Wide-ranging reforms to Federal laws, including immigration, citizenship, taxation, superannuation, social security and family assistance laws, will significantly impact people in same-sex relationships and their children, following the introduction of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (the Act) on 9 December 2008. Implementation of the reforms is staggered, and immigration reforms will take effect on 1 July 2009.
The Act ensures that same-sex couples and their families receive the same treatment under Commonwealth laws as opposite-sex de facto couples. Our
Superannuation update of 18 December 2008 outlined how the reforms impact on superannuation and tax law. This update focuses on the impact of the reforms on people who are applying for Australian visas or Australian citizenship.
How do the reforms affect people who already hold an Australian visa, or people intending to apply for an Australian visa?
Amendments to Immigration laws giving effect to the Act will commence on 1 July 2009. These amendments will mean that:
- same-sex partners will be eligible to be included as a dependent 'member of the family unit' for a greatly expanded range of temporary and permanent visas. Currently same-sex partners can be included as a dependent family member in only a very limited range of visas (for example the 457 temporary work visa, and the General Skilled Migration visas). The majority of visas only recognise de jure (married opposite sex) spouses or opposite-sex de facto partners of the primary applicant as dependent family members. The reforms mean that a person who applies as the primary applicant for any visa which allows the inclusion of dependent family members, will be able to include their same-sex partner in that application.
- Employers should note that, in relation to employer sponsored visas, these changes mean that same-sex partners can be included in the full range of temporary and permanent employer-sponsored visas. This removes the current anomaly whereby a same-sex partner can be included as a dependent for a temporary 457 visa, but not for a permanent Employer Nomination Scheme visa;
- same-sex partners will continue to be able to apply as the primary applicant for a Partner visa if they are in a de-facto relationship with an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. The current 'Interdependent' partner visas (subclasses 310, 110, 826 and 814) will be abolished and same-sex partners will apply instead as de facto partners. In practice this is a change only to the visa type, and does not substantially change a person's access to or eligibility for a visa on these grounds. Immigration laws in respect of the definition of spouse, de facto partner, dependent and other definitions will be amended to take account of same-sex partners and changes are expected to be made to forms and visa classes shortly; and
- a broader range of parent-child relationships will be recognised to take account of children conceived through artificial conception procedures and children born under certain surrogacy agreements, as defined under the Family Law Act 1975.
Applications lodged up to and including 30 June 2009 will continue to be processed under existing legislation. It remains unclear whether visa applicants who have lodged an application prior to 1 July 2009, which has not been finally decided after the commencement of the new legislation, will be able to add same-sex partners or children recognised under the new provisions to their application after 1 July 2009. Further details are expected to be made available closer to the implementation date.
People with same-sex partners who intend to lodge a visa application which currently does not allow for the inclusion of same-sex partners should obtain advice as to whether they can afford to delay lodging a visa application until 1 July 2009, or whether their circumstances require earlier lodgement.
How do the reforms affect people intending to apply for Australian citizenship?
Amendments made to the Australian Citizenship Act 2007 took effect on 15 March 2009. These amendments provide that:
- persons who are a same-sex partner or surviving same-sex partner of an Australian citizen, may now have periods spent overseas with their partner count as periods spent in Australia in order to meet the residence requirement for Australian citizenship. Previously, surviving same-sex partners could not apply for this discretion; and
- children born as a result of artificial conception procedures or certain surrogacy arrangements under a prescribed law of the Federal or of a state or territory, may access rights of citizenship not previously available to such children, including automatic acquisition of Australian citizenship by birth and citizenship by descent in certain cases. The requirements are complex and advice should be sought in such circumstances.
Conclusion
Hall & Wilcox's
Migration Services team can provide further advice about visas for Australia and Australian citizenship. Our experienced practitioners in complementary specialty areas of the firm, including taxation, superannuation and family law, can assist with further advice about how the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 impacts on other areas of the law.
For further information, please contact: