House debates

Wednesday, 24 September 2008

Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Bill 2008

Second Reading

10:31 am

Photo of Robert McClellandRobert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I thank honourable members for their contributions to the debate, many of which have been extremely thoughtful ones. I note that the member for Wentworth has previously expressed support for removing discrimination against same-sex couples, and I accept his genuineness in that. Indeed, prior to the last election, he pledged to ‘continue the fight until justice is done’. Again, I accept the genuineness of that statement. In that context, I was a bit disappointed that the Liberal leader did not see this bill as being important enough for him to participate in the debate in the chamber, to support the fundamentals of the legislation and counter some of the more extreme views that some of his colleagues expressed during the debate.

A measure of this debate is the fact that it has essentially been so well accepted in the community as something that should be done and should have been done some time ago. So we would certainly encourage the Leader of the Opposition to engage in the debate in the House and also within his party to ensure that there is no unnecessary delay in the passage of this legislation as a result of, as I have indicated, some rather extreme views.

I note that the member for Farrer has stated that the opposition supports the underlying principles of the legislation—and we welcome that—but she then sought to qualify that support on the basis of concerns about drafting issues. She also sought to amend the bill during the second reading debate with a motion to insert matters which, quite frankly, are not relevant to this legislation. I will deal with these issues shortly, but I would first like to highlight what appears to be an ongoing strategy the coalition has adopted. It professes to support the fundamentals of the legislation but then it highlights so-called drafting issues as an excuse for qualifying that support and questioning the principles of according equal treatment to same-sex couples.

In contrast, I would like to pay tribute to the member for Kooyong, who spoke eloquently in support of the legislation and urged the Senate to pass the two same-sex bills expeditiously. The Leader of the Opposition should heed the member for Kooyong’s final comments because they were the words of a true liberal. He said:

Debates over wording and semantics have preoccupied us for far too long.

As I informed the House two weeks ago, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 introduces the second part of historic reforms to amend Commonwealth laws that discriminate on the basis of sexuality. The amendments contained in this bill are required because same-sex relationships are not accorded recognition in a wide range of Commonwealth laws. This prevents same-sex couples from accessing many benefits which are available to opposite-sex couples. This differential in treatment also relieves them of a number of obligations which are commonly imposed on opposite-sex couples. I must say that the general community involved in advocacy of the needs for these changes accepts that there will be beneficiaries and there will be those who will suffer a detriment as a result of these reforms. But the principle is about removing discrimination.

The amendments are also required to ensure that functional recognition is provided, most importantly, to the children of same-sex relationships. We should not lose sight of that fact. The amendments will ensure that children of same-sex couples are not disadvantaged solely because of their family structure. It will also mean that legislative provisions which extend rights and duties to children and relatives will extend to children of same-sex relationships. The bill will amend some 68 Commonwealth laws. These are major reforms which will effectively remove same-sex discrimination from many areas of Commonwealth activity.

The approach taken in the bill is to provide a consistent approach to recognising same-sex couples and their families. The bill will insert a new definition of ‘de facto partner’ into the Acts Interpretation Act 1901. That new definition will apply to de facto relationships where parties to the relationship are of the same or opposite sex. The definition will also specifically and clearly recognise relationships that have been registered under prescribed state and territory relationship registration schemes. People will be taken to be de facto partners on the basis that they have satisfied the requirements for registration under those prescribed state or territory laws.

Introducing equality will on occasions impose burdens and reduce certain benefits, as I have mentioned earlier. However, this is an essential step towards a fairer and more just society rather than one that tolerates ingrained discrimination. For example, same-sex de facto couples will for the first time be recognised as ‘associates’ for the purposes of many Commonwealth market regulation laws. In some circumstances, same-sex couples will be required to declare interests or modify their property holdings in order to comply with these regulatory arrangements. Similarly, same-sex couples will have their social security benefits reduced in some circumstances. This is because benefits paid to couples are often smaller than the amount which would be paid at the single rate to two people. But this is simply equal treatment to that of opposite-sex relationships.

Another aspect of the reform package that I am particularly pleased to introduce is the removal of remnant marital status discrimination—discrimination which has somehow continued for 24 years after the Sex Discrimination Act made it unlawful to discriminate on the basis of the marital status of a person. It is surely time that such marital status discrimination was removed by reforming terms such as ‘step-children’, ‘step-parents’, ‘widows’ and ‘widowers’. Currently, the ordinary meaning of these terms requires that a person be married. The reality is there would be many relationships nowadays for which those terms would be quite simply irrelevant or inappropriate.

Last week I announced that the government would move an amendment to section 60H of the Family Law Act to implement a bipartisan recommendation from the Senate Standing Committee on Legal and Constitutional Affairs. I would like to commend the excellent work of the senators who were members of that committee and to congratulate them for a balanced and very useful report and, indeed, recommendation. In light of that proposed amendment, the government is considering what options are available to adopt this new approach as a basis for defining ‘children’ and ‘parents’ in other Commonwealth laws that are being amended to remove discrimination against same-sex couples and their families. I was surprised by claims made by some of the members opposite—for example, the claims made by the members for Mackellar and Fadden stand out—that the reforms in any way undermine the institution of marriage. I say with respect to those members that they are simply wrong. Indeed, it was perhaps disappointing that they went further to suggest that, far from removing discrimination against same-sex couples, we should be discriminating in favour of married couples. It has long been recognised that such discrimination would not be consistent with a fair and egalitarian society. What this bill does is nothing more and nothing less than remove discrimination in circumstances where, I think, the vast majority of fair-minded Australians would say that for too long discrimination has occurred. Further, removing discrimination against same-sex couples, as I have mentioned, does not in any way, shape or form undermine marriage. Marriage is defined in the Marriage Act as being between a man and a woman. That provision was inserted into the act by an amendment supported by both sides of the parliament. It is the view of the parliament and it will remain the law.

