Legislation has finally forced Centrelink to recognise same-sex couples, but Alex Taylor investigates the controversial decision to not include a grandfather clause in the changes.

Image: Ludovic Bertron

Gay pensioners continue to battle anger and confusion more than one month after the July 1 introduction of legislative changes prompting Centrelink to recognise same-sex couples.

Individual age and disability pensioners in committed same-sex relationships are now eligible for a couples’ rate, which for some reduces individual pensions by $200 a week.

Those hit by the reductions are critical of the Federal Government’s decision not to include a ‘grandfather clause’, an exception that would allow the old law to continue to apply to pre-existing situations, to cushion rate drops through a gradual implementation of the changes.

“I have been on a pension since 1995: gay people in our age group have suffered discrimination for years and years and have arranged [their] finances around the old system,” said Kevin*.

In declaring his relationship to Centrelink, Kevin would have been left with a “distressing” $63 weekly pension.

Prior to July 1, he feared that he and his partner would have to sell their home of 15 years to fund investments for their survival.

Kevin says that they have since “separated because of the changes”.

Kevin and other pensioners in same-sex couples are upset that they had less than eight months from the passing of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 to rearrange their finances in preparation for the July 1 changes.

Jane’s* partner has been on a disability pension for the last 20 years, which will fall from $15,000 to just $5,000 a year.

Jane’s salary is limited by her partner’s health circumstances – she can only work part-time whilst helping her partner at home and taking her to the hospital – and the “$200 a week [loss] from our joint income means that paying the bills [is] so much harder.”

“A phase-in would certainly have helped, although ideally we would have stayed on the old system for the rest of our lives [under a grandfathered pension system],” said Jane.

“I’ve always said, yes, give me the rights and the equality and I’ll take on the responsibility, but I’m not quite sure how we’re going to get by now,” she said.

Pensioner and long-time gay rights activist Mannie de Saxe is critical of the lack of an accompanying grandfather clause to the changes impacting same-sex couples, contrasting it with the gradual phase-in proposed with the recent Federal budget’s planned general retirement age hike from 65 to 67 years in eight years.

But expert on legislation affecting same-sex couples Professor Jenni Millbank of the University of Technology, Sydney says it would have been difficult to include a grandfather clause because the social security changes occurred as part of expanding the definition of ‘de facto relationships’ to include same-sex couples under all Federal law.

Professor Millibank says that the changes largely improve gay couples’ access to superannuation and health care.

“Here the definition of a relationship changed for all federal law, not just one benefit, so in my view it would be very hard if not impossible to, say, treat a gay couple as single for the aged pension but treat them as a couple for tax, superannuation, Medicare, aged care rebates and so on,” said Professor Millbank.

Comsuper Action Committee Convenor Dr John Challis has been an activist for legislative equality in superannuation for same-sex couples for more than 20 years and was part of discussions with the Attorney-General for the planned legislative changes.

He strongly endorses the wider social security changes benefiting same-sex couples’ equal access to superannuation.

Dr Challis says that in order to exempt current pensioners in same-sex couples from impacted by the changes, the government would have had to add an individual clause, the wording of which would have singled out same-sex pensioners.

“My guess is that the Government wasn’t prepared to introduce such an amendment to the pension law because it would be seen to be giving gay couples entitlements which heterosexual de facto pensioner couples could not receive,” said Dr Challis.

Dr Challis is critical of the gay and lesbian lobby groups for “unduly raising pensioners’ expectations” of a grandfather clause.

“I appreciate that elderly gay pensioner couples could find it difficult to understand the difference between changing definitions in general laws and amending particular laws, and the gay lobbies haven’t given them much help to understand these distinctions… [but] being equal means being treated equally: we can’t pick and choose.”

On the one month anniversary of the changes, speakers at the National Day of Action for Same-Sex Marriage rally in Sydney on August 1 called attention to the specific plight of pensioners under the changes, calling for the Federal government to implement a grandfathering system.

*Name changed at the request of interviewee