House debates

Wednesday, 4 June 2008

Same-Sex Relationships (Equal Treatment in Commonwealth Laws — Superannuation) Bill 2008

Second Reading

4:43 pm

Photo of Brendan NelsonBrendan Nelson (Bradfield, Liberal Party, Leader of the Opposition) Share this | Hansard source

We believe in the equal right of every Australian citizen to be treated with dignity and respect. We believe that all must have an equal right to lead their lives in their own way, according to their own choices and their own decisions, so long as they respect the equal right of all others to do the same. We believe that every Australian is equally entitled to a fair go, regardless of who they are, where they live or whether their parents were rich or poor. They are entitled to equal treatment regardless of the colour of their skin, the god whom they worship, if any, the political beliefs which they hold, their gender or professed sexual orientation.

The opposition, therefore, supports in principle the stated purpose of this legislation to ‘eliminate discrimination against same-sex couples’ in the nine pieces of Commonwealth legislation which are subject to this bill. These deal with superannuation and related matters in respect of Commonwealth public servants, members of the defence forces, parliamentarians, judicial officers and other Commonwealth officers who are in permanent, bona fide domestic relationships with partners of the same sex.

I point out that our side of politics has a long record in ending laws which discriminate against homosexual people. We do well to remember that it is only a generation ago, within the memory of many members of this House, that not only was there no antidiscrimination legislation but even the private sexual conduct of homosexual people was treated as a crime.

The first occasion of law reform in this area occurred only 36 years ago, in 1972, when a Liberal member of the South Australian parliament, the late Murray Hill, the father of former senator Robert Hill, introduced and secured the passage through the parliament of a private member’s bill decriminalising homosexual acts between consenting adults. All of the Australian states and territories followed suit over the course of the following two decades, but the path-breaking initial reform was brought about by a member of my own party. When this chamber debated the decriminalisation of homosexual conduct for the very first time on 18 October 1973, it was on a motion moved by another great Liberal, in fact a former Prime Minister of this country, Sir John Gorton.

The Liberal Party yields to no-one in its historic commitment to reform in this area. For us, it is not about tolerance, which implies a reluctant acquiescence to acceptance; it is about respect—the respect for the rights and dignity of every person unless, in exercising those rights, they diminish the rights of others. But, in supporting the principle behind this bill and its basic stated intention, it is absolutely essential that we do not turn this debate into something that it is not. In giving our in-principle support to this legislation, I make it very clear what the opposition is not supporting. We do not and will not support any change to or devaluation of the traditional status of marriage as the foundation, indeed the bedrock, of our society. In fairness to the Attorney-General, I do not at this point consider that this is his intention, but it may be a consequence. Acceptance that people who live in a permanent domestic same-sex relationship should be treated the same in relation to superannuation benefits as people living in a permanent domestic opposite-sex de facto relationship must not be allowed under any circumstances whatsoever to devalue the traditional status of marriage as being between a man and a woman. The opposition does not accept that there is either a legal or a moral equivalency between such relationships and that of marriage.

That is not to treat such relationships with disrespect. It is merely to make the point that marriage is a unique institution which, in one form or another, has been the foundation stone of every civilised human society, whether modern or ancient. It is a relationship which by its very nature can only exist between people of opposite sexes, and it remains the surest and most stable relationship for the nurture and upbringing of children.

To recognise the unique and intrinsic status of marriage is not to treat the relationship of same-sex partners with disrespect, just as to abolish unfair discrimination against same-sex partners is not in itself to devalue the institution of marriage. It is to accord the proper and appropriate treatment to different relationships which are of a fundamentally different character. The opposition is concerned about some of the language in the bill. In particular, the repeal from existing acts of the expression ‘marital relationship’ and its replacement by the austere and clinical expression ‘couple relationship’ might have that perhaps unintended effect. Those who value the traditional institution of marriage as highly as we do on my side of politics are alarmed to see marital relationships reduced to being one among several classes of permanent domestic relationships along with the same-sex and opposite-sex de facto relationships. Protection of the unique status of traditional marriage starts with preserving its explicit recognition in our statutes. A misguided change in this legislation has the potential to encourage similar dilution of the language of marriage into other acts of the parliament—and if that is the case we will certainly move to have this amended. We will steadfastly oppose this.

The opposition is also concerned at the way in which the bill defines children who may live in same-sex households. Of course we accept that nothing should be done—absolutely nothing—to discriminate against a child who happens to grow up in such a household when it comes to the circumstances in which he or she may be entitled to a superannuation benefit on the death of a parent. Conversely, we need to ensure that children who grow up in such households do not enjoy rights which are unavailable to other children who grow up in de facto heterosexual households. Equal treatment of children is just as important a value as equal treatment of the partners in those relationships.

