Monday, 13 August 2007
Judges’ Pensions Amendment Bill 2007
Debate resumed from 14 June, on motion by Mr Ruddock:
That this bill be now read a second time.
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.
The original question was that this bill now be read a second time. To this the honourable member for Gellibrand has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.
I really thought I was coming in here to deal with a routine matter of some adjustment to the law to bring it into line with laws that apply to other superannuants. The other day, when a senior member of the government, one of their frontbenchers, told us that the Future Fund was only for public servant superannuation and therefore was entitled to be raided for other purposes, I nearly fell over. I now find that a piece of this sort of legislation—just making some adjustments to the present law to bring it into line with other laws—is going to be a statement of policy for the Labor Party. I would give them credit that they are not trying to be mischievous and embarrass a couple of members on this side of the House who certainly hold alternative views to my own, but the reality is that this would be Labor policy, were they to achieve government, and they are letting the people of Australia know how much further they wish to push the concept of same-sex relationships. The interesting thing is that, if it comes to your right to a job, they have a different view. If you want to join the workforce or drive your own truck, you are entitled to be discriminated against, as far as the Australian Labor Party is concerned, if you fail to join a union. So we get some rather hypocritical, if not mixed, views about discrimination and the rights of the individual.
The view of the coalition, and the Liberal Party in particular, is that you have a right to decide whether or not you want to be a member of a trade union, and you should not be discriminated against if you choose to or not. But we have just had a lecture on the rights of the individual and their right to cohabitate with someone of the same sex and be a recipient of a pension that is substantially funded by the Australian taxpayer. It might not be a bad idea for the Australian Labor Party to put their view on this matter on YouTube or wherever they publicise these things these days so that the taxpayer can know their opinion on this matter.
The point has been made that, on the sudden death of an eligible superannuant, the provisions of the law are quite clear about their dependants: that person’s children—that is, I assume, those under the age of 18—or a wife who has no employment, for example. I can only assume that to extend it that stage further, as proposed here tonight, is a policy decision that the Labor Party will trumpet in the forthcoming election. I hope they make that clearly known through their trade union people who are ringing up people every day that this is their view. I happen to mix with a lot of those people, probably more so than many on the frontbench of the Labor Party, and I think they have an alternative view. I do not think they think that their taxes should be used to pay pensions in this situation.
It is an interesting point because, otherwise, on retirement, it is available to superannuants in all different categories to take part of that pension as a lump sum, and there is nothing against that being gifted to your partner, whatever their description, as their nest egg. So we are talking about a massive change of government policy purely and simply on the percentage of judges who will die while still in service. I do not believe for a minute that the Labor opposition would go to the barricades on that issue, so I think I can put their initiative down to mischief. But tomorrow I expect to be able to get somebody in my office who is more computer literate than me to look up YouTube to see if this is a clear policy initiative. Otherwise, it is mischief. That is what this is all about, and it says nothing for the integrity of the shadow minister, who has just put this heartrending proposition to us, if it is mischief, because the people concerned should not be used for that purpose.
I note that the shadow minister also said that this is just a small move in Labor’s campaign to recognise in all areas the rights of same-sex couples. She said that the Labor Party would prefer to do more of this. As I said, we will await their policy announcement. It will be interesting to see how many of the Kevin Harkinses of this world will want to be on the telephone all day in their new employment—and I guess that is what he will be: a fella who rings up everybody else—making this a No. 1 issue for the forthcoming election.
The purpose of this legislation, the Judges’ Pensions Amendment Bill 2007, is routine. It has been established because there are special circumstances applicable to judges. This matter escaped the attention of the draftsmen at the time of preparing new legislation. That in itself, one would have thought, should have been the subject of the amendment prepared by the member for Gellibrand. Why do we have to make these adjustments? It is because we introduced a phasing out of the superannuation surcharge. That is something with which I was never comfortable, but I recognised that it was a necessary measure to pay off Labor’s $96 billion debt. We had to raise unpopular taxes for that purpose.
We introduced that in our early years of government to gain the revenue necessary. Nobody liked it, ourselves in this House included, but at the first opportunity, as good economic management allowed, that matter was commenced, firstly, in a phasing out arrangement and then, of course, with a budget announcement that it would occur no more. In the process of that, and in considering the special legislation relevant to judges, their circumstances were overlooked, and it is the role of this legislation to correct it. Not anticipating that we were going to get another stage of Labor Party policy, I also thought it appropriate. Labor are strong on same-sex marriages but seem to claim no differentiation on economic policy. They are, of course, very far distant from us on industrial relations policy.
