Nicola Roxon (Gellibrand, Australian Labor Party, Shadow Minister for Health) Share this | Hansard source

I rise to speak on the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. I would like to indicate at the outset that Labor supports the bill—as far as it goes—as it appears to be a perfectly sound and uncontroversial piece of legislation and I know that federal magistrates have been concerned to have it attended to for a number of years. However, I would like to flag Labor’s concern that, once again, persons in same-sex de facto relationships are being shortchanged by the government, despite promises made time and time again by members of the government that this will be fixed in an orderly way. In fact, the bill makes things slightly worse for people who are in same-sex de facto relationships. The bill as it stands not only fails to attend to and address existing discrimination against same-sex de facto couples but also introduces a new form of discrimination against them by denying same-sex partners of federal magistrates the same rights to death benefits that spouses and now even heterosexual de facto partners are being given.

I will foreshadow now that Labor will in the other place be moving amendments which will seek to address this inequity that is presently in the bill. I will come back to that matter in a moment, but firstly I would like to give a brief overview of the bill. The bill has a twofold purpose: it seeks to enact a pension scheme for magistrates who are no longer capable of doing their job for medical reasons and it updates the provisions for magistrates’ death benefits.

Turning first to the bill’s disability pension scheme, this bill enacts a pension scheme for federal magistrates who are no longer capable of doing their job for medical reasons, allowing magistrates to retire due to ill health and to receive a payment. This provision would make the position of federal magistrates more consistent with other federal judicial officers. At the moment, federal magistrates operate under a separate scheme to the pension scheme that exists for other judicial officers under the Judges Pensions Act 1968, which I note is scheduled for amendment during this sitting period. Federal magistrates receive a superannuation fund or retirement savings account to which the Commonwealth contributes.

Currently, if a federal magistrate retires before the age of 65, they are not eligible to receive a pension. This creates an incentive for federal magistrates to continue to work, even if illness or disability is preventing them from effectively performing their job. Obviously, that is not desirable for the administration of justice and the proposed legislation will alter this situation, allowing a federal magistrate who retires for reasons of illness or disability to have access to a continued source of income via the judicial pension scheme.

Specifically, the scheme enacted by this bill will allow a magistrate who retires to request, post retirement, that the Attorney-General certify that their retirement was due to permanent disability or infirmity. This is modelled on the process that occurs for other federal judicial officers under the Judges Pensions Act. A refusal by the Attorney-General to certify would be appealable to the Administrative Appeals Tribunal. If the request is granted then the federal magistrate in question would be eligible to receive a pension of 60 per cent of a federal magistrate’s salary until they reach the age of 65. They would continue to be eligible to receive superannuation contributions from the Commonwealth until that age as well.

Labor supports this provision not only because it brings federal magistrates into line with other federal judicial officers but also because it removes the incentive for federal magistrates to continue on in a position after ill health or disability begins to affect their performance. Given the difficulties in and restrictions on removing judges on the grounds of poor health—difficulties and restrictions which are there for other important reasons—this is a sensible option. It will help to maintain the high standard of the Australian judiciary.

As I said at the outset, this bill also updates the provisions for magistrates’ death benefits, bringing them more closely into line with those of other judges. The new provisions would allow lump sums for death benefits to be paid to eligible spouses and eligible children if a magistrate dies before the age of 65. These payments would be equal to the superannuation contribution that a federal magistrate would have received had they lived to that age. Magistrates who retired on the disability pension scheme established by this bill would also be eligible for death benefits.

A point that is contained in the bill before us that I want to bring to the attention of the House is that the bill will extend death benefits not only to spouses in a marital relationship but also to heterosexual de facto couples. Yet the bill will not extend death benefits to same-sex de facto couples. This bill, once again, highlights how ludicrous and inconsistent it is to continue to refuse access to these types of benefits to same-sex de facto couples. I note, for example, that same-sex de facto couples are now included under the Retirement Savings Accounts Act 1997 under the definition of an interdependency relationship. However, this bill seems to be a step back from this position.

We cannot understand what the government’s rationale could possibly be for continuing to exclude same-sex de facto couples, particularly when the Attorney, on a number of occasions in the past few years, has promised that the government is working through this in a methodical way. I know the member for Leichhardt, the member for Wentworth and others have, at times, argued within government ranks for these changes. But we do not see any action being taken—even when an opportunity like this presents itself. It could be done in a piece-by-piece way, if the government is not prepared to make more comprehensive changes—changes which Labor has committed itself to—in terms of having equality between different de facto relationships.

As I said at the outset, I can foreshadow that Labor will be moving amendments in the Senate to provide that same-sex de facto couples can access these benefits on the same grounds as heterosexual de facto couples. I hope that the government will support this amendment, and I call on those in the coalition ranks who share our view that this is important, as a change that needs to be made consistently through a range of legislation, to urge their government to accept this suggestion.

Labor will be moving amendments to remove discrimination because there is simply no rationale for continuing to refuse access for these benefits to same-sex couples. The logic behind the payment of a spousal death benefit to a spouse is quite simple. These are benefits in recognition of the immense work and contribution that federal magistrates put in during their tenure, and it is a payment made to ensure that their partners are not left high and dry in the event of their death. We can see no logical reason why payment of benefits to spouses after death should not be extended to include same-sex de facto partners. As I said earlier, the bill already includes heterosexual de facto partners. Simply put, the contribution of a federal magistrate in a same-sex relationship is the same as that of a married federal magistrate, yet the legislation as it stands does not allow for a death benefit to be paid to their spouse.

