I commend the Government for the passage of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008, but am concerned about one glaring injustice the legislation has inadvertently brought about – the removal of age and disability pensions and other allowances and benefits from a class of persons who will suffer immeasurably as a result.

I understand that this is the first amendment to the Social Security Act in over 15 years that has removed a pension or benefit from a class of person and not grand-parented those already on a pension or benefit.

Older gay men and lesbians have suffered long-standing inequality, particularly in relation to family law, health insurance, taxation, property rights, access to employer benefits, access to insurance and superannuation, death and disability entitlements, compensation, laws of succession, and employer benefits for spouses.

Social Security policy has evolved in response to social change, allowing for savings provisions for those who have been historically disadvantaged. In many ways, the situation of gay and lesbian couples now affected by Act is analogous to that faced by women during the phasing out of Social Security payments targeting women, due to the changing role of women in Australian society.

Many older people in same-sex relationships will be precluded from Social Security entitlements under pension and allowance income and assets tests due to their partner’s income and assets, despite the fact that historically they have had no or limited rights to other entitlements (including taxation, employer, disability, superannuation and insurance entitlements) because their status as a partner was not recognised. Given that the raft of reforms the Government has now introduced has come too late to affect their accrual of such entitlements; it is unjust and unfair that older people now bear the effects of the disadvantageous aspects of the reforms.

Financial planning and accruing assets to fund retirement is a long term strategy. Older people in or nearing retirement, now have little or no chance to rearrange finances. They have not had the benefits of relationship recognition in their working life to assist in accruing assets & now the rules have been shifted under their feet in retirement or at the 11th hour. This is unfair and unjust as many of those effected have no capacity to pick themselves up and move on. There is not even any phase in period.

This is in marked contrast to the situation when many Social Security payments for women were phased out, when Social Security legislation in the past also caught up with social change.

When new claims for Widow Pension and Partner Allowance were made unavailable, those payments were retained for older widows, divorcees and separated women whose adult life was one of financial dependency on their partner, with no or limited accrual of superannuation entitlements during periods of employment.

Similarly, when the Age Pension eligibility age for women was raised from 60 years to 65 years in 1995 in response to changing societal values about women’s increased labour market participation and reduced dependence on their partners, that modest increase in age eligibility was to be phased in over some 20 years.

The last reforms to the Disability Support Pension (15 to 30 hours eligibility) grand parented those pensioners eligible under the 15 hour test.

There is a particular need for savings provisions for older people who would be adversely affected by the Social Security amendments. Members of same sex couples have lived until now with certain societal limitations and their own particular expectations. That is vastly different from a person in their twenties who may now enter into a gay or lesbian relationship expecting equality before the law, and acknowledging their relationship’s ‘de facto’ status and presenting the relationship as such to family, friends, colleagues, employers, the Australian Tax Office, their superannuation fund, Medicare, etc.

There are also a number of older gay men in particular who are on DSP because of chronic illness associated with HIV. Many of these people take a number of medications to stay alive. The loss of the DSP and the healthcare card could well be a death blow to some force many with chronic conditions further into poverty and have even more adverse health outcomes.

Older gay and lesbian couples have lived and worked anticipating their relationships will not be recognised under Social Security law and without any expectation of equality before the law generally. They have had no expectation of forced financial inter-dependency via recognition of their couple status under Social Security law. To apply Social Security means tests to people who have long been disadvantaged before the law is effectively doubling their experience of discrimination.

There is no good social policy reason for the government to take this approach and to effectively punish those with chronic illnesses or older gay and lesbians in or approaching retirement. This is not equality for older same sex couples: this is discrimination twice over.

I also note that Human Rights and Equal Opportunity Commission report Same-Sex: Same Entitlements and the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Bill recommended that ” the Government give further consideration to what administrative or regulatory mechanisms may be available to appropriately manage the impact of the reforms on same-sex couples who may have benefits reduced under the changes”.

Cabinet chose to not give any further consideration to those issues and recommendations, particularly for older people, in what would be seen by many as a spiteful and mean-spirited act.

Mechanisms need to be implemented for people older than 55 in same sex relationships to not be regarded as de facto couples for Social Security purposes.