Same-Sex: Same Entitlements: Chapter 10
Same-Sex: Same Entitlements Report
Chapter 10. Veterans’
Entitlements
Download Chapter 10: [ PDF] [ Word ]
- 10.1 What is this chapter about?
- 10.2 Are same-sex couples and their children recognised under veterans’ entitlements legislation?
- 10.3 Can the survivors of a deceased veteran access death benefits?
- 10.4 Can the same-sex partner of a living veteran access entitlements?
- 10.5 Do veterans’ entitlements laws breach human rights?
- 10.6 How should the law be changed to eliminate future breaches?
10.1 What
is this chapter about?
This chapter focuses on discrimination regarding the
entitlements available to veterans of the Australian Defence Forces who have a
same-sex partner or children.
These
entitlements are provided in the Veterans’ Entitlements Act 1986 (Cth) (Veterans’ Entitlements Act) and the Military Rehabilitation and
Compensation Act 2004 (Cth) (Military Compensation Act).
A number of submissions to the Inquiry
highlighted the discrimination against same-sex couples under this
legislation.[1]
The
main cause of the discrimination lies in the definitions of
‘partner’ and ‘member of a couple’, which exclude a
person in a same-sex relationship. The definitions of ‘widow’,
‘war widow’, ‘widower’ and ‘war widower’
also deny benefits to the same-sex partner of a deceased veteran.
The children of a veteran in a same-sex couple
may be able to access some entitlements because of slightly broader definitions
relating to children. However, those definitions do not always include the child
of a lesbian co-mother or gay co-father.
This
chapter explains which of the various entitlements available to veteran
opposite-sex couples are denied to veteran same-sex couples and their children.
The chapter discusses how discrimination against same-sex couples in the
veterans’ entitlements laws breaches Australia’s human rights
obligations. The chapter then makes recommendations on how to amend the law to
avoid future discrimination.
Specifically, this
chapter addresses:
- Are same-sex couples and their children recognised under
veterans’ entitlements legislation?
- Can the survivors of a deceased veteran access death
benefits?
- Can the same-sex partner of a living veteran access
entitlements?
- Do veterans’ entitlements laws breach human
rights?
- How should the law be changed to eliminate future
breaches?
10.2 Are
same-sex couples and their children recognised under veterans’
entitlements legislation?
The Veterans’ Entitlements Act gives
entitlements to people who have rendered ‘operational service’. This
includes those who have seen active service in war-time or in peace-keeping
missions or have been involved in eligible ‘defence service’ work
and suffered an injury or death related to that
service.[2]
The
Military Compensation Act provides workers’ compensation and other
benefits for current and former members of the defence force who suffer disease
or service injury. It also provides compensation for the dependants of some
deceased
members.[3]
Same-sex
couples are ineligible for some payments because both the Veterans’
Entitlements Act and the Military Compensation Act fail to recognise a same-sex
partner in the same way as they recognise an opposite-sex
partner.
The legislation may also exclude the
child of a lesbian co-mother or gay co-father in some situations.
10.2.1 A
same-sex partner is not recognised under veterans’ entitlements
legislation
The Veterans’ Entitlements Act and the Military
Compensation Act use slightly different terms to determine when a person’s
partner may be entitled to benefits. However, both of them exclude a same-sex
partner.
(a) ‘Partner’
and ‘member of a couple’ exclude a same-sex partner
The Veterans’ Entitlements Act defines a
‘partner’ as a person who is the other ‘member of a
couple’.[4] A ‘member of a
couple’ can only be a person of the ‘opposite
sex’.[5]
Similarly, the Military Compensation Act
defines a ‘partner’ to be ‘a person of the opposite sex to the
member’.[6]
Thus,
both these definitions exclude a same-sex
partner.
The Veterans’ Entitlements Act
also requires that a ‘member of a couple’ be in a
‘marriage-like
relationship’.[7] The criteria
used to determine whether someone is in a ‘marriage-like
relationship’ do not necessarily exclude a same-sex
couple.[8] However, as discussed in
Chapter 4 on Recognising Relationships, these words also imply that the couple
must be of the opposite sex. And in any event, under the legislation being an
opposite sex ‘member of a couple’ is a prerequisite to being in a
‘marriage-like relationship’.
(b) ‘Widow’,
‘war widow’, ‘widower’ and ‘war widower’ in
the Veterans’ Entitlements Act exclude a same-sex partner
The terms ‘widow’, ‘war
widow’, ‘widower’ and ‘war widower’ in the
Veterans’ Entitlements Act are all gender specific and refer to the
‘partner’ of the deceased
person.[9]
Since a ‘partner’ must be of the
opposite sex, a same-sex (war) widow or (war) widower will be excluded from
these definitions.
(c) ‘Dependant’
in the Veterans’ Entitlements Act excludes a same-sex
partner
The Veterans’ Entitlements Act defines a
‘dependant’ in relation to a veteran (including a veteran who has
died) to include the ‘partner’, ‘widow’ and
‘widower’ of a
veteran.[10] All of those terms
require that a person be of the opposite sex and will therefore exclude a
same-sex partner.
A ‘dependant’ can
also be a ‘non-illness separated spouse’. But that term only
includes a person who is or was married to the
veteran.[11]
(d) ‘Dependant’
in the Military Compensation Act excludes a same-sex partner
A ‘dependant’ in the Military Compensation
Act includes the ‘member’s
partner’.[12] Since the term
‘partner’ refers exclusively to a member of an opposite-sex couple,
a same-sex partner cannot be the ‘dependant’ of a veteran.
10.2.2 Children
of a same-sex couple may be recognised under veterans’ entitlements
legislation
Chapter 5 on Recognising Children notes that when
children are born to a lesbian or gay couple their parents may include a birth
mother, lesbian co-mother, birth father or gay
co-father(s).[13]
There are many laws which focus only on the
relationship between a child and his or her birth parent. When this occurs, the
child of a same-sex couple may be at a disadvantage because the child of the
lesbian co-mother or gay co-father is
ignored.
