Overview of the Australian Government's Same-Sex Law Reforms

(taken from Attorney General's Department http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_SameSexReform)

The Australian Government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexuality.

Following the Australian Human Rights Commission’s report, Same-Sex: Same Entitlements and an audit of Commonwealth legislation, the Australian Government has introduced reforms to remove discrimination to enable same-sex couples and their children to be recognised by Commonwealth law.

The reforms aim to ensure that same-sex couples and their families are recognised and have the same entitlements as opposite-sex de facto couples.

As a result of ensuring that  same-sex couples receive the same treatment as opposite-sex de facto couples, the reforms may also impose burdens on some same-sex couples or reduce certain benefits they currently receive.

It is the Government’s view that these reforms are necessary and an essential step towards a fairer and more just society.

The reforms amend 84 Commonwealth laws to eliminate discrimination against samesex couples and their children in a wide range of areas, including social security, taxation, Medicare, veteran’s affairs, workers’ compensation, educational assistance, superannuation, family law and child support.

The reforms will have a significant impact in the following areas:

• Taxation
• Superannuation
• Defined Benefits Superannuation
• Social Security and Family Assistance
• PBS Safety Net and the Medicare Safety Net
• Aged Care
• Child Support
• Immigration
• Citizenship
• Veterans’ Affairs

Taxation

• The amount of tax people are liable to pay may depend on whether they are (or were) in a relationship, or whether they have dependent children or relatives.
• The reforms will ensure that same-sex couples are able to access the same tax concessions available to married and oppositesex de facto couples.
• The reforms in relation to taxation will commence on 1 July 2009.

Superannuation

• Another major reform is in the area of superannuation.
• These reforms will allow private sector superannuation trustees to make same-sex partners and their child eligible for reversionary benefits.

Defined Benefits Superannuation

• Currently the same-sex partner of a beneficiary in a Commonwealth (defined benefit) superannuation scheme does not get any direct access to a reversionary death benefit.
• The changes will enable death benefits to be conferred on same-sex de facto partners and children of a same-sex relationship.

Social Security and Family Assistance

• Same-sex couples are not currently recognised for social security or family assistance purposes. A person who has a same-sex de facto partner is currently treated as a single person.
• The reforms will ensure that same-sex de facto couples are recognised as couples. This means that a same-sex couple will receive the same rate of social security and family assistance payments as an opposite-sex couple. Reforms relating to social security and family assistance will also allow for the recognition of children of same-sex couples.
• The social security and family assistance reforms will commence on 1 July 2009.

PBS Safety Net and the Medicare Safety Net

• In the past, same sex couples could not access the Medicare or Pharmaceutical Benefits Scheme (PBS) safety nets as a family.
• Amendments to the Health Insurance Act 1973 will allow same sex partners and their dependent children to register as a family for the purposes of the Medicare safety nets.
• Amendments to the National Health Act 1953 will allow same sex partners and their dependent children to access the PBS safety net as a family.
• The changes to the Medicare and PBS safety nets will commence on 1 January 2009.

Aged Care

• A person who has a same-sex partner is currently treated as a single person under the aged care income and assets tests. Their partner’s income and assets are disregarded. If their partner is still living in the couple’s home, all, part, or none of the value of the home may be included in the assets assessment, depending on each partner’s share in the ownership of the home, and whether the partner is a carer receiving an income support payment.
• The income test determines whether a person is eligible to pay an income tested fee and, if so, the amount of fee that is payable. The assets test determines whether a person is eligible to pay an accommodation bond or accommodation charge, and, if so, the maximum amount of bond or charge that is payable.
• Under the reforms same-sex couples will be treated in the same way as opposite-sex couples. This means that a member of a same-sex couple will be taken to have 50% of the total value of the couple’s income and assets. It will also mean that the value of the couple’s home will be excluded in the assets assessment if the person’s partner or dependent child is still living in the home, or if a child of the couple, who is eligible to receive an income support payment, has lived in the home for the past five years. This could lower the accommodation costs paid by aged care residents and increase the level of Government subsidy paid to homes on behalf of some residents.
• The reforms will result in some current and future residents paying less and some paying more, by way of income tested fees, as their partner’s income will taken into consideration in the income test. If a resident's income tested fee is increased, the level of the Government subsidy paid on behalf of the resident will decrease by a corresponding amount.
• The reforms will also mean that some members of same-sex couples who first enter permanent residential aged care on or after 1 July 2009 will pay a higher accommodation bond or charge. The accommodation payments for members of samesex couples who enter care before 1 July 2009, will not be affected by the reforms.
• The reforms in relation to aged care will start on 1 July 2009.

Child Support

• Changes are being made to the Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988 to recognise the new parentage laws for samesex couples. Where same sex couples separate, they will be able to apply for child support. Decisions on parentage will be based on the changes to the Family Law Act 1975.
• The reforms in relation to child support will start on 1 July 2009.
• Applications can be made from 1 July 2009 onwards, even if the couple had children and separated before 1 July.

Immigration

• Changes were made to the Migration Act 1958.
• Changes will be made to the Migration Regulations made under the Migration Act 1958. This will mean that same-sex partners and their children will be ‘members of the family unit’ for visa purposes, in the same way that spouses and opposite-sex de facto partners and their children are currently included as members of the family unit.
• Same-sex partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens will be able to apply for the same partner visa as opposite-sex partners.
• Children of opposite-sex and same-sex partners will be included as members of the family unit of the primary visa applicant.
• The start dates of the reforms in relation to immigration laws will be staggered. Reforms to the Immigration (Guardianship of Children) Act 1946 will commence on 15 March 2009. Reforms to the Migration Act 1958 and the Immigration (Education) Act 1971 will commence on and 1 July 2009.

Citizenship

• Currently, same-sex and opposite-sex couples are treated differently under the Australian Citizenship Act 2007.
• The reforms will mean that same-sex couples have the same entitlements as opposite-sex couples. In particular, this will allow the same-sex partner of an Australian citizen to count a period of time spent outside Australia as a period of time spent in Australia for the purposes of meeting the requirements for citizenship by conferral.
• Reforms also allow for the recognition of children of same-sex and opposite-sex de facto couples where artificial conception procedures have been used, or where approved surrogacy arrangements have been entered into.
• The reforms in relation to citizenship will commence on 15 March 2009.

Veterans’ Affairs

• The changes in relation to veterans’ affairs will allow same-sex couples to access certain entitlements from which they were previously precluded.
• The changes include the provision of assistance to members of the Defence Force to acquire homes; certain pensions and other benefits becoming available to same-sex partners or widows/ers; and other benefits, including death benefits, becoming available to the children of impaired or deceased Defence Force members or veterans.
• Further details will be available on the Department of Veterans' Affairs website shortly.