Same-Sex Relationships—Recent Legal and Policy Developments

The issue of government regulation of personal relationships is inherently vexed, exciting strong emotions in both the community and political spheres. The major political parties have experienced internal dissension over this issue. Minor parties, such as the Greens, have greater internal unanimity, but have nevertheless experienced political difficulties from their vocal opponents. There are many unresolved issues in the area and they are bound to continue into future parliaments.

In July 2007, the Human Rights and Equal Opportunities Commission issued the report, Same Sex: Same Entitlements (the HREOC report), which documented discrimination faced by same-sex couples in a range of areas, particularly with respect to basic financial entitlements, tax concessions and superannuation benefits, exclusions from a legally recognised parental role, and difficulties with the Medicare safety net, carers leave and workers’ compensation. Fifty-eight recommendations for changes to federal laws were made. Subsequently, a poll was released showing a widespread desire for reform. However, there have also been vocal objections, including by Christian lobby groups. In August 2007, then Liberal Party backbencher Warren Entsch presented a petition requesting then Prime Minister John Howard to adopt HREOC’s recommendations. The Democrats introduced a Bill to implement the recommendations, which was opposed by the major parties.

The Howard Government did not formally respond to the HREOC report. The Australian Labor Party (ALP) welcomed the report, restating its ‘long-standing commitment to remove discrimination from federal legislation’.

Marriage and family law matters

The marriage of same-sex couples is a topic of perennial interest to the media, segments of the public and the Parliament, and will continue to be raised by same-sex couples concerned to have their relationships recognised and associated rights addressed.

The HREOC report, while referring to high levels of interest in same-sex ‘marriages’, did not deal directly with the issue. It focused instead on discrimination in all forms of relationships. The leaders of the major parties have rejected same-sex marriages. The Howard Government amended the Marriage Act 1961 to preclude same-sex marriages, and used the Commonwealth’s power over the territories to overturn the Australian Capital Territory’s civil unions legislation.

Same-sex couples have no access to the Family Court in relation to property matters, similar to de facto opposite-sex partners.

The leaders of the major parties have rejected same-sex adoptions, although this is traditionally an area of state and territory regulation. During the 2007 election campaign, ALP leader Kevin Rudd recognised that there may be some exceptions to his general principle that same-sex couples should not have the right to adopt. His position on this topic has been the source of discontent from the Australian Christian Lobby.

Superannuation

The HREOC report identified several discriminatory provisions in the area of superannuation. Same-sex partners face discrimination in areas including the capacity to make certain contributions, and the right to certain pensions and tax-free lump sums, and the children of same-sex couples may have difficulty accessing pensions.

Earlier this year, significant publicity was given to a letter that High Court Justice Michael Kirby sent to the Attorney-General asking that the discrimination that the judge’s partner faces in terms of superannuation be remedied. Subsequently, the ALP moved an amendment to the Judges Pensions Amendment Bill 2007 seeking to address Kirby’s concerns. The Howard Government defeated these amendments, saying it was inappropriate to deal with one defined benefits scheme in isolation.

Future issues

The ALP has committed to removing all the discriminations concerning same-sex couples in respect of inheritance laws, social security law and ‘other categories’. The Coalition, both during the election campaign and subsequently, has indicated a willingness to give same-sex couples certain economic recognition. Rudd’s stated opposition to same-sex marriages means that there is unlikely to be change on this issue. However, the ALP has proposed some form of formal recognition or national registration system for same-sex couples, and other prominent members of the ALP have indicated their support for a more comprehensive response.

Documentation
Human Rights and Equal Opportunity Commission, Same Sex: Same Entitlements, Report from the National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits, Human Rights and Equal Opportunity Commission, Sydney, 2007.