Monday, 13 August 2007
Judges’ Pensions Amendment Bill 2007
I want to speak today on the Judges’ Pensions Amendment Bill 2007. Labor supports the contents of this bill. It contains largely technical amendments to the formula by which superannuation of former federal judges is payable. I note, however, for the benefit of the House, that Labor does not agree that this bill goes far enough and we will be moving a second reading amendment, calling on the government to make a significant change to this bill. I will move that amendment before the end of my speech. Depending on the time of the House it may be necessary to stand it over. I may well be able to speak long enough to get us to eight o’clock. I am not sure how many other speakers there are on this bill.
Currently, upon the death or retirement of a federal judge, a formula operates to reduce a judge’s pension by averaging the rates of surcharge that apply to the judge in each full financial year of his or her service. The bill makes four technical amendments to that scheme. Firstly, it amends the reduction for the years 2003-04 and 2004-05 which, according to the explanatory memorandum, brings the formula into line with the maximum surcharge for those years. Secondly, the bill amends the formula for invalidity pensions to take into account the abolition of the surcharge from 1 July 2005. Thirdly, the bill allows the spouse of a judge who dies in office to choose between having the judge’s pension reduced under the formula or a commutation scheme. Fourthly, the bill allows the trustee of the judge’s pension scheme to draw on an existing special appropriation for the payment of judges’ surcharge debts to the ATO as they retire.
As I said, Labor supports the bill’s passage. However, as I foreshadowed, we intend to move a second reading amendment here and amendments in the Senate. The amendments that we will be moving are not to amend the substance of the bill but to seek to add to them by correcting the discrimination that exists in the primary act, the Judges’ Pensions Act 1968. That act as it currently stands excludes same-sex de facto couples from its operation. Heterosexual de facto couples are, for the purposes of this act, taken to be bona fide married couples if they have lived together for three years or more as man and wife or, in the case of less than three years, the Attorney-General, having regard to any relevant evidence, is of the opinion that a person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis regardless of whether or not that person was legally married to the other person. Same-sex de facto partners of judges are currently completely excluded from this scheme.
What does all of this mean? For a married or de facto heterosexual couple the current sections 7 and 8 of the Judges’ Pensions Act provide that on the death of the judge or retired judge the surviving partner is entitled to a payment of 62.5 per cent of the judge’s relevant pension. This is a pretty standard clause which exists to ensure that the partner of a judge who has served the judiciary and Australia is not left high and dry upon their death. Unfortunately, as I have already mentioned, it was not drafted to envisage—and it certainly does not encompass—circumstances where judges are in a same-sex de facto relationship of long standing. This is not a situation which Labor finds acceptable and, as such, we will move amendments to ensure that these injustices do not continue.
The amendments are clearly within the objects of the bill before us. The bill’s long title is ‘A Bill for an Act to amend the law in relation to Judges’ pensions, and for related purposes.’ We cannot understand why there would be criticism of us for moving these amendments. However, I might flag that, having raised similar issues with regard to disability payments for federal magistrates last week in the Main Committee, the Attorney does not seem to have a consistent approach on this. He exhorted us to move these issues on a case by case basis and then, when approached with that, refused it on the basis that it was looking at one piece of legislation in isolation from the others—and obviously you cannot have your cake and eat it too. Again, we will persist with the approach that we have been taking and take the Attorney at his word that he wants to deal with this on a case by case basis. We will be arguing that judges with longstanding same-sex partners should be entitled to the same benefits and protection as those judges who are married or in longstanding heterosexual relationships.
It is imperative that this parliament takes these measures and starts moving these types of amendments and changes the laws that exist and have this discriminatory impact. There is no other way for this to be dealt with when the government continues with its intransigence on the issue of discrimination against same-sex couples. I want to repeat some of the sentiments and Labor’s reasons for moving a second reading amendment, which I touched upon recently in the Main Committee, on another bill—the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006. As I have said, there is no logical reason or rationale for continuing to refuse access to these pensions to same-sex de facto couples. Following the exclusive definition of marriage in common law and the Marriage Act 1968, same-sex couples are left with no other option. The transferability of these pensions to a partner of the deceased judge is a recognition of their contribution to judicial life and the immense workload that these judges undertake during their tenure. The payment is to ensure that the partners of these judicial officers are not left high and dry in the event of their death. There is no provision in place barring homosexual judges from accessing the judicial pension scheme. There is no suggestion that a judge who is in a same-sex relationship is any less worthy of receiving a pension as one who is in a heterosexual relationship. The only thing that is barred is transferring the pension to the other partner in the same-sex relationship on the same grounds as are provided in a heterosexual relationship.
Of course, I should not have to point out to the House that—but some may need to be reminded of it—the issue of whether homosexuality should be legal is well and truly settled, and rightly so. It is over a decade since the Keating government passed the Human Rights (Sexual Conduct) Act 1994, which overrode Tasmanian law—the last of those laws that outlawed homosexuality. So the debate on that matter is settled. Logically, there is no reason why the payment of pensions to judicial partners after a judge’s death should not be extended to include same-sex de facto partners, yet the legislation as it stands does not allow for this to occur. To be perfectly frank, it is about time that the government began to move with society to extend benefits to persons in these relationships.
The government is well behind on these matters. I know that some of the members of the government are acutely aware of this. The opportunity that members will have to vote on Labor’s second reading amendment will show whether those who have been prepared to argue the case in the media—the members for Wentworth, Leichhardt, Flinders and a few others—will actually be prepared to vote with us on the issue that they say they have been pursuing for some time.