To be perfectly frank, it is about time that Australian society extended these benefits to persons in same-sex relationships. There is no longer any argument against the extension of these benefits, and, as everyone in this House should know, the issue of the legality of homosexuality and such relationships has been well and truly resolved. It is hard to believe that it is over a decade since the Keating government passed the Human Rights (Sexual Conduct) Act 1994, which overrode Tasmanian laws outlawing homosexuality. The debate on this matter is well and truly settled. And, as I have said, Labor has committed to a comprehensive plan for removing discrimination between de facto heterosexual couples and de facto same-sex couples.

Under the Howard government we have had a decade of inaction in respect of the removal of discrimination against Australians in same-sex relationships. The enormity of this discrimination was made abundantly clear in the recent report of the Human Rights and Equal Opportunity Commission entitled, Same-sex: same entitlements. That report found a total of 58 pieces of legislation which discriminated against same-sex couples. With this legislation, I believe the government is hoping to make that total 59 pieces of discriminatory legislation.

In some cases, of course, that discrimination may be beneficial. Some benefits are reduced where a person is living in a marriage-like situation with a person of the opposite sex and this does not have the same impact for same-sex de facto relationships. In those limited circumstances, some same-sex couples actually get a financial advantage out of the discrimination, but for the most part they are denied the benefits and certainly the recognition which are provided to heterosexual de facto couples. As I said, the shadow Attorney-General, Senator Ludwig, will be moving amendments in the Senate to remove this discrimination.

I hope that the government will support these amendments, but I must say that I do not hold out any great hope. The government has previously indicated in media releases that it will support if not these specific amendments then certainly some of these types of measures, and I hope that those pledges translate into Liberal and National Party support for our amendments. I draw the attention of the House to the Attorney-General’s media release of 21 June this year in response to the HREOC report, in which he said:

In connection with interdependent relationships, including same-sex relationships, the Government will consider making further changes to the relevant legislation on a case-by-case basis.

This case is before the parliament. It can be done now. It does not require any extra action. It will not have any extra impact on other pieces of legislation. It seems to me that if the Attorney-General is going to stick to his word, he should support our amendments when we move them in the Senate. It is a case that is about as clear-cut as it gets, and the clear benefit being denied to same-sex couples in de facto relationships is unwarranted.

We also foreshadow that we will be moving two additional amendments in the Senate. These amendments will provide for federal magistrates to be entitled to apply for a certificate of impairment before retirement rather than afterwards and also provide for the certificate to be issued by a panel of doctors rather than the Attorney-General. These are two common-sense amendments which will provide greater security to federal magistrates who are contemplating retirement and will provide for a panel with greater expertise in these matters to be able to make judgements on whether or not a federal magistrate can continue to work. Of course, it will also remove any suggestion of political interference. Again, I hope these amendments will receive government support.

I would like to address one more issue. It is an issue which it appears that the government has addressed partly but not completely. The bill as it stands without amendments would effectively allow the various benefits up until the age of 65. So a federal magistrate could apply for a disability pension up until the age of 65 and their spouse would be eligible for a death benefit up until the magistrate turned 65 and so on. This creates an incongruity which was pointed out in the report of the Senate Standing Committee on Legal and Constitutional Affairs. Simply put, the federal magistrates have a compulsory retirement age of 70, so there is a gap of five years between the benefits structure being introduced by this bill and the retirement provisions already in existence.

The issue was brought up in the inquiry by the Federal Magistrates Court, which called on the government to amend the legislation to remove this inconsistency. I note that the government has circulated some amendments to this bill. They are partly based on the recommendations of the Senate committee and go some way towards addressing the inconsistency and age gap that the government has let creep into this legislation. However, at least up until now, the government has ignored at least half of the committee’s recommendations. The government, in items 2, 3 and 5 of the amendments, partially closes this age gap. Unfortunately, though, it does not seem to have gone the whole way, and we cannot understand why.

Some of the inconsistency has been removed, and a federal magistrate between the age of 65 and 70 is now entitled to retire and apply for a disability pension. However, superannuation contribution continues to cut out at 65. So a federal magistrate who retires at 68 and receives a disability pension will not be eligible to receive superannuation for the two years left on their pension, but a federal magistrate who retires at 63 will receive superannuation for two years until they attain the age of 65. Similarly, death benefits continue to be awarded only to magistrates up to the age of 65. If a magistrate is 64 and 11 months old when he or she dies then the spouse is eligible for a sizeable death benefit. If it is one month later, that benefit does not exist at all. It is difficult to see the logic behind this. The government do appear to have agreed with the findings of the Senate inquiry and have made some movement on the issue, but they continue to maintain inconsistency for the remaining parts of this provision. In the Senate, Labor will move amendments to remove the remainder of that age gap from this legislation and, again, we hope that the government will support these amendments.

In conclusion, I reiterate that Labor supports the outcome of this bill and will vote in favour of it. However, we will be moving amendments in the Senate to try to improve it. We will be moving amendments in the Senate to ensure that same-sex de facto couples have access to these benefits on the same grounds as heterosexual de facto couples and we will be moving the remaining recommendations of the Senate committee report and the two recommendations I touched on earlier. I hope that the government will consider this on the case-by-case basis that the Attorney previously promised. It is a good opportunity to fix what is a serious anomaly. I call on the government to consider those amendments and I hope that, in the other place, both sides of parliament will be voting in favour of them. Aside from those reservations, I commend the bill to the House.

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