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 sexuality.

Following the Australian Human Rights Commission's report Same-Sex: Same Entitlements and an audit of Commonwealth legislation, in 2009 the former Australian Government introduced several reforms.

The reforms amend eighty-five Commonwealth laws to eliminate discrimination against same-sex couples and their children in a wide range of areas.

They aim to remove discrimination to enable same-sex couples and their children to be recognised by Commonwealth law.

They also ensure that same-sex couples and their families are recognised and have the same entitlements as opposite-sex de facto couples.

The reforms have a significant impact in the following areas:

All of the changes have now taken effect. The legislation passed by Parliament to implement these reforms is available online:

Tax

  • The reforms in relation to tax commenced on 1 July 2009.
  • 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 will ensure that same-sex couples are able to access the same tax concessions available to married and opposite-sex de facto couples.
  • 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

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

Social security and family assistance

  • The social security and family assistance reforms commenced on 1 July 2009.
  • Same-sex couples were not previously 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.
  • The reforms ensure that same-sex couples are recognised as a couple. Consequently, a same-sex couple will receive 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.
  • For more information visit the Department of Human Services website.

Pharmaceutical Benefits Scheme safety net and the Medicare safety net

  • The changes to the Medicare and PBS safety nets commenced on 1 January 2009.
  • Previously, 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 enable same-sex couples and their dependant children to be recognised as a family for the purposes of the Medicare safety net.
  • Amendments to the National Health Act 1953 allow same-sex couples and their dependant children to access the PBS safety net as a family.
  • 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 reforms in relation to aged care commenced on 1 July 2009.
  • 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 were 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 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 per cent 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 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.
  • 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. Income testing continues to be undertaken while residents remain in care.
  • 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 may pay a higher accommodation bond or charge.
  • Generally, accommodation bonds and charges for members of same-sex couples who enter care before 1 July 2009 will not be affected by the reforms. However, if a resident moves to a different aged care home and has another assets assessment, the reforms may affect the amount of their bond or charge
  • For more information call the Aged Care Information Line on 1800 500 853.

Child support

  • The reforms in relation to child support commenced on 1 July 2009.
  • Changes have been made to the Child Support (Assessment) Act 1989 and Child Support (Registration & Collection) Act 1988 to recognise the new parentage laws for same-sex 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.
  • Applications can be made from 1 July 2009 onwards, even if the couple had children and separated before 1 July 2009.
  • For more information visit the Department of Human Services website.

Immigration

  • The start dates of reforms to immigration laws have been staggered. 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.
  • Changes will be made to the Migration Regulations made under the Migration Act 1958. This will mean that same-sex couples 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 couples will be included as members of the family unit of the primary visa applicant.
  • For more information visit the Department of Immigration and Border Protection website.

Citizenship

  • The reforms in relation to citizenship commenced on 15 March 2009.
  • Previously, same-sex and opposite-sex couples have been treated differently under the Australian Citizenship Act 2007.
  • The reforms 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.
  • 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 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 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 133 254.