The relevant definitions in the
Veterans’ Entitlements Act and the Military Compensation Act seem to
include all of the birth mother, birth father, lesbian co-mother and gay
co-father. However, as discussed in Chapter 5, it may be more difficult for a
lesbian co-mother or gay co-father to prove her or his entitlement to those
benefits than it would be for a birth mother or birth father.
(a) ‘Dependant’
in the Veterans’ Entitlements Act may include the child of a same-sex
couple
The
definition of a ‘dependant’ in the Veterans’ Entitlements Act
includes a child of the
veteran.[14]
The
Veterans’ Entitlements Act defines a ‘child’ to be a person
who has not turned 16 or who is aged between 16 and 25 and is
studying.[15] This definition does
not say anything about the relationship between the adult and the child, so
could include any person up to the age of
25.
The Veterans’ Entitlements Act
defines a ‘child of a veteran’ to include a child of the veteran
‘mother’ or ‘father’, an adopted child and ‘any
other child who is, or was immediately before the
death of the veteran, wholly or substantially
dependent on the veteran’.[16]
As
discussed in Chapter 5 on Recognising Children, it is likely that the reference
to a ‘mother’ or ‘father’ includes only the birth mother
or birth father. However, the child of a lesbian co-mother or gay co-father may
be included if the child is ‘wholly or substantially dependent’ on
them.
A child will be ‘wholly or
substantially dependent on a veteran’ where that ‘veteran is, under a law of the Commonwealth or of a State or Territory, liable to
Thus,
if the child can prove that the veteran is liable to maintain him or her by law,
then he or she may be considered a ‘child of a veteran’.
In the Inquiry’s view, where a veteran
lesbian co-mother or gay co-father has a parenting order in relation to a child,
that child will likely qualify as the ‘child of a
veteran’.[18]
(b) ‘Dependant’
in the Military Compensation Act may include the child of a same-sex
couple
In the Military Compensation Act, a
‘dependant’ is defined as a person who is ‘wholly or partly
dependent’ on a member (or would be if the member had not been
incapacitated) and includes:
(a) any of the following persons
- (i) the member’s partner;
- (ii) the member’s father, mother, step-father or
step-mother;
- (iii) the father, mother, step-father or step-mother of
the member’s partner;
- (iv) the member’s grandfather or grandmother;
- (v) the member’s son, daughter, step-son or
step-daughter;
- (vi) the son, daughter, step-son or step-daughter of the
member’s partner;
- (vii) the member’s grandson or grand-daughter;
- (viii) the member’s brother, sister, half-brother
or half-sister; or
(b) a person in respect of whom the member stands in the
position of a parent; or
(c) a person who stands in the position of a parent to
the member.[19]
As discussed in Chapter 5 on
Recognising Children, the reference to a ‘mother’,
‘father’, ‘daughter’ or ‘son’ in clause (a)
is likely to include only the birth mother, birth father, birth daughter or
birth son or an adoptive parent or child.
Further, a person can only be a
‘step-father’, ‘step-mother’, ‘step-son’ or
‘step-daughter’ in a same-sex family if the lesbian co-mother or gay
co-father marries the birth parent. This is not currently possible for a
same-sex couple.
However, clauses (b) and (c)
refer to a relationship where a person ‘stands in the position of a
parent’.
In the Inquiry’s view,
where a veteran lesbian co-mother or gay co-father has a parenting order in
relation to a child, he or she will be ‘standing in the position of a
parent’ in relation to that
child.[20] However, in the absence
of a parenting order, it is unclear what proof is required.
(c) ‘Dependent
child’ in the Veterans’ Entitlements Act may include the child of a
same-sex couple
In addition to the definition of ‘child’
and ‘child of a veteran’, the Veterans’ Entitlements Act uses
the term ‘dependent child’ in relation to some benefits and
entitlements.
The definition of
‘dependent child’ in the Veterans’ Entitlements Act adopts the
definition used in the Social Security Act 1991 (Cth) (Social Security
Act).[21]
Chapter 9 on Social Security explains that a
‘dependent child’ may include the child of a lesbian co-mother or
gay co-father, particularly if one or the other has a parenting order regarding
that child. It will also include the child of a birth mother or birth
father.[22]
(d) ‘Eligible
young person’ in the Military Compensation Act may include the child of a
same-sex couple
The Military Compensation Act confers some
entitlements to an ‘eligible young person’ who is ‘wholly
dependent on a member’.
An
‘eligible young person’ is a person under 16, or between 16 and 25
and studying full time.[23] And an
‘eligible young person’ will be ‘wholly dependent’ on
the member if the young person is living with the
veteran.[24]
These
definitions may include a person up to the age of 25 who is living with any of a
birth mother, birth father, lesbian co-mother or gay co-father.
10.3 Can
the survivors of a deceased veteran access death benefits?
There are a large range of entitlements available to a
veteran during his or her life, and to his or her surviving family after death.
A surviving same-sex partner of a veteran
cannot access those entitlements because of the various definitions under the
legislation.
However, the child of a veteran
will generally be able to access those entitlements, even if the veteran is not
the birth mother or birth father.
A same-sex
partner cannot get the entitlements listed below:
- War Widow/Widower’s Pension
- Income Support Supplement
- Bereavement Payments
- Funeral benefits
- Gold Repatriation Health Card
- Military
compensation.
The following sections
explain why this discrimination occurs, and the financial impact of that
discrimination.
10.3.1 A
veteran’s surviving same-sex partner cannot access the War
Widow/Widower’s Pension
If
a veteran dies as a result of war service or eligible defence service, the
surviving ‘partner’, as a ‘dependant’, is entitled to
the War Widow/Widower’s Pension and a variety of other benefits under the
Veterans’ Entitlements
Act.[25]
(a) A
same-sex partner is not a ‘dependant’
As discussed in section 10.2.1 above, a same-sex
partner is not a ‘dependant’ of a deceased veteran under the
Veterans’ Entitlements Act. Therefore, he or she will not be eligible to
receive the War Widow/Widower’s Pension or other benefits available to an
opposite-sex partner of a same-sex couple.
