'It's bizarre': Calls for 'discriminatory' law which penalises female earners and stay-at-home dads to be re-examined

 When Eleanor Parsons fell pregnant with her first child last year, she and her husband Ben were busy making plans to share the care of their daughter.

"We wanted equality — I was going to have the first three months off work, and then Ben would take the next three months to be her primary carer," Ms Parsons said.

The Queensland couple's plans were thrown a curveball, however, when Ms Parsons discovered an "infuriating" inequality which lies at the heart of the Federal Government's paid parental leave scheme.

Only the birth mother's income is means tested to assess for eligibility.

Currently, if a mother earns more than $150,000 a year, neither she nor her partner is eligible for Parental Leave Pay – which amounts to 18 weeks' pay at minimum wage, or around $13,900 before tax.

The birth father, meanwhile, could take home a salary of millions and the mother will still qualify for Parental Leave Pay, provided her income is below the $150,000 cap.

Having left a corporate job before the birth of her daughter, Ms Parsons said a lump sum payout of long service leave and annual leave put her just above the $150,000 income cut-off.

Meanwhile, her husband, who works as a CEO in a climate advocacy charity, earns well below the threshold.

If their incomes were reversed, they would be eligible for parental leave pay.

"At first, I thought there must be some other type of assessment criteria that made us eligible," she said.

"Then I started talking with friends who had been in a similar situation who had got it where their husbands earned a lot.

"It makes me so angry, and it's bizarre.

"The whole point of the paid parental leave act is to encourage women to take time out of the workforce, compensate them and support them to care for their children - but the result is the opposite."

Ms Parsons, who is also a part-time post graduate law student, was so incensed by the situation that she lodged a complaint against Centrelink with the Human Rights Commission.

However, in a reply to Ms Parsons, the commission said there was little it could do as the government was acting within the law according to the Parental Leave Act, which was passed in 2010.

Unwilling to give up, Ms Parsons this week wrote to Federal Attorney General and former minister for women Michaelia Cash calling on her to refer the Parental Leave Act to the Parliamentary Joint Committee on Human Rights for review.

As Attorney General, it is within Ms Cash's powers to ask the committee to hold an inquiry into laws or proposed legislation, as she did last week with the government's religious discrimination bill.

"I would like an independent, bipartisan review of the Parental Leave Act," Ms Parsons said.

"I think it will show that it imposes a set of criteria on women that it does not impose on men, and therefore, it is objectively discriminatory."

A legal form of discrimination

Associate Professor Belinda Smith is a discrimination law expert from Sydney University.

Dr Smith told 9News.com.au the law in this case was discriminatory.

"This is clearly discrimination in the sense of somebody is being treated less favourably than someone of a different sex because of their sex," she said.

However, challenging the law under the Sex Discrimination Act would likely be problematic because there were exceptions for some areas of social security, and the Parental Leave Act would almost certainly override it anyway because it was the more recent piece of legislation, Dr Smith said.

But the legislation ought to be amended because it ran contrary to gender equality principles, Dr Smith said.

"We are never going to have gender equality of work unless we have gender equality of care, and this negates this quite seriously and starkly.

"The whole act is called the Paid Parental leave Act and then we say only mothers can mother. It is just outrageous.

"Men's entitlement should be as high as women's and they should be eligible on their own income."

Proposed fix voted down

South Australia's Centre Alliance Senator Stirling Griff has put forth amendments to the Parental Leave Act in parliament's Upper House three times which would fix the anomaly, most recently in September.

The amendments were supported by Labor and the Greens but ultimately voted down by the Coalition and One Nation.

"The amendments would have brought the Paid Parental Leave Scheme into the modern era," Mr Griff said.

"Modern parents don't define themselves as primary or secondary carers and neither should the legislation that supports and regulates their family life."

Costings from the Parliamentary Budget Office in 2019 showed the amendments would cost about $3 million in the first year.

Mr Griff said he supported Ms Parsons' calls to have the issue examined by the Joint Parliamentary Committee on Human Rights.

Medical physicist Leah Biffin says the government's paid parental leave rule goes against its efforts to encourage women in science. (Supplied: Leah Biffin)

Melbourne medical physicist Leah Biffin is another mother who would like to see the government fix the inequalities in its parental leave scheme.

Back in 2018, Ms Biffin wrote to then Minister for Women Kelly O'Dywer to protest the unfairness of the legislation.

Now, three years later, Ms Biffin is planning another child, and is faced with the same situation of not being eligible for Parental Leave Pay.

"I am a woman in STEM, a physicist, fortunate to be well paid," she said.

"My husband is self-employed on very low income.

"He was not able to get any support to be a stay-home dad, while a couple in the same situation with genders reversed would have access without question," she said.

"It made me feel that his decision to give up his job and be that much-vaunted stay-at-home dad was ignored."

Ms Biffin said she took the trouble to go and read the legislation herself.

"I have to admit to being a bit floored when I read it. I reread it and tried to work out how this wasn't literally gender discrimination. And it was, so I just couldn't believe that that was actually an Australian law," she said.

Ms Biffin said one of her male colleagues who was doing the same role as her recently became a parent and his family was eligible because his wife was the lower income earner.

A far fairer way to assess eligibility would be on family income, as is the case currently with the childcare subsidy, which tapers off before reaching zero at a family income of $355,000, Ms Biffin said.

"I understand there are other families who perhaps need government support more than us.

"For me, I would be happy for it to be assessed on family income. It's not about me getting access as much as it is about there being equitable access for everyone."

Ms Cash is yet to respond to a request from 9news.com.au for comment.

A spokesperson for Social Services Minster Anne Ruston said: "The purpose of the PPL Scheme is to support women as they rest and recover following the birth of their child and to achieve equality in the workforce by promoting a continued connection to their employment before and after having children."

"The Government's Paid Parental Leave income test is based on the mother's income only, rather than the alternative of mothers being precluded from the scheme purely on the basis of their partner's income or joint family income."

Recent reforms had made it possible for parents to split the 18-weeks paid leave between them, providing they met the income test. the spokesperson said.