A report by the Human Rights and Equal Opportunity Commission looked into how many pieces of legislation continue with a variable approach to same-sex and heterosexual de factos. HREOC’s report entitled Same-sex: same entitlements found a massive total of 58 pieces of legislation which discriminated against same-sex couples. After this sitting fortnight the number will probably be 60 pieces of federal legislation. I think we should do our bit to ensure that we are reducing that number, not adding to it.
We know that some of those pieces of legislation, by treating same-sex couples in a different way, actually sometimes discriminate in a way that might be beneficial for those couples. Some benefits are reduced where a person is living in a marriage-like situation with a person of the opposite sex, and same-sex de facto relationships do not count for those purposes. So, in some limited cases, a same-sex de facto couple might actually get a financial advantage out of the discrimination. By and large, for the most part, same-sex de facto couples are denied the benefits which are provided to married couples and are certainly denied the recognition. I would like the Attorney to take the time when he sums up on this bill to indicate the government’s position on the HREOC report, specifically whether he proposes to address discrimination on a case by case basis, such as the one that we have before us.
It might be an appropriate time for me to move Labor’s second reading amendment so the House is aware of the issue that we would like to flag. To remove the discrimination which operates in relation to the Judges’ Pensions Act, I move:
That all words after ‘That’ be omitted with a view to substituting the following words: ‘whilst not declining to give the bill a second reading the Opposition believes that the bill fails to give equal treatment to all judges by not treating judges in same-sex de facto relationships in the same way as heterosexual judges and their spouses or de facto spouses, and calls on the Government to amend the bill in order to give judges in same-sex relationships equal treatment’.
I understand that my colleague the shadow Attorney-General will be moving amendments in the Senate when the legislation is considered there. I call on the government to seriously consider this amendment. When you read many of the statements the Attorney-General has made on this issue, you will see that it is about time he decided which way to go on this. He has to decide whether he will stick with his approach that the government wants to consider the discrimination on a case by case basis, in which case he needs to stand up today and argue why this is or is not a good idea. He cannot, as he did in the Main Committee when this was raised concerning a similar issue, say, ‘I can’t do this on a case by case basis because I can’t look at this entitlement in isolation from all others.’ The Attorney has two approaches, but, whichever approach we take, he always decides on the day to use the other one. I think the public are starting to see through him, and I am sure that the backbench and those who are committed to equal rights for the gay and lesbian community will be pleased to have the opportunity to actually vote on this issue today and stand up for what they believe in.
When HREOC issued its report that I mentioned before, the Attorney-General, on 21 June this year, 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.
That is exactly what we are calling on the government to do today. I also noticed a statement by the Prime Minister at a doorstop interview at around the same time, 8 June last year, where the Prime Minister very clearly said:
I am in favour of removing areas of discrimination and we have and I’m quite happy on a case by case basis to look at other areas where people believe there’s genuine discrimination ...
The case that we have before us today is about as clear-cut as it gets. There is a clear benefit that is being denied to same-sex couples in a de facto relationship. It is not as if we are having this debate in complete isolation. There is an actual example of someone who is most immediately going to be affected by this decision. The High Court’s Justice Michael Kirby is a real-life case for the government to consider. The government says it is determined to act only on a case by case basis, yet Justice Kirby himself has stated in a letter to the Attorney-General that, if he were to die today, the legislation as it currently stands—and it will not be changed following the passage of this bill unless the government accepts our amendments—will deny his partner a judicial pension.
Justice Kirby will retire from his judicial career by early 2009—and I stress that we hope and pray that the following does not occur—but, if he were to die before or after his retirement, the person whom he has loved and forged a life with for nearly four decades would get nothing, not a single thing. The bill that the government is proposing today will not change that. The government has a chance, on a case by case basis, not to change the law for one person but to see that there is one very high-profile person who is affected by this and whose relationship, by anybody’s measure—four decades plus—must be one where the partner has provided all of the significant support that is provided in many other relationships to many other judges who serve our country so well; of course, there would be many other people affected, either currently serving judges or in the future. It is hard for the Attorney-General to argue why this discrimination should not be removed. There is a clear and unambiguous example of how these laws impact on law-abiding Australian citizens, with no justification.
I hope that the government will consider supporting our amendments. With the government’s self-publicised reputation for truth and honesty with the Australian public, if they do want to keep saying—as they do in so many other areas—‘Trust us, trust our record and trust the word we give you,’ we expect that the Attorney will actually act on his word in this instance. It is no small matter; it is something that should be taken seriously. We would much prefer to have a more significant change across the board, affecting a whole range of these laws. Labor are committed to removing discrimination, with the exception of the Marriage Act. We are committed to ensuring that de facto heterosexual couples and same-sex couples are treated equally, but the government refuse to do that, so we are forced into the position of moving amendments on each occasion where it is appropriate. We hope that, piece by piece, we will be able to convince the government and get the good people within the government’s ranks to continue to put pressure on their government to do the right thing.
There is an opportunity for anyone who wants to be judged by their constituents to really take this as an example of where they should do the right thing. I have said before that the members for Wentworth, Leichhardt, Flinders and, I think, McMillan, and certainly the member for Cook and a range of others, have been prepared—in the media and, I understand, in their party room—to raise these issues. Tonight they will have an opportunity to vote with their feet, stand up for something that they believe in and continue to keep pressure on the government to act.
That is as much as I really need to say on this issue. I am conscious of the time. There is another speaker. I seek confirmation that this will not cause any problems with the dining of our colleagues during this restricted period. Obviously, Labor support the bill. We support the content of the bill. We think the technical changes are entirely appropriate, but we think that my second reading amendment would significantly improve the situation for judges by removing this discrimination. I hope that the government will consider supporting the amendment.