Positive Life NSW

Lance Feeney on whether much needed recognition of same-sex relationships may cause hardship

On Thursday 4th September 2008, Attorney–General, Robert McClelland, moved the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 in the Parliament of Australia. (Read the Attorney Generals’ full speech to Parliament here).


The bill amends 68 Commonwealth laws that discriminate against same-sex couples and their children. Nineteen government departments were involved in drafting the bill.

A milestone for gay and lesbian couples

This Act marks yet another step in a hard fought political process going back decades – the first achievement being 20 years ago, when the Human Rights and Equal Opportunity Commission (HREOC) added discrimination on the grounds of ‘sexual preference’ to its regulations. In 2004, the United Nations Human Rights Committee, found that Australia was in breach of the International Covenant on Civil and Political Rights, and more recently, HREOC released its report ‘Same-sex: same entitlements’. This report identified many examples of discrimination and the impact of discriminatory laws on same-sex Australians including:

• Same-sex couples experience daily systemic discrimination
• Same-sex couples and their families are denied basic financial and work entitlements which opposite-sex couples and their families take for granted
• Same-sex couples are not guaranteed the right to take carer’s leave to look after a sick partner
• Same-sex couples have to spend more money on medical expenses than opposite-sex couples to enjoy the Medicare and PBS safety nets
• Same-sex couples are denied a wide range of tax concessions available to opposite-sex couples
• The same-sex partner of a Defence Force veteran is denied a range of pensions and concessions available to an opposite-sex partner.

At every step along the way, community organisations including Positive Life, ACON, the Gay and Lesbian Right Lobby, Human Rights Commission (formally HREOC) and others, have lobbied, written submissions to government and appeared before Senate Committees to plead our collective case for equality before the law and an end to discriminatory treatment.

This bill aims to remove discrimination against same-sex couples and their children in many of the ways identified by the Human Rights Commission and the federal government audit. The bill includes a new definition of de facto partnerships and will apply whether the parties are of the same or different sex. The definition will also recognise relationships registered under prescribed state and territory relationship registration schemes. The bill does not recognise interdependent relationships (and Positive Life NSW agrees).

The Senate Legal and Constitutional Affairs Committee are inquiring into the provisions of the bill and Positive Life NSW has been working with ACON, AFAO and the gay and Lesbian Rights Lobby, to present a unified and coordinated approach, when responding to the enquiry.

In our written submission to the Senate Committee, Positive Life unequivocally supports the intent of the Same-Sex Relationships – General Law Reform Bill 2008 and the Same-Sex Relationships – Superannuation Bill 2008. We believe that the benefits to gay men and lesbians of recognition of relationships, and the removal of financial and other penalties will be significant. Hopefully, young gay men and lesbians will be some of the early beneficiaries of these legislative changes and their mental health and suicide risks will improve. For older gay people, the impact may take longer to flow through. It will be balanced by more immediate concerns about changing income, and possible loss of eligibility for health care and other concessions due to their partners’ income and assets.

Our concerns with the legislation

Our principle concern is to minimise the impact of any financial hardship experienced with the implementation of these changes. For older gay men who live with a partner, this will be activated by the application and impact of rules relating to cohabitation. Additionally, older gay couples may have limited ability to change their financial situation.

We contend that there will be a number of gay men living with HIV in relationships who will be negatively impacted by the changes. This is particularly true for people with HIV who rely on the Aged, Disability or Carer’s Pension and other concessional benefits such as the Health Care Concession Card.

Where both partners are receiving a Disability Support Pension, the payment will be adjusted from the rate paid to singles, to the rate paid for a couple - a loss of over $160 per fortnight in couple income.

Where one partner is receiving the DSP and the other partner is working, eligibility for a number of pensions under the Social Security Act are subject to incomer and asset testing,

The income and assists of the working partner may significantly impact on the eligibility and rate of pension and entitlements payable to the non-working partner.

We have drawn attention to these issues and asked for any negative impacts to be addressed by relevant Government Departments during the implementation process.

What we propose

Positive Life NSW made the following recommendations to the enquiry in our written submission:

1. Commission a social impact study to assess any financial hardship as a result of the legislative changes and to help government departments implement policy sensitively.
2. Delay implementation of changes with negative financial impact to July 2010, allowing couples to better prepare their personal situation.
3. Inform people (via a communication strategy) about the changes resulting from relationship recognition, including support to couples negatively impacted.
4. Provide an amnesty period for people negatively impacted by the changes to allow them to report in their personal situation to Government departments (such as Centrelink) without fear of punitive actions and/or debt accrual.
5. Ensure that any implementation of the changes by government allows discretion to be applied where evidence of hardship can be established.

Same-sex relationship recognition has brought many benefits including recognition for our demand for equality, and with it access to the legal and economic benefits afforded to opposite-sex couples. Equality however may have its costs for some, particularly in relation to people with HIV where one or both people receive a Centrelink benefit and rely on the assistance provided by a Health Care Concession Card. By advocating on behalf of same-sex couples living with HIV, we hope to ensure welcome changes to legislation don’t cause undue hardship to those most vulnerable to a change in or loss of income.

If you would like to discuss this issue or any aspect of our advocacy work, please contact:

Lance Feeney
Systemic Advocacy
Positive Life NSW
Phone (02) 9361 6011
Email: lancef@positivelife.org.au

To read our submission go to www.positivelife.org.au/advocacy and click on submissions.