(b) Negative
financial impact on same-sex partners
The War Widow/Widower’s Pension amounts to a
payment of $537.10 per
fortnight.[26] A same-sex partner is
not eligible for this payment.
(c) Negative
personal impact on same-sex partners
Mr Walter Lee states his view about discrimination
against the surviving same-sex partner of a veteran as follows:
Partners of those who have served in the Australian
Defence Forces are usually entitled to receive a war widow/er’s pension
when their partner dies.
However, this does not apply to same-sex partners...
Gay war veterans laid down their lives or were injured for
our country. They protected us. We should protect them and their families.
Why are their families less deserving of being afforded this protection?
They did not fight solely to protect those in same-sex
relationships; they fought to protect all of us, regardless of our sexual
preference. It is ironic that they fought to even protect those who would come
to institute policies which would deliberately discriminate them and their
families...
Many of them fought and gave their lives to make this
world a better place. Let us not dishonour their memory by denying pensions to
their families. Let us not dishonour and tarnish the world they fought to
defend, by continuing to uphold bigotry and discrimination. Have we learned
nothing from their sacrifice?[27]
Mr Jiro Takamisawa also spoke of the impact of
the discrimination he faced in accessing the War Widower’s
Pension:
I loved a man called John. He was an Australian veteran.
We were in a relationship for over 20 years. John died of war-related injuries
in 2004. I applied for a war widow’s pension and had I been in a
heterosexual relationship with John, I would have been eligible. Because I was
in a same-sex relationship, the pension was refused.
I was recognised as John’s carer in the last stages
of his life. I received a carer’s pension and because of my care for John,
he did not need to be admitted to any veterans’ hospice or medical
facility. I took good care of him. Now that John has gone, of course, I no
longer receive that pension. But without the financial support of the war
widow’s pension that I should be entitled to because of my long-term
relationship with John, I am struggling
financially.[28]
(d) The
United Nations and discrimination in veterans’
entitlements
Mr Edward Young was denied a pension and bereavement
payment after his veteran partner died. Mr Young took his complaint through all
available legal channels in Australia but found no remedy. He eventually took
his complaint to the UN Human Rights Committee.
As discussed further in Chapter 3 on Human
Rights Protections, the UN Human Rights Committee concluded that:
...the author [Mr Young], as a victim of a violation of
article 26 [of the International Covenant on Civil and Political Rights]
is entitled to an effective remedy, including the reconsideration of his pension
application without discrimination based on his sex or sexual orientation, if
necessary through an amendment of the law. The State party [Australia] is under
an obligation to ensure that similar violations of the Covenant do not occur in
the
future.[29]
Mr
Young told the Inquiry how he felt when he was told he was ineligible for
payment:
I was told I was not eligible because I was not of the
opposite sex. This directive shocked me. Was I not human? Would I not be
grieving for my late partner? There was no consideration. I felt that I was
being treated like some
sub-human.[30]
Mr
Young has not received a War Widower’s Pension or Bereavement Payment, and
the relevant legislation has not been amended to remedy the
discrimination.
10.3.2 A
surviving child of a same-sex veteran parent may access the Orphan’s
Pension and other benefits
A ‘dependant’ of a veteran who has been
orphaned is eligible for the Orphan’s Pension under the Veterans’
Entitlements Act.[31]
(a) A
child of a same-sex couple may be a ‘dependant’
As noted in section 10.2.2 above, a
‘dependant’ includes a ‘child of a veteran’ in the
Veterans’ Entitlements Act. A ‘child of a veteran’ can include
the child of a lesbian co-mother or gay co-father, as well as the child of a
birth mother and birth father, as long as the child was ‘wholly or
substantially dependent’ on the
veteran.[32] A child will be
‘wholly or substantially dependent’ if the deceased veteran was, at
the time of death, legally liable to maintain the
child.[33]
If the lesbian co-mother or gay co-father had
a parenting order in favour of the child then there is little doubt that the
child will qualify.
(b) Benefits
available to a child of a same-sex couple
A qualifying child of a veteran will be entitled to a
single Orphan’s Pension payment of $79.10 per fortnight or a double
Orphan’s Pension payment of $158.20 per
fortnight.[34]
Further,
the child may also be eligible for the following benefits:
- a Gold Repatriation Health Card (which entitles
the holder to certain medical treatment and
services)[35]
- financial assistance and counselling from the
Veterans’ Children Education
Scheme[36]
- a funeral
benefit.[37]
10.3.3 A
veteran’s surviving same-sex partner cannot access the Income Support
Supplement
The Income Support Supplement is payable under the
Veterans’ Entitlements Act to an eligible ‘war widow’ or
‘war
widower’.[38]
However,
as discussed in section 10.3.1 above, a same-sex partner cannot be a ‘war
widow’ or ‘war widower’ under the Veterans’ Entitlements
Act. Therefore, a veteran’s surviving same-sex partner will never qualify
for this benefit under the Veterans’ Entitlements
Act.
The Income Support Supplement is an income
support pension valued at a maximum of $152.60 per
fortnight.[39]
10.3.4 A
veteran’s surviving same-sex partner cannot access the Bereavement
Payment
A surviving partner may be entitled to a Bereavement
Payment if he or she is receiving a veterans’ pension and his or her
deceased partner was also receiving a veterans’ pension or a social
security pension before death.[40]
The Bereavement Payment under the
Veterans’ Entitlements Act is intended to:
...assist with the costs that may follow the death of a
person and to help a surviving partner adjust their finances given that the
pension of the deceased person will
stop.[41]
A
same-sex couple is excluded from these benefits because the surviving partner
must be a ‘member of a couple’ as defined by the Veterans’
Entitlements Act.
