Same-Sex Reforms

Following a June 2007 report by the Human Rights and Equal Opportunity Commission - Same-Sex: Same Entitlements - the Australian Parliament passed legislation in November 2008 to reform 84 Commonwealth laws. The effect of these reforms is to ensure that same-sex couples and their families are recognised in Commonwealth law and have the same entitlements as opposite-sex de facto couples. A summary of the law reforms is available on the Attorney-General's website - click here to access it.

The Government has recognised that, as a result of ensuring that same-sex couples receive the same treatment as opposite-sex de facto couples, the reforms may also impose burdens on some same-sex couples or reduce certain benefits they currently receive. COPP anticipates that the most negative impacts will be experienced where one or both partners receive Centrelink payments. Currently, same-sex partners in receipt of Centrelink pensions or benefits are both assessed as single people, but as a result of the legislative reforms are likely to be assessed as a couple. The assessment changes will take effect on 1 July 2009. From that date you were required to advise Centrelink if you are in a same-sex de facto relationship. If you are already a recipient of Centrelink payments, you will be able to advise them between 30 March and 30 June 2009 to avoid overpayment. Centrelink has created a web page on its site outlining the changes - click here to access it. The page also lists call centre numbers for those people wishing to speak to a staff member about the changes.

COPP has identified the need to inform those who may be affected about Centrelink's assessment process for couples, as it is complex and can result in lower payments or even the total loss of payments. For example, where one partner has been in receipt of the single rate of age pension and the other partner is still working, as of 1 July 2009 the income test will take both partners' incomes into account. The increased level of income is likely to make the retired partner ineligible for any payment.

In May 2009 COPP Community Liaison Committees ran a series of open forums on the changes early in 2009, to which MPs, Senators and Centrelink representatives were also invited. Given that the reforms recognise same-sex partners living in "marriage-like relationships", many people feel that it is incumbent on the Australian Parliament to take the next logical step and reform the Commonwealth Marriage Act to enable same-sex couples to marry. A Galaxy survey conducted in June 2007 for GetUp! identified that the majority of Australians (57%) were in favour of such a change.

While COPP is unable to provide expert or legal advice to same-sex partners on their rights in relation to Centrelink pensions and benefits, this page sets out some basic information on its assessment processes. Full details of all payments and the relevant means tests are available from the Centrelink website - click here to access it.

Will Centrelink regard me as a member of a couple and what rights do I have?

The first issue is whether two same-sex partners should be regarded as a couple for assessment purposes - an issue that has long mired opposite-sex partners in disputes with Centrelink. The Social Security law administered by Centrelink and the related policy guides require staff to consider all the circumstances of a relationship in reaching the conclusion that a couple is living in a "marriage-like relationship". These include (click here for the link to the relevant section of the Guide to Social Security Law):

  • the financial aspects of the relationship,
  • the nature of the household,
  • the social aspects of the relationship,
  • any sexual relationship between the people, and
  • the nature of the people's commitment to each other.

The Guide to Social Security Law instructs Centrelink staff that "all 5 factors must be considered. However, no single factor should be seen as conclusive and not all factors need to be present. For instance, if the parties previously had a sexual relationship but no longer have an ongoing sexual relationship, and the evidence in the other 4 factors supports the presence of a marriage-like relationship, a decision may be made that the parties are in a marriage-like relationship." Each of the factors is further explained in the Guide to Social Security Law - click here to access the relevant material.

The National Welfare Rights Network has a series of factsheets available on its website - click here to access the relevant web page. Two are particularly relevant: Marriage-like relationships, separations and Social Security and Centrelink home visits and your rights. The former factsheet lists the kinds of questions that Centrelink staff are likely to ask in reaching a determination. The latter factsheet details, amongst other rights, your right to refuse staff entry to your home, to ask that questions be put in writing, to have someone accompany you to interviews and to take time to respond to questions. The National Welfare Rights Network includes the Hobart Community Legal Service (6223 2500) and the Launceston Community Legal Centre (6334 1577 / 1800 066 019), both of which provide information and advocacy on social welfare issues.

If Centrelink does regard me as a member of a couple, how will they assess my eligibility for a pension or benefit?

In assessing anyone for a pension or benefit, Centrelink first applies eligibility and residence requirements. In most cases an Income Test and an Assets Test are then applied, and the level of payments calculated under each of these tests is compared. The pension or benefit paid will be at the lower of the two rates.

For an Age Pension, for example, the total income and assets of both partners is calculated for these tests. The following figures apply as at December 2008. To qualify for the maximum fortnightly payment of $469.50 each, the maximum level of fortnightly income is $240 (plus $24.60 per child) and the maximum level of assets is $243,500 (homeowners) or $368,000 (non-homeowners). If total income or assets exceed either level then the fortnightly pension payment is reduced. No pension is payable where total fortnightly income exceeds $2,602.50 (plus $24.60 per child) or total assets exceed $873,500 (homeowners) or $998,000 (non-homeowners).

While the means-testing process appears relatively straightforward, it is very important to "read the fine print" in relation to the income and assets tests. For example, for homeowners the family home and up to 2 hectares of the surrounding land is excluded from the assets test. For household contents, it is their current market value, and not their replacement cost or insured value, that is assessed. Also, where only one partner has reached pension age, the amount that the non-recipient partner has in a superannuation accumulation fund is excluded. However, once an income stream is purchased with the funds, the account balance is treated as an assessable asset and the income derived from the account is treated as assessable income (click here to access the relevant page of the Guide to Social Security Law).

Where can I get further information or advice?

For those who were not able to attend the Centrelink forums supported by the four regional COPP Community Liaison Committees, we recommend the following contacts:

  • Centrelink provides a Financial Information Service, whose staff provide free and confidential advice 'without prejudice' - that is, they are not involved in the assessment of client entitlements. Click here to their web page or call 13 2300 to speak to an FIS officer - you can make an appointment to discuss complex issues.
  • For those LGBTI couples who require independent legal professional 'right of appeal' or who would prefer an alternative support to Centrelink, advice is available from the following regional Community Legal Centres:
    • Hobart: 6223 2500 Noelle Rattray and Chris Rice
    • Launceston: 6334 1577 Gary Bissland
    • North-West: 6424 8720 Chris Young