In 2008 the Federal Government changed 85 different laws so that same-sex couples would be recognised as having many of the same rights and obligations as different-sex defacto couples.
These new reforms mean that a range of new rights have been introduced for anyone who works for the Australian Federal Government. This includes members of the Australian Defence Force, Australian Federal Police, public servants of all federal government departments and federal government authorities, members of Federal Parliament and members of the federal judiciary.
~Public Office:
•If you are a member of the Australian Defence Force, your same-sex partner may now be recognised by the Department of Veterans’ Affairs and the Defence Department.
•If your partner passes away and was a member of the Australian Defence Force, you and your children may be able to receive a benefit under the Defence Force Retirement Benefits Fund, the Defence Force Retirement and Death Benefits Scheme or the Military Superannuation and Benefits Scheme. You may also be able to access housing benefits, such as having home loan subsidies transferred to you.
•If your partner is a member of the Defence Force and they are injured during service, you and any members of your family, including 'stepchildren' and 'step-parents', may now be considered when calculating compensation and benefit amounts.
•If you are a member of the Defence Force, your same-sex partner may now be eligible for accommodation assistance,
•If you work in the public sector and are injured while working, your same-sex partner and their family may be recognised when determining compensation that your family may be eligible for.
•If you and your same-sex partner work for a national system employer, you and your partner may be able to apply for an extended period of parental leave if you have children.
•If someone who is employed as a Federal Magistrate, a Family Court Justice, a Federal Court Justice, Governor General, Solicitor General or High Court Justice passes away, their same-sex partner and children may now receive death benefit payments. The same applies to Presidential Members of the Administrative Appeals Tribunal and the Australian Industrial Relations Commission, and to the President of Fair Work Australia.
•If your same-sex partner passes away while they are working as a Federal judge, you may now be able to receive any long leave payments they have earned.
•When a Justice of the High Court, or certain other Justices of federal courts, has to travel for work, their same-sex partner is now taken into account when deciding travel allowances.
•Some people who have held public offices are ‘Life Gold Pass Holders’ (e.g. former Prime Ministers, Senators or Members of Parliament). If your same-sex partner is one of them, you may now be able to receive benefits such as domestic travel remunerations.
~Parenting:
•A member of a same-sex couple is now eligible to receive child support from their partner if their relationship breaks down. More information about this can be found in the social security factsheet or from the Child Support Agency.
•A member of a same-sex couple who was previously not recognised as the parent of a child and sought parenting orders from the federal family courts (Family Court of Australia and Federal Magistrates Court), for example in relation to who a child lives with or spends time with, may now be recognised as a parent of the child. You should consult a legal professional if you wish to understand the implications of these reforms.
•If your same-sex partner dies, you and your child/ren can now get the same benefits from superannuation as other families.
•Extended family members of both parents are now legally recognised as family members of your child/ren. For example, if you are not biologically related to the child/ren but are considered the child/ren’s parent because your partner gives birth to them, your mother will be legally recognised as your child’s grandmother.
•Your child/ren are now included as part of your family, so now you can access family benefits under the Medicare Safety Net and the Pharmaceutical Benefits Scheme.
•The tax you may have to pay, benefits you access and the information necessary when filling in your tax return may change as the Australian Taxation Office now recognises same-sex de facto relationships and their child/ren. See more information on our Financial factsheet.
•Both you and your partner are able to sign a memorandum of understanding if you need to get witness protection for your child, no matter who is biologically related to the child.
•Same-sex couples, and their child/ren are now recognised by the Australian Customs and Border Protection Service as a family for the purposes of calculating your tax-free duty allowances.
•Your de facto partner is now consulted and is allowed to give consent to dealing with excess embryos after an IVF procedure.
•Same-sex families are now protected from discrimination on grounds of 'family responsibilities', by the Sex Discrimination Act 1984. (Please note that there is no protection from “marital status” discrimination or equivalent at this time.)
•Your family is now considered when courts are working out if there’s a risk of personal harm or property damage to a witness’ family before publishing court proceedings concerning a person apprehended and brought before a Magistrate under an interstate warrant, or a review of such proceedings.
