other legislation relating to defence and veterans affairs, to include same-sex relationships under the definition of spouse. #* + , - . 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