The Rudd government’s policy on marriage is very clear and its policy reflects the widely held view in the community that is referred to in that legislation. However, the opposition has claimed that amendments to the Migration Act, for instance, do undermine marriage. So let me just allay that concern. The amendments to the Migration Act do not recognise same-sex marriages whether entered into overseas or otherwise. This is made clear by a new paragraph 5F(2)(b) which requires, for the purposes of the Migration Act, that a married relationship is between a ‘husband and wife to the exclusion of all others’. The ordinary meaning of ‘husband’ and ‘wife’ requires the marriage to be between people of opposite sex. In addition, section 88EA of the Marriage Act expressly forbids the recognition of same-sex marriages in Australia. That provision applies to the recognition of marriages for the purposes of the Migration Act. That section is unaffected by these amendments. The irony is that the concerns raised by the opposition centre on a section of the Marriage Act which was in fact inserted into the legislation in 2004 by the then coalition government!

This bill includes a provision, to be inserted into the Acts Interpretation Act, which clarifies that a de facto relationship can exist even if one person in the relationship is legally married to another person in a registered relationship with another person or in a de facto relationship. I understand from the member for Mackellar that she believes this is in some way an endorsement of polygamous marriages. I have addressed this issue previously in the House. But, again for the record, the Rudd government has made clear that it does not support polygamous marriages. Indeed, they are illegal under state and territory legislation. That is the case and it is undisturbed by this legislation. However, obviously there are cases that recognise that it is possible to live in a de facto relationship with a person while still legally married to another person. The legal recognition of such relationships is necessary to ensure that rights are not unjustly denied to a de facto partner.

In determining whether or not one or more de facto relationships exist, the administrator will take into account all relevant circumstances, which could include the nature and extent of common residence and the duration of the relationship. In other words, if the views of some of those opposite were accepted, it would mean that a person in a de facto relationship would potentially be deprived of remedy under the measures contained in this legislation because the party to their now defunct but still extant marriage was reluctant or in some way obstructing the dissolution of that marriage.

The opposition has called for recognition of interdependent relationships. It is true that this bill does not recognise interdependent relationships. As I said in the second reading speech, recognising interdependent relationships raises many complex issues. These are viable issues that it is appropriate for the parliament to consider. It is considering them in a broader inquiry that is taking place. I highlight a few of the complexities involved in recognising interdependent relationships in this legislation. They are difficult to define. There is a lack of reliable data on the number of relationships, dependency and interdependency are a matter of degree and determining where to draw the line would be difficult, and recognising interdependent relationships may not be appropriate in all situations. For example, in the social security or pension contexts it could mean, for reasons that I have set out, that two sisters who lived together would be treated as a couple and receive a lower amount in pension because of their interdependent relationship. While the position of some interdependent relationships such as carers may need to be closely considered by the government, this bill, which seeks to remove discrimination against same-sex couples and their families, is not the vehicle to address those concerns.

One of the most important aspects of this legislation is the removal of discrimination against the children of same-sex couples. I am sure all members accept that children have essentially no say in the relationship that is structured or entered into by their parents. Same-sex: same entitlements, the report of the Human Rights and Equal Opportunity Commission, identified that discrimination can clearly exist against children. For instance, same-sex couples and their families are denied basic financial and work related entitlements in a wide range of areas. They disadvantage the members of the same-sex couple, and it is self-evident that this may well disadvantage the child in the family. For example, same-sex couples have to spend more money on medical expenses than opposite-sex couples to take advantage of the Medicare and Pharmaceutical Benefits Scheme and the relevant safety nets.

Another example of such disadvantage is the operation of the Life Insurance Act 1995. Under that act a life insurance company can pay out a policy to an insured person’s child without going through probate when the money payable under a policy is below a certain amount. Probate, as we are aware, can be a time-consuming and expensive process. However, there is no specific definition of who qualifies as a person’s child. This means that a child of a same-sex co-father or lesbian co-mother may have to lodge a claim in probate to obtain the entitlement. As I have mentioned, this may well incur additional, potentially significant delay and cost. Removing discriminatory laws may well impact upon the welfare—including the financial welfare—of the children of same-sex relationships.

The issue from the government’s perspective is not about encouraging same-sex parenting but about removing discrimination. The bill does not create relationships that do not already exist. The reforms in the bill recognise real family situations. Recognition is necessary if we as a community are to remove discrimination against same-sex families and, importantly, their children. Further, the HREOC report Same-sex: same entitlements states:

Families headed by same-sex couples already exist in our community. And with the advent of assisted reproductive technology (ART), more and more lesbian and gay couples are having children.

The Australian Bureau of Statistics data from the 2006 national census indicates there were approximately 25,000 same-sex couples residing together in Australia—less than one per cent of all couples residing together—and 4,400 children of same-sex relationships. Again, while this legislation will in no way result in the federal legislature entering into the field of assisted reproductive technology, it is a reality that it occurs in various states and territories around Australia, and the failure to recognise that reality has the real potential—not only potential but actuality—to cause disadvantage.

It has given me great pleasure to introduce this bill and the related Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. They have honoured the Rudd government’s election commitment to remove discrimination against same-sex couples and implement the recommendation of the inquiry of the Human Rights and Equal Opportunity Commission. Most importantly, the legislation removes discrimination against a group of fellow Australians—and their children—who have been discriminated against for far too long. In removing this discrimination, we deepen the respect in Australia for the human rights of all Australian citizens.

Question put:

That the words proposed to be omitted (Ms Ley’s amendment) stand part of the question.


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