However, a Bereavement
Payment may also be paid to a pensioner if his or her ‘dependent
child’ dies.[42] As discussed
in section 10.2.2 above, a ‘dependent child’ may include a child of
a lesbian co-mother or gay co-father (as well as birth parents). Accordingly, a
same-sex veteran pensioner parent may be entitled to this payment irrespective
of whether he or she is the birth parent.
10.3.5 There
is no support for the funeral of a deceased veteran’s indigent same-sex
partner
The Veterans’ Entitlements Act provides up to
$1000 towards the cost of the funeral of the ‘dependant’ of a
deceased veteran, if that ‘dependant’ dies in impoverished
circumstances.[43]
Because
a same-sex partner does not meet the definition of ‘dependant’, this
benefit will not be paid for the funeral of an indigent same-sex partner of a
deceased veteran.
However, a child of a
deceased veteran may meet the definition of ‘dependant’. So the
funeral benefit may be available for the funeral of the child of the deceased
veteran, even if the veteran was the child’s lesbian co-mother or gay
co-father.
10.3.6 A
veteran’s surviving same-sex partner cannot access the Gold Repatriation
Health Card
The Veterans’ Entitlements Act provides
treatment for ‘any injury suffered or disease contracted’ by a
‘dependant’ or ‘child of a deceased veteran’ at the
expense of the Department of Veterans’
Affairs.[44] This is administered
through the Gold Repatriation Health
Card.
The Gold
Repatriation Health Card is also available to a person who was the ‘wholly
dependent partner’ of a deceased veteran and ‘an eligible young
person’ who was ‘wholly or mainly dependent’ on the deceased
veteran under the Military Compensation
Act.[45]
A
same-sex partner is not entitled to the Gold Repatriation Health Card under
these definitions, but the child of a same-sex veteran parent may be eligible
for the Card whether or not he or she is the birth child or the child of a
lesbian co-mother or gay co-father.
10.3.7 A
veteran’s surviving same-sex partner cannot access military
compensation
A person who is a ‘wholly dependent
partner’ of a deceased veteran under the Military Compensation Act may be
entitled to the following military workers’ compensation
payments:[46]
- a tax-free age-based death benefit where the
veteran’s death has been accepted as related to service. This can be
provided via periodic payments or a lump sum equivalent. The maximum amount of
the benefit is $111 244.27[47]
- a payment of up to $1334.93 to assist with
seeking financial advice when deciding between the pension or a lump
sum[48]
- a further lump sum payment where his or her
partner was suffering continuing permanent impairment or incapacity before
death.[49]
A
‘wholly dependent partner’ may also be eligible for free medical
treatment or compensation for treatment (covered by the Gold Repatriation Health
Card),[50] a Pharmaceutical
Allowance[51] and a Telephone
Allowance[52] under the Military
Compensation Act. These benefits and payments are the same as those
offered in the Veterans’ Entitlements Act. [53]
However,
the definition of ‘wholly dependent partner’ will exclude a same-sex
partner.[54]
10.3.8 A
surviving child of a same-sex veteran parent may access military
compensation
Additional military compensation is also available to
an ‘eligible young person’ who is a ‘dependant’ of a
deceased service member.[55]
An ‘eligible young person’ will be
a ‘dependant’ if he or she is ‘wholly or partly dependent’ on the service member prior to the service member’s
death. If the young person qualifies, he or she is eligible to
receive:
- a tax-free lump sum compensation payment of $66
746.56[56]
- education assistance under the Military
Compensation Act Education and Training Scheme while they remain an eligible
young
person.[57]
An
‘eligible young person’ who was ‘wholly or mainly dependent’ on a deceased service member may also receive:
- a weekly compensation payment of $73.42 a
week[58]
- free medical treatment (covered by the Gold
Repatriation Health Card)[59]
- a Pharmaceutical
Allowance.[60]
A
child of a birth mother, birth father, lesbian co-mother or gay co-father could
qualify for these entitlements as long as he or she could establish the
appropriate degree of dependency on the deceased veteran before death. As noted
in section 10.2.2 above, it may be sufficient to prove that the child was living
with the veteran.
10.4 Can
the same-sex partner of a living veteran access
entitlements?
There are a range of entitlements available to a
veteran and his or her partner while a veteran is still living. These
are:
- Partner Service Pension
- Utilities Allowance
- Telephone
Allowance.
A same-sex partner of a
veteran cannot access those entitlements because of the various definitions
under the legislation.
However, the child of a
veteran will generally be able to access those entitlements, even if the veteran
is not a birth mother or birth father.
The
following sections explain why a same-sex partner cannot get these entitlements
and the financial impact of that discrimination.
10.4.1 A
veteran’s same-sex partner cannot access the Partner Service
Pension
The Veterans’ Entitlements Act provides for a
Service Pension (also referred to as the Age Service Pension or Invalidity
Service Pension) to a veteran with limited
means.[61] It also provides for a
Partner Service Pension for the ‘partner’ of a veteran in certain
circumstances.[62]
However, a same-sex partner is not eligible
for the Partner Service Pension because of the narrow definition of
‘partner’ in the legislation.
(a) A
same-sex couple will only be eligible for the singles’ rate of the Service
Pension
The narrow definition of ‘partner’ also
impacts on the amount of the primary Service Pension paid to the veteran him or
herself.
The Service Pension is income and
assets tested and paid at a singles’ rate and a couples’
rate.[63] The maximum singles’
rate is $512.10 per fortnight.[64] The maximum couples’ rate is $427.70 for each member of the couple per
fortnight.[65]
Where a veteran has a ‘partner’,
the veteran would receive the Service Pension at the couples’ rate and the
veteran’s partner would receive the Partner Service Pension at the
couples’
rate.[66]
However,
since the legislation does not recognise a same-sex partner as a
‘partner’, the veteran of the couple is only entitled to the Service
Pension at the singles’ rate, and his or her partner is not entitled to
receive the Partner Service Pension at all. Put another way, a same-sex couple
will only ever be eligible for the singles’ rate of the Service Pension to
be shared between the couple.