Finally, as I said when the Attorney-General foreshadowed this legislation on 30 April this year, the opposition will not support—in fact we will resolutely oppose—any measure which might open the door or otherwise give legitimacy to gay adoption, gay IVF or gay surrogacy.

At the start I spoke about the importance of treating every human being with dignity and respect. That is the principle which in the end underlies all varieties of antidiscrimination laws, including in this bill. Yet in pursuing law reform in this area we must be very careful to avoid the trap of creating new inequalities by according economic recognition to the status of some types of relationships but leaving others unrecognised.

This bill opens the door on the whole question of the proper treatment of all kinds of interdependent relationships outside marriage. There is an infinite variety of circumstances in which two people who are not married to one another might nevertheless decide to live their lives together. Not all of those relationships are sexual, nor is it any of society’s business whether or not they are. The key characteristics are that they are co-dependent, exclusive and are intended or at least are expected to be permanent. Most importantly of all, they are founded on a deep, mutual commitment to one another and love of a platonic kind.

A common example is of two unmarried sisters who decide to live together as a household and do so throughout all of their adult lives. Should they not have the same rights in relation to property, taxation and superannuation as two gay people who decide to do the same in a sexual relationship? What of a woman who gives up the opportunity of marriage and children to spend her entire life looking after an invalid brother? There are many kinds of such relationships. We have all seen them amongst our constituents, and I have certainly seen them in my life as a medical practitioner.

There is, in the opposition’s view, a strong argument for giving those relationships as much recognition and respect as we give to same-sex relationships. In our view, just as same-sex couples should not be discriminated against, so too they should not be accorded a recognition and status denied to other permanent, domestic, non-marital relationships. This has been the course followed by some of the states—in particular, Victoria and Tasmania. It is a course which commends itself to the opposition.

We should not deal with one set of injustices by creating others. Accordingly, while not denying this bill passage through the House of Representatives and, as I have said, while supporting the anti-discriminatory principles behind it, it is the intention of the opposition to refer the bill to the Senate Standing Committee on Legal and Constitutional Affairs to examine the various matters of which I have spoken.

Further, I note that the opposition has been advised via the office of the Attorney-General, for which we are grateful, that there is another, much larger omnibus bill to be introduced into the House of Representatives shortly which deals with all other areas of discrimination against homosexual people in Commonwealth law and, in particular, gives effect to other recommendations of the Human Rights And Equal Opportunity Commission’s Same-sex: same entitlements report of May 2007. The opposition had expected to see the bill before now but evidently there has been some delay in its preparation, and I can understand that. It is important that this matter not be dealt with in a piecemeal way but be considered as a whole. I therefore foreshadow that it is the intention of the opposition to refer this additional bill to the Senate Standing Committee on Legal and Constitutional Affairs as well so that the whole issue of the elimination of unjust economic discrimination against same-sex partners and the potential expansion of the reach of anti-discrimination laws to other categories of interdependent relationships can be considered together. To do otherwise would be to abrogate our responsibility as legislators to carefully examine and fully understand the consequences to society of the decisions that we will ultimately make.

This is not a delaying tactic. If there has been a delay, it has been on the part of the government in not introducing the omnibus bill before now. But if we in this parliament are to embark on this major piece of law reform—as we should, in principle—which, as I have said, has the opposition’s in-principle support, we must get it right. It is more important that this be done properly than it be done immediately, whilst recognising that it is time for justice to be done.

It is also important that we bring the whole community along with us and in doing so respect the legitimacy of views that are held with great conviction by those at either end of this debate. No Australian should pay a dollar more in tax or receive a dollar less in support by virtue of his or her sexuality. That is the principle for which we stand which needs to be addressed.

It is time to address economic injustice but, in doing so, we must not—indeed, we will not—through indifference, neglect or undue haste allow legislation to pass that undermines the institution of marriage in any way or that possibly has unintended consequences for the treatment of children in same-sex relationships. This bill alone will not end injustice on the basis of sexuality. But if we get it wrong, we may create other injustices and do great damage to the institutions and values that define who we are and which built a resilient society.

On behalf of the opposition, therefore, 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 House:

affirms its commitment to the central importance of the institution of marriage to Australian society;
recognises that partners to permanent interdependent domestic relationships other than marriage (including, but not limited to, same-sex relationships) ought not to be discriminated against in relation to their financial affairs; and
notes that the Opposition will refer the bill to the Senate Legal and Constitutional Affairs Committee with a view to ensuring that, in removing discrimination against people in same-sex relationships:
the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise;
the rights and status of children are properly protected; and
the rights and status of people in interdependent relationships other than same-sex relationships are recognised and properly protected”.


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