'It's time' for positive change

Not that Andrew and Bill Whitbread-Brown knew it was legal history at the start.

Their case against health insurer NIB was a significant milestone in the fight for legal recognition of gay and lesbian relationships in Australia, but the two men weren't aware how significant until their story made news around the country.

"I think when we saw it on the front page of a newspaper it was like 'Oh my Lordie, this is bigger than we thought'," Andrew says.

"We thought it might have been a little news article in the Newcastle Herald because we were from Newcastle, but it was clear it was bigger than that."

They are talking this week as federal politicians play catch-up with the community and count the numbers for an historic marriage equality vote.

It is nearly 20 years since the Whitbread-Browns put their house on the line to have their relationship recognised by a health insurer, and 25 years since they became partners.

They're older than their newspaper photographs from 1995, and greyer, and they've proudly added the titles "Pop" and "Granddad" to their achievements.

They were also married in Canada in 2007 at a time when Australia showed it was a long way from recognising marriage equality, and the then Howard government refused to even consider reports showing widespread bureaucratic discrimination in the treatment of people in gay and lesbian relationships.

This week Andrew and Bill Whitbread-Brown - still together after all these years and still no threat to the marriages of the heterosexual couples around them - have joined their voices to the chorus in the Australia community saying "It's time".

"It's sad that it's taken until now, and politicians are just catching up with the community, but I look forward to the day when people aren't talking about gay marriage, but just marriage; when we're just two gays who are married, rather than two men in a gay marriage," said Bill.

Making history in 1995 was as simple as questioning their annual NIB bill.

The two were long time NIB members who had each paid the single rate.

When Andrew added his son, then aged 1, and the two men applied for a family rate, they were advised over the counter that if Bill was a woman they would get family cover, but because he was a man, they couldn't.

It meant the difference between paying $2745 per year, or $1830.

The two men could have changed health insurers. A subsequent Equal Opportunity Tribunal case heard that other major health insurers already offered family cover to people in gay and lesbian relationships.

"We could have gone to HCF, but we had been long-term NIB customers," said Andrew. "We needed family cover, we applied for family cover, and it just wasn't right that if Bill had been a woman we would have had to pay so much less per year."

They complained to the Anti-Discrimination Board.

"The normal process is that conciliation between two parties is tried, but NIB declined," said Andrew.

They took their complaint to the Equal Opportunity Tribunal.

"We didn't think at the time that it would end up in the Supreme Court. There was no guarantee that we'd win, but we felt confident, and we had great support from our families, friends and the gay community in Newcastle."

In the tribunal the NIB argued the case was not about the make-up of a family, but the definition of a dependent.

"If homosexual partners are considered partners, then brothers or male friends who had no sexual relationship but pooled expenses could be regarded as dependents for the purposes of eligibility for family cover," NIB told the tribunal.

"If we turn a blind eye to this, all the other members of the fund are being discriminated against."

The then NSW Attorney-General Jeff Shaw said he would intervene in the case after NIB argued it could not use its discretionary power under the rules to extend cover to the two men because the Federal Health Act requires an insurance company to abide by its rules.

NIB argued the provision overrode the NSW Anti-Discrimination Act.

But Mr Shaw said NSW would intervene "to defend the State anti-discrimination laws and to oppose the notion that those laws have been overridden by Federal laws".

The tribunal rejected NIB's argument.

"It is not the fund rules of the NIB which are themselves unlawful under the State legislation, but rather the conduct and decisions of NIB pursuant to discretions granted or reserved to itself which are unlawful," the tribunal found.

It ordered NIB to admit Andrew and Bill Whitbread-Brown as members with family status within 14 days, and repay money they had overpaid since lodging their case in 1993.

For nearly a month the couple accepted congratulations from the community, and held their breath pending an appeal to the NSW Supreme Court by the health fund.

The appeal was filed on one of the final days of the 30-day appeal period.

"It was a very scary time when they appealed because if we lost we would have lost our house," Bill said.

But not fighting the appeal would have been an affront to their relationship.

"Our personal costs were about $15,000. The Newcastle gay committee raised about $4000 to help us, and the rest we found ourselves."

The NSW Supreme Court rejected NIB's arguments in November 1995 and confirmed the rights of gay families to equality when seeking health cover.

The University of NSW faculty of law provided representation for the couple.

"We decided that it was essential to ensure that NIB's Supreme Court appeal be vigorously opposed," their lawyer John Godwin said.

"The case raises important human rights issues and comes at a critical time in law reform for gay and lesbian equality.

"I'm glad that the court has demonstrated that the law can keep up with progressive shifts in community attitudes."

Andrew and Bill Whitbread-Brown held their breath for another 30 days while others celebrated the win.

"We were surprised when they appealed to the Supreme Court, so we were worried they might want to take it all the way to the High Court," Andrew said.

NIB did not appeal.

"We waited until 5pm on the 30th day until we celebrated, although it was a bitter-sweet celebration because we went to the funeral of a friend on that day," Bill said.

They received a lot of support in Newcastle for their stand.

"I think it's because Newcastle people love battlers who stand up to big corporations or institutions and win, and I think they were also supporting us because we were a couple who were being discriminated against," Bill said.

They hope that before the year is out they will be able to register their Canadian wedding documents with NSW Births Deaths and Marriages, have them stamped, and emerge as just another married couple about to celebrate their wedding anniversary on October 20.

"People are just waiting for it to be legalised.

"The doomsdayers are few and far between," said Andrew.

"It's time."