Wednesday, 24 September 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Bill 2008
At the conclusion of last night’s proceedings I was saying that the focus in Australia has shifted in recent years to the treatment and the status of same-sex relationships. Much of the heat in this debate which we have heard from the other side, here and in the other place, comes in a reflected way from the rhetoric and the political fights fought in the United States over this issue, particularly over the heated question of whether or not any dealings with the question of same-sex relationships interfere with traditional notions of marriage. As we know, 26 states in the United States of America have now banned so-called ‘gay marriage’ and there is a ballot initiative, set for 4 November, in California, where the Supreme Court recently upheld the constitutional right to equal treatment in this area.
What members on the other side of the House who invoke that American heat within this debate fail to recognise, or at the very least admit, is that the circumstances of the debate in the United States of America are fundamentally different from those in Australia. That is because 39, I think, of the 50 states in America, including almost all of the big states, do not have a system of de facto or common-law marriage. That is a very important detail in this debate, because what the government is trying to do in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008and tried to do in the first bill, which is stuck in a pointless Senate inquiry initiated by the opposition in the other place—is to equate the rights of members of same-sex relationships with the rights enjoyed by members of de facto heterosexual relationships in Australia. Our capacity to do that in Australia does not exist in the vast bulk of states in the United States of America—hence the heat in the debate in that place.
While various states in Australia have tried a range of different approaches to this question—in some states involving registration and in others involving different criteria for recognition—discrimination against same-sex couples by virtue of the status and the treatment of their relationships endures in Australia. That that discrimination happens at the hand of the nation’s government is, I would say, unforgivable.
Consistent with our pre-election commitments, this side of the House is finally acting. You cannot say the same of the previous government. There was a glimmer of hope in about May 2004 when the then Prime Minister, the member for Bennelong, indicated in a press conference that he thought that same-sex relationships should have equal rights in relation to reversionary benefits under superannuation. The glimmer of hope disappeared very quickly because, one week later, the then opposition, the Labor Party, moved a motion in the House that would turn that glimmer of hope into action and every single member of the then government voted against it—just as they had done when the member for Grayndler, now the Leader of the House, introduced a number of private members’ bills over the previous decade to give same-sex couples equal rights to those enjoyed by de facto heterosexual couples. On those occasions, every single member of the now opposition, the then government, voted against the granting of those rights.
As so often happens in these areas, an inquiry by the Human Rights and Equal Opportunity Commission cast a very strong light on this issue. That commission engaged in a wide-ranging public consultation before handing down their 2007 report entitled Same-sex: same entitlements. There were some 680 public submissions received and the report runs to about 500 pages—fortunately, with a very useful executive summary at the beginning. That report details a range of examples of discrimination experienced every single day by 20,000 Australian couples and their children, often at the hands of the nation’s government.
The commission, in their report, identified 58 pieces of Commonwealth legislation that involved that discrimination. I would like to quote a couple of examples. In the area of Commonwealth workers compensation, the report says:
… the same-sex partner of a worker covered by Comcare and other federal workers’ compensation schemes is not entitled to lump sum workers’ compensation death benefits. Nor is a same-sex partner taken into account when calculating the federal workers’ compensation sums available to an incapacitated employee.
In the area of tax benefits, discrimination occurs. In some of those areas of discrimination there is financial benefit and in others there is financial detriment. The report says:
Same-sex couples will often pay more tax than opposite-sex couples because they are not eligible for a range of rebates and tax concessions. Further, the same-sex parents of children may miss out on tax benefits intended to help families.
For example, same-sex couples are not entitled to the following tax concessions:
- dependent spouse tax offset
- tax offset for partner’s parent
- housekeeper tax offset
- child-housekeeper tax offset
- zone tax offset for a partner
- capital gains tax concessions when transferring property to a partner
- fringe benefits tax exemptions for a partner.
The social security benefits area is the area in which this thing swings both ways. Social security laws treat same-sex couples differently again to opposite-sex couples. For example, a same-sex partner is not entitled to the following benefits: partner allowance, bereavement benefits, widow allowance, concession card benefits and jailed partner’s pension. The report indicates:
Other times the differential treatment benefits a same-sex couple. This is because the law treats the couple as two single people, so a same-sex partner can access benefits normally available to singles.
And the report importantly says:
Several same-sex couples told the Inquiry that they would willingly trade the advantages in social security law for equal treatment under all federal laws.
That has been the feedback that I have received as well. Although some same-sex couples do receive preferential treatment in social security, they would willingly trade that for the removal of other discriminations and the status afforded by the removal of other discriminations under federal laws.
Finally, by way of example, I will mention aged care—an area often not thought about so much in relation to same-sex relationships. In relation to aged care, the report says:
When people enter an aged care facility they generally have to pay certainly daily fees and bonds to fund their care and residence. The amount of those fees is calculated by applying assets and income tests.
A same-sex couple is treated differently to an opposite-sex couple under these tests. In particular, the home of a same-sex couple is not exempted from the assets test as it is for an opposite-sex couple.
As a result, a person in a same-sex couple will generally pay more for residential aged care than a person in an opposite-sex couple.
It was an election commitment by the Labor Party that we would implement in full the recommendations of that HREOC report. We started the fulfilment of that election commitment with the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008which, as I said earlier, is stuck in a pointless Senate inquiry initiated by the opposition.
HREOC identified 58 further pieces of Commonwealth legislation, some of which I have just instanced, that discriminate against same-sex couples. An audit conducted by the Attorney-General, after being elected to govern in November, has identified a number more. Those 58 pieces plus the others identified in the audit are the subject of this bill. Areas covered within this bill include taxation, social security, health, aged care, veterans entitlements, workers compensation, immigration and many, many more. I will not go into the detail of all of those areas covered in the bill. I note that I have had the benefit of listening to the member for Ballarat’s contribution to this, and I do not think I would do the bill justice after her contribution.
I would just say in conclusion that this bill is long overdue. This is long unfinished business that has remained like a stain on the soul of Australia. We are supposed to be a country that fights against discrimination. I am very proud to be a member of the government that has decided to take up this cudgel and do it. This package involves the most significant attack on discrimination against same-sex persons and same-sex couples since the decriminalisation of homosexuality, which started in my state in the 1970s and spread throughout the nation thereafter. I strongly commend the bill to the House.