~Workplace:
•The Fair Work Act includes same-sex families recognised under the Family Law Act 1975 (Cth). This means that most lesbian mums and some gay dads will have their extended family recognised as a “near relative” when they seek to access compassionate and carer’s leave. All same-sex couples in a registered relationship or de facto relationship will also be eligible for such leave.
•You may take carer’s leave if your de facto partner or a member of their immediate family is suffering from a personal illness, injury or unexpected emergency. An employee is entitled to up to 10 days of paid carer’s leave annually.
•You may take compassionate leave if your de facto partner or a member of their immediate family is suffering from a life-threatening illness, injury, or has died.
•Where they have 12 months’ continuous service with their employer, both members of a same-sex couple are entitled to unpaid parental leave when a new child is born or adopted. Generally, each eligible new parent can take a maximum of 12 months’ continuous unpaid parental leave where they have responsibility for the care of the child. However you may be able to apply to extend one parent’s leave by up to 12 months by using your partners parental leave allocation. An employer may only refuse this request on reasonable business grounds. • It is your responsibility to give your employer written notice at least 10 weeks before the leave will start to let them know that you will be taking unpaid parental leave.
•Same-sex couples and their children may now be included as family members when determining things such as costs related to injury or death of a seaman or the passing of property onto the seamen's family members.
•For seafaring employees who are injured in the course of their work, same-sex partners and their children may now be considered in calculating compensation for the death of the seafarer.
•For employees of Telstra, same-sex partners and their children may now to be recognised as 'relatives' in relation to various entitlements as well as transitional arrangements stemming from the sell-off of Telstra.
•For Trade Representatives or Trade Officers, same-sex partners and their children may now be recognised when calculating allowances and benefits.
~Relationships:
•If you and your partner split up, you now have the same rights as straight de facto couples. This means that instead of needing to go to your state Supreme Court, the federal family courts (the Family Court of Australia or Federal Magistrates Court) can resolve disputes (for instance, about who gets to keep the house.) This process will be much cheaper and easier than it was previously. (Not applicable for people in WA– see below. SA has recently passed laws allowing people in that State to access the federal family courts for this purpose - this law will take effect on proclamation)
•Most lesbian mums and some gay dads, including step parents, now have the same Federal legal recognition as different-sex parents or step-parents.
•If your partner dies you may be able to access death benefits through superannuation, just as different sex couples do. See the Financial fact sheet for more information.
•In some situations, you may no longer be required to testify in court against your same-sex de facto partner.
•You can now ask for your own details, as well as the details of your children and your de facto partner to be listed as a ‘silent elector’ on the Commonwealth electoral roll if you are at risk, for instance of domestic violence. Complete a silent elector form at your local electoral office or download from the Australian Electorate Office website.
•If you die in a plane crash, your partner and children can now seek compensation from the airline.
•Your same-sex partner may now be recognised as your ‘associate’ in certain circumstances in relation to Corporation law.
•When travelling overseas you and your partner’s tax-free duty allowances may be pooled as a family when calculating the limit of your tax rebate.
~Social Security:
•The definition in Social Security laws of “member of a couple” is different from the other reforms used to determine “defacto relationships”. Five criteria are used by Centrelink to assess the relationship of people you live with to determine if you are a “member of a couple”.
•Some same-sex couples may receive less money from Centrelink, DVA or the Family Assistance office, because they now receive the rate of a couple’s payment instead of two individual payments. Other people’s payments may stop altogether, because their partners’ income or assets are now being included in calculations. If you are concerned about what the changes mean for your payments and would like to speak to somebody independent, you can talk to the Welfare Rights Network.
•If you are a member of a couple and receive a concession or pension card you may be sent a new card with your partner’s name on the card. If you don’t want your partner’s name on your card, you can contact Centrelink and ask them to give you a new card with only your name. You’ll still be able to use both cards so your partner can access some concession discounts.
•Because your relationship is now recognised by social security law, if your family suffers a tragedy where a partner dies, the surviving partner may now be able to access bereavement assistance subject to means testing, such as bereavement allowance or bereavement payment.
•Younger people who live with their same-sex partner may now be recognised as independent. This means your parent’s income and assets will no longer be used to calculate your payment and you could receive a higher Youth Allowance payment.
•If you are a child of same-sex parents, both your parents’ incomes and assets may now be used when working out how much money you should receive from Centrelink.