(b) Negative
impact on a same-sex couple
A former member of the defence force, with a total and
permanent injury (TPI) resulting from his time in the defence force, told the
Inquiry:
Opposite-sex partners of TPI pensioners are entitled to a
service pension themselves but a same-sex partner does not have that entitlement
purely because of the fact the person is of the same-sex... My partner [name
removed] has actually made an application to the department at one stage to
attempt to get the pension and was refused purely on the ground that he was the
same sex as
me.[67]
The
following example illustrates that a same-sex couple will generally be worse off
than an opposite-sex couple in the same situation because the same-sex couple
cannot access the Partner Service Pension.
Ben and Lisa have been together for 30 years. During
that time Ben has been employed by the Australian Defence Force. He has been
involved in a number of international conflicts. Ben reaches pension age and
claims the service pension. His partner Lisa has also retired. Lisa decides to
apply for the Partner Service Pension. Her application is accepted and Ben and
Lisa are paid the maximum rate of $427.70 each per fortnight, totalling $855.40
per fortnight.
Ben and John have been together for 30 years. During
that time Ben has been employed by the Australian Defence Force. He has been
involved in a number of international conflicts. Ben reaches pension age and
claims the Service Pension. His partner John has also retired. However,
John’s application for a Partner Service Pension is denied because he is
not recognised as Ben’s partner. Ben and John have to rely on John’s
single rate pension of $512.10 per fortnight.
Ben and John are $343.30 worse off per fortnight than
Ben and Lisa despite identical
circumstances.[68]
10.4.2 A
veteran’s same-sex partner cannot access the Utilities Allowance
The Utilities Allowance is payable to a veteran, and
his or her ‘partner’, who is of veteran pension age and is entitled
to receive:
- the Invalidity or Age Service Pension
- a Partner Service Pension
- the Income Support
Supplement.[69]
As discussed above, the same-sex
partner of a veteran will not qualify for any of these payments, so the only
person entitled to the Utilities Allowance in a same-sex couple will be the
veteran him or herself.
The Utilities
Allowance is paid in two instalments a year at a singles’ rate of $52.60
and a couples’ rate of $26.30 paid to each member of the
couple.[70]
Since the singles’ rate is exactly twice
that of the couples’ rate paid to each member of a couple, it makes no
financial difference whether the couples’ rate is paid to both members of
the couple, or the singles’ rate is paid to one member of the
couple.
However, where a couple is separated
due to illness or respite care, each member of a couple is entitled to the
singles’ rate.[71] So an
opposite-sex couple separated by illness receives $52.60 each (a total of
$105.20) per fortnight, whereas a same-sex couple separated by illness only
receives $52.60 in total.
10.4.3 A
veteran’s same-sex partner cannot usually access the Telephone Allowance
The Telephone Allowance may be payable to a partner of
a veteran if the partner:
- receives the Partner Service
Pension[72]
- receives the War Widow/Widower’s
Pension[73]
- is a ‘wholly dependent partner’ of a
deceased member under the Military Compensation
Act[74]
- receives a pension or allowance under the Social Security Act 1991 (Cth).[75]
For
the reasons outlined earlier, the same-sex partner of a veteran will not qualify
for the Partner Service Pension or War Widow/Widower’s Pension or be
eligible for compensation as a ‘wholly dependent partner’ under the
Military Compensation Act. This means that, unlike an opposite-sex partner, a
same-sex partner will only qualify for the Telephone Allowance if he or she is
eligible to receive a pension or allowance under the Social Security
Act.[76]
The
Telephone Allowance is paid quarterly at a base rate of $21.40 and a half base
rate of $10.70.[77]
10.5 Do
veterans’ entitlements laws breach human rights?
This chapter shows that both the Veterans’
Entitlements Act and the Military Compensation Act deny a veteran’s
same-sex partner the entitlements available to a veteran’s opposite-sex
partner. The cause of this discrimination lies in the narrow definitions used in
the legislation.
This discrimination breaches
the right to non-discrimination under article 26 of the International
Covenant on Civil and Political Rights (ICCPR). It also breaches
Australia’s obligations under the International Covenant on Economic
Social and Cultural Rights (ICESCR), which require Australia to
provide social security (including invalidity and survivor’s benefits)
without discrimination (articles 9, 2(2)).
The
Inquiry notes that in 1999 the United Nations Human Rights Committee found that
the Veterans’ Entitlements Act breached article 26 of the ICCPR in the
case of Young v
Australia.[78] The Committee
recommended amendment to the legislation to remedy the breach, but there has
been no change since that case.
The children of
a same-sex couple may have more difficulty in proving their right to
veterans’ entitlements on the death or injury of a lesbian co-mother or
gay co-father. However, the legislation does not deny them access to those
benefits so the Inquiry makes no finding of breach insofar as the laws apply to
the children of same-sex couples.
Nevertheless,
to the extent that a same-sex family may be financially worse-off because of
discrimination, the best interests of any child of that family may be
compromised.
Chapter 3 on Human Rights
Protections discusses these issues in more detail.
10.6 How
should the law be changed to eliminate future breaches?
This chapter describes discrimination against same-sex
couples regarding a range of entitlements available under the Veterans’
Entitlements Act and the Military Compensation Act.
The Inquiry recommends amending the
legislation to avoid future breaches of the human rights of people in same-sex
couples.
The following sections summarise the
cause of the problems and how to fix them.
10.6.1 Narrow
definitions are the main cause of discrimination
Most of the entitlements under the Veterans’
Entitlements Act and the Military Compensation Act are available to the
‘dependant’ of a veteran.
Under
both acts, a ‘dependant’ includes a ‘partner’. Under the
Veterans’ Entitlements Act a ‘partner’ is defined by reference
to a ‘member of a couple’. A person can only be a ‘member of a
couple’ if he or she is of the opposite sex to the other member.
Similarly, under the Military Compensation Act a ‘partner’ is
defined to include someone of the opposite
sex.
As a result of these narrow
definitions, the same-sex partner of a veteran is denied a whole range of
benefits available to an opposite-sex partner during the life, and after the
death, of the veteran.
A
‘dependant’ also includes a child of a veteran. The Veterans’
Entitlements Act and the Military Compensation Act describe a child in a variety
of ways. All of those definitions are sufficiently flexible to take account of a
birth mother and birth father as well as a lesbian co-mother or gay
co-father.
However, the child of a
birth mother or birth father will automatically be included within that
definition, whereas a child of a lesbian co-mother or gay co-father will
generally have to prove the parent-child
relationship.
In the absence of a parenting
presumption in favour of a lesbian co-mother or a successful adoption, a
parenting order from the Family Court of Australia is the most effective way for
a lesbian or gay co-parent to prove a child-parent relationship.
However, for some families seeking
veterans’ support, the cost and time involved in seeking a parenting order
may impose too high a burden. Thus, the child of a veteran lesbian co-mother or
gay co-father may face greater uncertainty in accessing benefits which are
automatically available to the child of a veteran birth mother or birth
father.
10.6.2 The
solution is to amend the definitions and clearly recognise both same-sex parents
of a child
Chapter 4 on Recognising Relationships presents two
alternative approaches to amending discriminatory definitions within federal law
regarding same-sex couples.
The Inquiry’s
preferred approach for bringing equality to same-sex couples is to:
- retain the current terminology used in federal
legislation (for example, retain the term ‘partner’ and
‘member of a couple’ in the legislation)
- redefine the terms in the legislation to include same-sex
couples (for example, redefine ‘member of a couple’ to include a
‘de facto partner’)
- insert new definitions of ‘de facto
relationship’ and ‘de facto partner’ which include same-sex
couples.
Chapter 5 on Recognising
Children sets out how to better protect the rights of the children of
same-sex couples.
Chapter 5 recommends
that the federal government implement parenting presumptions in favour of a
lesbian co-mother of a child conceived through assisted reproductive technology
(ART). This would mean that a lesbian co-mother of an ART child would
automatically be the ‘mother’ of the child (in the same way as the
father in an opposite-sex couple is automatically the ‘father’) and
the child would automatically be a ‘dependant’.
Chapter 5 also suggests that it should be
easier for a lesbian co-mother and gay co-father to adopt a child.
Chapter 5 further recommends the insertion of
a new definition of ‘step-child’ (or ‘step-parent’)
which would include a child under the care of a ‘de facto partner’
of the birth parent. This would make it easier for the child of a lesbian
co-mother or gay co-father to qualify under the definition of
‘dependant’ in the Military Compensation
Act.
Finally, Chapter 5 suggests that federal
legislation should clearly recognise the status of a person who has a parenting
order from the Family Court of Australia. This would mean that gay and lesbian
parents with parenting orders could more confidently assert their rights as a
person ‘who stands in the position of a parent’ of a person who is
‘liable to maintain’ a child.
The
following list sets out the definitions which would need to be amended according
to these suggested approaches.
The Inquiry
notes that if the government were to adopt the alternative approach set out in
Chapter 4, then different amendments would be required.
10.6.3 A
list of legislation to be amended
The Inquiry recommends amendments to the following
legislation discussed in this
chapter:
Military Rehabilitation and
Compensation Act 2004 (Cth)
‘de facto partner’ (insert new
definition)
‘de facto relationship’ (insert new
definition)
‘dependant’ (s 15(2) – amend to clarify
the role of a parenting order and to change the reference to a
‘step-son’, ‘step-daughter’, ‘step-mother’
and ‘step-father’ to ‘step-child’ and
‘step-parent’ respectively. Otherwise no need to amend if
‘partner’ is amended and a lesbian co-mother or gay co-father and
their children may also be recognised through reformed parenting presumptions,
adoption laws or a new definition of ‘step-child’ and
‘step-parent’)
‘eligible young person’ (s 5 – no need
to amend)
‘partner’ (s 5 – amend to include a
‘de facto partner’)
‘step-child’ (insert new
definition)
‘step-parent’ (insert new
definition)
‘wholly dependent partner’ (s 5 – no
need to amend if ‘partner’ is
amended)
Social Security Act 1991 (Cth)
‘de facto partner’ (insert new
definition)
‘de facto relationship’ (insert new
definition)
‘dependent child’ (s 5(2), (4) – amend
to clarify the role of a parenting order; otherwise no need to amend if the
child of a lesbian co-mother or gay co-father may also be recognised through
reformed parenting presumptions or adoption laws)
‘marriage-like relationship’ (s 4(2), (3),
(3A) – replace with ‘de facto relationship’)
‘member of a couple’ (s 4(2)(b) – amend
to include a ‘de facto partner’ and ‘de facto
relationship’)
‘partner’ (s 4(1) – no need to amend if
‘member of a couple’ is amended)
Veterans’ Entitlements Act 1986 (Cth)
‘child’ (s 5F(1) – no need to
amend)
‘child of a veteran’ (s 10 –
amend to clarify the role of a parenting order; otherwise no need to amend if
the child of a lesbian co-mother or gay co-father may also be recognised through
reformed parenting presumptions or adoption laws)
‘de facto partner’ (insert new
definition)
‘de facto relationship’ (insert new
definition)
‘dependant’ (s 11(1) – no need to amend
if ‘member of a couple’, ‘widow’, ‘widower’,
‘non-illness separated spouse’ are amended)
‘dependent child’ (s 5F – no need to
amend if s 5(2), (4) of the Social Security Act 1991 (Cth) is
amended)
‘marriage-like relationship’ (s 11A –
replace with ‘de facto relationship’)
‘member of a couple’ (s 5E(2)(b) – amend
to include a ‘de facto partner’ and replace ‘marriage-like
relationship’ with ‘de facto relationship’)
‘non-illness separated spouse’ (s 5E(1)
– amend to include a ‘de facto partner’)
‘partner’ (s 5E(1) – no need to amend if
‘member of a couple’ is amended)
‘war widow’ (s 5E(1) – no need to amend
if ‘member of a couple’ is amended)
‘war widower’ (s 5E(1) – no need to
amend if ‘member of a couple’ is amended)
‘widow’ (s 5E(1) – amend to remove a
reference to partner of ‘a man’, otherwise no need to amend if
‘member of a couple’ is amended)
‘widower’ (s 5E(1) – amend to remove a
reference to partner of ‘a woman’, otherwise no need to amend if
‘member of a couple’ is amended)
Endnotes
[1] See the following submissions for a discussion on the issue of discrimination in
veterans’ entitlements: Action Reform Change Queensland and Queensland
AIDS Council, Submission 270; Anti-Discrimination Commission of Queensland,
Submission 264; Australian Coalition for Equality, Submission 228; Australian
Federation of AIDS Organisations, Submission 285; Equal Opportunity Commission
of Victoria, Submission 327; Human Rights Law Resource Centre, Submission 160;
Law Institute of Victoria, Submission 331; Tasmanian Gay and Lesbian Lobby
Group, Submission 233; University of Western Australia, Submission
185.
