Same-sex reforms

Overview of the Australian Government's same-sex law reforms

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 sexual orientation.

Following the Australian Human Rights Commission's report Same-Sex: Same Entitlements and an audit of Commonwealth legislation in 2009.

85 Commonwealth laws were amended to eliminate discrimination against same-sex couples and their children.

These amendments aimed to remove discrimination to enable same-sex couples and their children to be recognised by Commonwealth law and enjoy the same entitlements as opposite-sex de facto couples and their children.

The reforms had a significant impact in the following areas:

Tax

  • Same-sex couples are able to access the same tax concessions available to married and opposite-sex de facto couples.
  • The amount of tax people are liable to pay may depend on whether they are (or were) in a relationship, or whether they have dependant children or relatives.
  • The reforms commenced on 1 July 2009.
  • For more information visit the Australian Taxation Office website.

Superannuation

These reforms allow private sector superannuation trustees to make same-sex couples and their children eligible for reversionary benefits.

Defined benefits superannuation

  • Death benefits can be conferred on same-sex partners and the children of same-sex relationships.
  • Prior to the reforms the same-sex partner of a beneficiary in a Commonwealth (defined benefit) superannuation scheme did not receive direct access to a reversionary death benefit.

Social security and family assistance

  • Same-sex couples are recognised as a couple for social security or family assistance purposes.
  • Consequently, a same-sex couple receives the same rate of social security and family assistance payments as an opposite-sex couple.
  • The reforms made to social security and family assistance also allow for the recognition of children of same-sex couples.
  • Before the reforms, same-sex couples were not recognised as a couple for social security or family assistance purposes. A person who had a same-sex de facto partner was treated as a single person.
  • For more information visit the Department of Human Services website.

Pharmaceutical Benefits Scheme Safety Net and the Medicare Safety Net

  • Same-sex couples and their dependant children are considered a family for the purposes of the Medicare or Pharmaceutical Benefits Scheme (PBS) safety nets as a family.
  • The changes to the Medicare and PBS safety nets commenced on 1 January 2009.
  • For more information in relation to the Medicare Safety Net visit the Department of Human Services website.
  • For more information in relation to the PBS Safety Net contact the PBS Information Line on 1800 020 613 or visit the Department of Health website.

Aged care

  • The aged care 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.
  • Same-sex couples are treated in the same way as opposite-sex couples in regards to these tests. This means a member of a same-sex couple is taken to have 50 per cent of the total value of the couple's income and assets. Additionally the value of the couple's home is excluded in the assets assessment if the person's partner or dependant 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.
  • A person who has a same-sex partner was previously treated as a single person under the aged care income and assets tests. Their partner's income and assets were disregarded. If their partner was still living in the couple's home, all, part, or none of the value of the home would have been 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 reforms in relation to aged care commenced on 1 July 2009.
  • The reforms resulted in some residents paying less and some paying more by way of income tested fees, as their partner's income was taken into consideration in the income test. If a resident's income tested fee increased, the level of the government subsidy paid on behalf of the resident decreased by a corresponding amount. Income testing continues to be undertaken while residents remain in care.
  • For more information call the Aged Care Information Line on 1800 500 853.
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Child support

  • Changes were made to the Child Support (Assessment) Act 1989 and Child Support (Registration & Collection) Act 1988 to recognise new parentage laws for same-sex couples. Where same-sex couples separate, they are 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 commenced on 1 July 2009.
  • Applications can be made even if the couple had children and separated before 1 July 2009.
  • For more information visit the Department of Human Services website.

Immigration

  • Same-sex couples and their children are members of the family unit for visa purposes, in the same way that spouses and opposite-sex de facto partners and their children are included as members of the family unit, following amendments to the Migration Regulations made under the Migration Act 1958
  • Same-sex partners of Australian citizens, Australian permanent residents and eligible New Zealand citizens are able to apply for the same partner visa as opposite-sex partners.
  • Reforms to the Immigration (Guardianship of Children) Act 1946 commenced on 15 March 2009. Reforms to the Migration Act 1958 and the Immigration (Education) Act 1971 commenced on 1 July 2009.
  • For more information visit the Department of Immigration and Border Protection website.

Citizenship

  • Same-sex couples have the same entitlements as opposite-sex couples. In particular, the same-sex partner of an Australian citizen is allowed 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 allowed 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 commenced on 15 March 2009. Prior to the reforms, same-sex and opposite-sex couples were treated differently under the Australian Citizenship Act 2007.
  • For more information visit the Department of Immigration and Border Protection website.

Veterans' affairs

  • The changes in relation to veterans' affairs allow same-sex couples to access certain entitlements from which they were previously precluded.
  • The changes included the provision of assistance to members of the Defence Force to acquire homes; certain pensions and other benefits becoming available to same-sex partners widows or widowers; and other benefits, including death benefits, becoming available to the children of impaired or deceased Defence Force members or veterans.
  • For more information call the Department of Veterans' Affairs on 133 254.