•Centrelink has not updated its policies regarding transgender and intersex people. This means Centrelink will still ask for your legal sex, which may not be your affirmed sex.
•If your partner is or has been in the Defence Force, you can now apply to be recognised by the Department of Veterans’ Affairs (DVA) as their partner. Similar to social security payments by Centrelink, DVA income support for same-sex couples is assessed on your combined income and assets. Because your relationship may now be recognised by DVA, you and your children may be entitled to receive a pension from DVA as dependants if your partner passes away.
•In this factsheet we keep using the words “same-sex” and “opposite-sex” or “different-sex” couples. This is because these are the terms that the Federal government uses. Under the new laws a person’s gender does not matter when working out who is a ‘member of a couple’. This means that if you are transgender or intersex you can still be considered a “member of a couple”, whatever your partner’s sex or gender.
~Financial:
•Your same-sex partner and your children may now be taken into account when deciding how much tax you have to pay. Depending on your circumstances, you might get extra offsets because of a dependant partner or child, and end up paying less tax. It’s a good idea to talk to a tax professional to ensure you’re making all your available tax deductions.
•Most children of same-sex de facto couples will now be considered as a Family Tax Benefit (FTB) child, provided they meet the other requirements. The Family Tax Benefit Scheme provides financial support for the parents or guardians of dependent children. (See the Social Security factsheet for more information)
•If your same-sex partner is a low income earner, their income may be taken into account when figuring out your Medicare levy surcharge. This surcharge applies to people who do not have private patient hospital cover. This means if you meet all the criteria you may pay a lower surcharge.
•If your same-sex de facto partner were to take out a life insurance policy and then later pass away, the courts can’t force you to use any money you receive to pay off debts.
•If your same-sex de facto partner were part of a private superannuation scheme (such as a defined benefit scheme) or a public superannuation scheme, and then later passed away, you may be eligible for part of your partner’s pension. If you are with a private fund, make sure you check whether their policies are same-sex relationship friendly.
•Same-sex de facto couples with a retirement savings account now have the same entitlements as straight de facto couples. For example if you and your same-sex partner had a child together and your partner passed away, you and your children may now be eligible to receive your partner’s death benefits.
•Same-sex partners who are not the birth parent of their child may still take 'parental leave' and not have to pay contributions to the Commonwealth Superannuation Scheme (CSS) while they’re on leave.
•When working out the recovery and distribution of property when someone goes bankrupt, the government now recognises same-sex partners and children, and all other family relations who are related through the same-sex relationship.
•Same-sex grandparents, and grandparents of children in a family headed by same-sex couples, are now recognised in relation to Family Assistance Payments (which include Family Tax Benefits and child care benefits). This potentially means that eligible same-sex families may be eligible for a special ‘grandparent rate’ which gives child care benefits by reducing fees.
•Same-sex de facto partners, parents and children of someone who is part owner of a company are now recognised as an ‘associate’ of each other for the purposes of determining who owns how much of the company.
•If you are not an Australian citizen, and you and close family (including same-sex de facto partners, parents and children) together own more than 15% of an Australian business, you will now need approval from the Federal Treasurer as these family members are now included as “associates.”
~Health and Ageing:
•The Extended Medicare Safety Net now recognises same-sex couples as a family. This means that if you see a doctor or have tests regularly, your costs are combined, making it likely you’ll reach the threshold sooner. Once you meet the threshold, Medicare will reimburse you 80% of all further out-of-pocket expenses for out-of-hospital Medicare services, except for selected items where the benefits are capped. You must register your family on the Medicare Safety Net to receive these benefits.
•The Pharmaceutical Benefits Scheme (PBS) Safety Net threshold is designed to help lower the costs of medicines for your family. It now recognises same-sex couples as a family for the purposes of the threshold. This means that expenses are combined, saving you money if members of your family need a lot of prescription medicine: once your family reaches the threshold in a calendar year, you will pay less for your medication. There are two different thresholds, one for concession card holders and one for general patients. In order to receive these benefits you need to keep a record on your PBS Prescription Record Forms and apply for a Safety Net card.
•If you or your dependent child is still living in your family home when your partner enters a residential aged care facility, that house will no longer be included in the assets assessment for the purposes of calculating an accommodation bond or accommodation charge. This could mean reduced costs associated with accommodation in aged care facilities, and also protects the partner still at home from having to sell off the family home in order to meet expenses.