[2] Veterans’ Entitlements Act 1986 (Cth), ss
6-6F.
[3] Military Rehabilitation and Compensation Act 2004 (Cth), s
3.
[4] Veterans’ Entitlements Act 1986 (Cth), s
5E(1).
[5] Veterans’ Entitlements Act 1986 (Cth), s
5E(2).
[6] Military Rehabilitation and Compensation Act 2004 (Cth), s
5.
[7] Veterans’ Entitlements Act 1986 (Cth), s
5E(2)(b)(iii).
[8] Veterans’ Entitlements Act 1986 (Cth), s
11A.
[9] Veterans’ Entitlements Act 1986 (Cth), s
5E(1).
[10] Veterans’ Entitlements Act 1986 (Cth), s
11(1).
[11] Veterans’ Entitlements Act 1986 (Cth), s
5E(1).
[12] Military Rehabilitation and Compensation Act 2004 (Cth), s
15.
[13] For an explanation of these terms see the Glossary of
Terms.
[14] Veterans’ Entitlements Act 1986 (Cth), s
11(1)(d).
[15] Veterans’ Entitlements Act 1986 (Cth), s
5F(1).
[16] Veterans’ Entitlements Act 1986 (Cth), s
10(1)-(2).
[17] Veterans’ Entitlements Act 1986 (Cth), s
10(3).
[18] For further background on parenting orders, see Chapter 5 on Recognising
Children.
[19] Military Rehabilitation and Compensation Act 2004 (Cth), s
15.
[20] For further background on parenting orders, see Chapter 5 on Recognising
Children.
[21] Veterans’ Entitlements Act 1986 (Cth), s
5F(1).
[22] Chapter 9 on Social Security, section
9.2.2.
[23] Military Rehabilitation and Compensation Act 2004 (Cth), s
5.
[24] Military Rehabilitation and Compensation Act 2004 (Cth), s
17(a).
[25] Veterans’ Entitlements Act 1986 (Cth), s
13(1)-(2A).
[26] The Veterans’ Entitlements Act 1986 (Cth), s 30 sets the rates for
pensions; s198 sets out the variation of rates of certain pensions. See also
Australian Government, Department of Veterans’ Affairs, DVA Facts DP60,
War Widow’s/Widower’s and Orphan’s Pensions,
http://www.dva.gov.au/factsheets/, viewed 6 March
2007.
[27] Walter Lee, Submission
250(I).
[28] Jiro Takamisawa, Sydney Hearing, 26 July
2006.
[29]Young
v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000, para
12.
[30] Edward Young, Submission
330.
[31] Veterans’ Entitlements Act 1986 (Cth), s 13(1)-(2A), (4), (6),
(7).
[32] Veterans’ Entitlements Act 1986 (Cth), s
10(1)-(2).
[33] Veterans’ Entitlements Act 1986 (Cth), s 10(3).
[34] Veterans’ Entitlements Act 1986 (Cth), s 198A sets out the
variation of rates of Orphan’s Pension. See also Australian Government,
Department of Veterans’ Affairs, DVA Facts DP60, War
Widow’s/Widower’s and Orphan’s Pension, http://www.dva.gov.au/factsheets/, viewed 5 March
2007.
[35] Veterans’ Entitlements Act 1986 (Cth), s
86(3)-(4).
[36] Veterans’ Entitlements Act 1986 (Cth), pt VII. This payment is
available to a child who is, or was, the child of a
veteran.
[37] Veterans’ Entitlements Act 1986 (Cth), s 100. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts DP60, War
Widow’s/Widower’s and Orphan’s Pensions,
http://www.dva.gov.au/factsheets/default.htm, viewed 6 March 2007, for further
information on the above
benefits.
[38] Veterans’ Entitlements Act 1986 (Cth), s
45A.
[39] Veterans’ Entitlements Act 1986 (Cth), s 45S. The rate is adjusted
in March and September: Australian Government, Department of Veterans’
Affairs, DVA Facts IS22, Income Support Supplement Rates,
http://www.dva.gov.au/factsheets/, viewed 20 February 2007, for payment amounts
current as at 20 February 2007.
[40] Veterans’ Entitlements Act 1986 (Cth), ss 53J-53NA,
98A.
[41] Australian Government, Department of Veterans’ Affairs, DVA Facts BR02,
Payments After Bereavement, http://www.dva.gov.au/factsheets/default.htm,
viewed 13 February
2007.
[42] Veterans’ Entitlements Act 1986 (Cth), ss
53R-53T.
[43] Veterans’ Entitlements Act 1986 (Cth), s
100.
[44] Veterans’ Entitlements Act 1986 (Cth), s 86(1)-(4). However, the
Repatriation Commission can alter the Treatment Principles that set out what
kinds and classes of treatment will or will not be provided for and what
conditions are covered: see Veterans’ Entitlements Act 1986 (Cth),
ss
90-90A.
[45] Military Rehabilitation and Compensation Act 2004 (Cth), ss 5, 17, 284.
