Federal Relationship Recogntion

At the federal level, lesbians and gay men are still not treated the same as heterosexuals. Whilst most states have adopted legislation that recognises same-sex de facto relationships as the same as heterosexual de facto relationships, no such legislation exists at a federal level. The lack of legal recognition has a real and daily impact on the lives of thousands of gay and lesbian Australians. In the federal legislative areas of superannuation, insurance, social security, immigration and taxation, the status of "spouse" is defined as heterosexual only, excluding same-sex couples from the rights and obligations held by heterosexual couples.

Social Security
Many pensions, allowances and family payment entitlements are affected by whether the person claiming is a 'member of a couple'. The social security system is based on the premise that living costs more for a single adult person than for each member of a couple. The implications are spread across the range of social security payments.

Under the Social Security Act 1991 (Cth) a 'member of a couple' is someone who:

• is legally married, unless 'living separately and apart on a permanent basis', or
• is not legally married but is living with a person of the opposite sex in a marriage-like' relationship as defined by the Act (s4).

This definition excludes same sex relationships. Lesbians and gay men are therefore assessed as individuals, and the income of a partner in a same sex couple is not taken into account for income or assets tests.

As a result of these exclusionary definitions of a couple under social security law, lesbians and gay men are not eligible for a number of benefits. For instance, a partner allowance cannot be paid to a lesbian or gay man whose partner is receiving the disability support pension, age pension, mature age allowance, sickness allowance, special benefit, newstart allowance, youth allowance, austudy or abstudy. Neither the widow B pension nor the widow allowance are available to lesbians, as these payments are only made to women who were in a heterosexual relationship and have been widowed, deserted or divorced. The bereavement allowance is only payable to a person whose heterosexual partner has died.

Insurance
The health insurance industry is governed under commonwealth law by the National Health Act 1953, and Medibank Private is regulated by the Health Insurance Commission Act 1973. It is standard industry practice for health insurers to offer discounted cover for families. Under both acts, it is left open to the insurers to define what "family" means. Whilst some private health insurers do recognise lesbian and gay families for this purpose, the law does not protect same-sex families from discrimination in regards to their private health insurance.

Immigration
Australian citizens and permanent residents can sponsor their lesbian or gay partner to migrate to Australia or stay in Australia permanently (if they are already legally here) under the interdependency visa category. However only a small number of such visas are granted each year and quotas are set annually with numbers varying depending on the whim of the government of the day.

Taxation
The absence of lesbians and gay men from the definition of spouse under the Income Tax Assessment Act 1997 (s995-1) means that same-sex couples are excluded from the income tax benefits available to heterosexual couples. It also means that lesbians and gay men who are non-biological co-parents of children will not have access to the same income tax benefits relating to their child as heterosexual parents do.

Under the Income Tax Assessment Act 1936 the following income tax benefits are not available to same-sex couples:

• dependent spouse rebate (s159J)
• housekeeper rebate (s159L)
• child-housekeeper rebate (s159J)
• parent rebate (s159J)
• superannuation rebate (s159T-159TC)
• medical expenses rebate (s159P)

For other benefits, heterosexual couples are given concessional rates in determining their eligibility. The same does not apply for same-sex couples. These benefits include:

• pensioner rebate (s160AAA)
• low-income aged person's rebate (s160AAA)
• medical expenses rebate (s159P)

The eligibility of a taxpayer for payment of the Medicare Levy is decreased if they have a dependant spouse. This option is not available for lesbians and gay men in de facto relationships, as the law does not recognise a same-sex partner as a spouse.

Defence
The Australian Defence forces do not recognise same-sex partners of defence force personnel. This has a negative effect in terms of access to defence force benefits that are afforded to heterosexual spouses, as well as superannuation entitlements.

Whilst there is no federal relationship recognition of same-sex couples, same-sex couples do have de facto status in NSW. For more information please click here.