•When determining an accommodation bond or accommodation charge amount, assets of both partners are used to calculate the accommodation payment for entry into an aged care facility (each person is deemed to own 50% of the total asset value of the couple).
•Reforms to the definition of a couple will not affect people who moved into aged care facilities before 1 July 2009 in respect of his or her accommodation bond or accommodation charge. If a resident moves to a different aged care facility after 1 July, they may have another asset assessment, which could affect the calculation of the resident’s accommodation bond or accommodation charge in the new facility.
•In determining an aged care resident’s income tested fee the total deemed income of the couple will be considered. Each member of the couple is deemed to own a 50% share of the couple’s total income. If an income tested fee is applicable, it will be based on the resident’s 50% share of total income.
•Same-sex couples can now have both their name and their partner’s name appear on their Medicare card. You can request this by contacting Medicare.
•Under the Age Discrimination Act 2004 people providing private accommodation are exempt from discrimination laws a ‘near relative’ of the accommodation provider resides at the premises. The term ‘near relative‘ now includes same-sex partners, their children and their respective families.
•The same sex partner of an eligible client of the Australian Government Hearing Services Program is now eligible for the Program.
•• Changes to social security law mean that in most cases your same-sex de facto partner’s income will now be taken into account when calculating payment rates for all payments made by Centrelink, the Department of Veteran Affairs and the Family Assistance Office, eg Aged Pension, Disability Support Pension, War Widow’s/Widowers Pension. Please see the Social Security Factsheet for more information about this.
~Immigration:
•Before 1 July 2009, same-sex couples could apply for an ‘interdependent’ visa. These visas were more complicated, time consuming and costly than the new ‘de facto partner’ visas available.
•From 1 July 2009 same-sex couples and their families may apply for de facto partner visas, as long as you meet all the relevant eligibility requirements.
•If you want to make an application for entry into Australia or residency on the basis of being a de facto partner or an eligible family member, you will need to advise the Department of Immigration and Citizenship of your de facto relationship and/or family status. Privacy law in Australia means that this information will be kept strictly confidential.
•The Minister for Immigration and Citizenship might assess your relationship to see if it fulfils all the relevant requirements. If you are in a de facto relationship, this includes a requirement that you have lived together for 12 months. If you are in a registered relationship under state or territory law, you may not have to prove that you have been living together for 12 months when you apply for a visa.
•If you are in Australia, but are not an Australian citizen, you may apply for a partner temporary visa so you can stay with your partner in Australia (if they are an Australian citizen or resident).
•If you are outside Australia, and are not an Australian citizen, and you want to be with your partner who is an Australian citizen, permanent resident or eligible New Zealand citizen, you can apply for a temporary partner visa and permanent partner visa on the same form.
•If you have been with your de facto partner in Australia for at least two years you may apply for a permanent visa.
•Some visa applications require that you spend a certain amount of time in Australia. It is possible to apply to the Minister to treat some time spent overseas as time spent in Australia. One example of this might be if a non-Australian travels with their Australian (resident) partner overseas for work.
•If a same-sex couple is refused a visa, you can now ask for a written reason explaining why the application has been refused, if you fulfil the same criteria as different-sex couples.
•Now it is more likely the relationship between same-sex parents and their children will be recognised in immigration and citizenship matters. Same-sex de facto partners and their children are recognised as family members when one partner is the primary visa applicant.
•Children adopted under Australian or overseas law may be recognised as the children of a same-sex couple when they apply for an Australian visa.
•If a same-sex de facto couple have a child through a legal surrogacy arrangement overseas, they may need to apply for a court order in the country where the surrogacy arrangement was made to legally transfer parentage of the child from the surrogate to themselves.
•If your child was born overseas via surrogacy and one of the biological parents is Australian, once the child has lawfully remained in Australia for at least 2 years, the child may be registered as an Australian citizen by descent.
•If you have migrated with your non-biologically related child, that child may now be recognised as your child. This means migrant children of same-sex couples may be entitled to the provision of English courses and tuition due to the fact that they have a parent who holds a permanent visa or entry permit.
85 new reforms - how do they affect you?
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