See also Australian Government, Department of Veterans’ Affairs, DVA
Facts HSV60, Repatriation Health Card – For All Conditions (Gold), http://www.dva.gov.au/factsheets/default.htm, viewed 5 March
2007.
[46] The person may also be eligible to claim payments and allowances available under
the Veterans’ Entitlements Act 1986 (Cth).
[47] Military Rehabilitation and Compensation Act 2004 (Cth), ss 233-238. The
amount is indexed under the Military Rehabilitation and Compensation Act
2004 (Cth), s 404. See also Australian Government, Department of
Veterans’ Affairs, DVA Facts MRC14, Compensation for Dependants –
Wholly Dependant Partners of Deceased Members and Former Members,
http://www.dva.gov.au/factsheets/default.htm, viewed 26 March
2007.
[48] Military Rehabilitation and Compensation Act 2004 (Cth), ss 239-241. The
amount is indexed under the Military Rehabilitation and Compensation Act
2004 (Cth), s 404. See also Australian Government, Department of
Veterans’ Affairs, DVA Facts MRC14, Compensation for Dependants –
Wholly Dependant Partners of Deceased Members and Former Members, http://www.dva.gov.au/factsheets/default.htm, viewed 26 March
2007.
[49] Military Rehabilitation and Compensation Act 2004 (Cth), ss
242-244.
[50] Military Rehabilitation and Compensation Act 2004 (Cth), s
284(1).
[51] Military Rehabilitation and Compensation Act 2004 (Cth), ss
300-303.
[52] Military Rehabilitation and Compensation Act 2004 (Cth), ss
245-249.
[53] See Australian Government, Department of Veterans’ Affairs, DVA Facts
MRC14, Compensation for Dependants – Wholly Dependant Partners of Deceased
Members and Former Members, http://www.dva.gov.au/factsheets/default.htm,
viewed 26 March
2007.
[54] Military Rehabilitation and Compensation Act 2004 (Cth), s
5.
[55] Military Rehabilitation and Compensation Act 2004 (Cth), ch 5, pt
3.
[56] Military Rehabilitation and Compensation Act 2004 (Cth), ss
251-252. The
amount is indexed under the Military Rehabilitation and Compensation Act
2004 (Cth), s 404. Australian Government, Department of Veterans’
Affairs, DVA Facts MRC15, Compensation for Dependants – Eligible Young
Persons, http://www.dva.gov.au/factsheets/default.htm,
viewed 16 February 2007. This rate was current as at 31 October
2006.
[57] Military Rehabilitation and Compensation Act 2004 (Cth), ss 258-259.
Australian Government, Department of Veterans’ Affairs, DVA Facts
MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,
viewed 16 February 2007. This rate was current as at 31 October
2006.
[58] Military Rehabilitation and Compensation Act 2004 (Cth), ss 253-254. See
also Australian Government, Department of Veterans’ Affairs, DVA Facts
MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,
viewed 16 February
2007.
[59] Military Rehabilitation and Compensation Act 2004 (Cth), s 284(2). See
also Australian Government, Department of Veterans’ Affairs, DVA Facts
MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,
viewed 16 February
2007.
[60] Military Rehabilitation and Compensation Act 2004 (Cth), ss 300-303. See
also Australian Government, Department of Veterans’ Affairs, DVA Facts
MRC15, Compensation for Dependants – Eligible Young Persons, http://www.dva.gov.au/factsheets/default.htm,
viewed 16 February
2007.
[61] Veterans’ Entitlements Act 1986 (Cth), ss
36-37.
[62] Veterans’ Entitlements Act 1986 (Cth), s
38(1).
[63] Veterans’ Entitlements Act 1986 (Cth), s 38N. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts IS01, Service
Pension Overview, http://www.dva.gov.au/factsheets/default.htm, viewed 6
March 2007.
[64] Veterans’ Entitlements Act 1986 (Cth), sch 6. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts IS45, Partner
Service Pension, http://www.dva.gov.au/factsheets/default.htm, viewed 6
March
2007.
[65] Veterans’ Entitlements Act 1986 (Cth), sch 6. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts IS45, Partner
Service Pension, http://www.dva.gov.au/factsheets/defualt.htm, viewed 6
March
2007.
[66] Veterans’ Entitlements Act 1986 (Cth), sch 6, ss A2, C10, C11, E3,
F2. See also Australian Government, Department of Veterans’ Affairs, DVA Facts IS01, Service Pension Overview, http://www.dva.gov.au/factsheets/default.htm, viewed 16 February
2007.
[67] Speaker, Daylesford Forum, 28 September
2006.
[68] Once John turns 65 he may be eligible for the Age Pension at the singles’
rate. At this point Ben and John will be $168.80 better off per fortnight than
Ben and
Lisa.
[69] Veterans’ Entitlements Act 1986 (Cth), s
118OA.
[70] Veterans’ Entitlements Act 1986 (Cth), s 118OC. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts IS16, Utilities
Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March
2007.
[71] Veterans’ Entitlements Act 1986 (Cth), s 118OC. See also Australian
Government, Department of Veterans’ Affairs, DVA Facts IS16, Utilities
Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March
2007.
[72] Veterans’ Entitlements Act 1986 (Cth), s
118Q(1).
[73] Veterans’ Entitlements Act 1986 (Cth), s
118Q(2).
[74] Military Rehabilitation and Compensation Act 2004 (Cth), ss
245-249.
[76] Note that a partner may also be eligible if they themselves are a veteran and in receipt of the Service Pension.
[77] Veterans’ Entitlements Act 1986 (Cth), s 118S. The rate of
Allowance payable depends on which entitlements the person and their partner are
receiving. For a full list of Telephone Allowance rates and eligibility for each
amount see Australian Government, Department of Veterans’ Affairs, DVA
Facts IS13, Income Support Allowances – Telephone Allowance, http://www.dva.gov.au/factsheets/default.htm, viewed 6 March
2007.
[78]Young
v Australia, (941/2000) UN Doc.
CCPR/C/78/D/941/20