We now know that the Labor Party does not believe that public servants should have the security of the Future Fund. We now understand that in the area of superannuation same-sex marriages need to be fixed up as a matter of great importance to this parliament. It is a pretty interesting comparison when one thinks about it, because that superannuation is relied upon by the defence forces, the Federal Police and a large number of other public servants, many resident in Canberra. Considering the demographic changes that will occur in the future, there is no guarantee that the true and proper entitlements of those people can be met by the taxpayers of the future without the support of the Future Fund. So we have learnt that superannuation does not matter for public servants, as far as the Labor Party is concerned, but it does if you are in a same-sex arrangement.
I support this legislation, which corrects the anomalies that have occurred. I want to add at this time that I am also a supporter of adequate salaries and superannuation arrangements for judges and other people who leave their professions, highly paid as they are, as barristers or legal practitioners to take on the responsibility of adjudicating on the laws that this parliament delivers. We clearly want the best and we clearly should pay them properly.
One of the things that disappoint me is when we constantly get confronted with media and sometimes parliamentary comments about the salaries that certain people earn. When one considers the moment of the decisions that are made, for instance in the High Court, and compares them to the rewards that can be achieved in the financial sector in Australia or by the top managers, be it of Telstra or the major mineral companies or whatever, the remuneration that this parliament approves for judges is not high.
It is time that people in this House avoided talking about how much people get paid. I heard a member of parliament, a backbencher, say the other day that he told a group of schoolkids that he got the same wages as their school principal. I hope he was right for the school principal’s sake, because state governments have a habit of underpaying them with respect to their responsibility for young people in this day and age. Let me repeat that, with respect to the people it invites to take on responsibilities like judgements and rulings on other very serious matters, government should be generous in the funds that it offers to ensure it gets the best people.
The legislation comes down to adjusting superannuation to bring it into line with the wonderful offer that this government has made to the Australian people. There is the incentive we have given them to invest in their own retirement by removing the taxation on super, giving them the opportunity, as we did, to invest very large sums of money in their superannuation tax free. All of those measures were properly reflective of our concern for the future when none of us who are sitting in this chamber at present will be here. That is an unusual form of government which has typically, from my observations over a long time, been one that says, ‘What do we need to do for the next couple of years to survive?’ Therefore I strongly oppose the amendment. Labor are not going to oppose the bill, but they are going to play a bit of mischief. It is on the record now that this is their view and I hope it is on YouTube tomorrow morning. (Time expired)
I rise to speak in favour of the amendment moved by my colleague the member for Gellibrand to the Judges’ Pensions Amendment Bill 2007. It is important to refute the arguments put by the member for O’Connor in what can only be described as an extraordinarily narrow speech in each and every way. Labor does support equality between same-sex de facto couples and heterosexual de facto couples.
We support removing discrimination in a range of areas, including immigration, social security, health care and, indeed, economic issues such as superannuation. The member for O’Connor made an extraordinarily homophobic contribution to the debate suggesting that somehow this is a secret Labor position. In fact, I moved a private member’s bill as far back as 1998 and had to reintroduce it three times when it lapsed because the government refused to allow it to be debated. It was called the Superannuation (Entitlements of same sex couples) Bill. That bill sought to give the same recognition for and entitlements to superannuation for same-sex couples as are currently enjoyed by heterosexual couples. This amendment seeks to give effect to that principle. It states:
... 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.
It is a very simple principle, one which should not be contentious in this parliament in the year 2007.
We had no justification from the member for O’Connor as to why that would not be permitted. Pandering to prejudice was essentially the only argument that was put forward. Yes, there are people who disagree with this proposition, but it is the role of parliamentarians to appeal to people’s better nature, to drive forward social change in a way which improves the social relationships between individuals and groups in our society. I am afraid that that is something which the Howard government has not been prepared to do. The Howard government at each and every opportunity has been prepared to divide people according to race, class, gender or sexuality.
I read in today’s paper that the member for Wentworth suggested that he is going to champion this cause. Well, let him come into this House and vote for this amendment; let him come into this House and support this very basic, fundamental amendment, which goes to the human rights of individuals, and the right to respect that every individual deserves.
We all know of course that being part of a minority, not just on the basis of sexual preference but on the basis of race or religion, can be extremely difficult. We know that Justice Michael Kirby paid a great price for being open about his sexuality and about the fact that he is in a long-term stable relationship with a partner of the same sex. For that, he suffered vilification in the Senate from the Prime Minister’s hatchet man, Senator Bill Heffernan. It is quite clear, I think, that this amendment should not worry anyone. For someone, like the minister opposite, who wears an Amnesty International badge, which would indicate a concern for human rights, it certainly should not concern him.
The minister says he does not have it on his tux and dinner suit, and that is right—perhaps you should consider not putting it back on again, Minister, until you are prepared to actually show that you do support human rights in any direction. The fact is that you cannot call yourself a liberal and not support human dignity and equal treatment on the basis of relationships, whether they be same-sex relationships or heterosexual relationships. That is all this amendment does.
Indeed, prior to the last election the Howard government gave a commitment that they were going to deal with the issue of superannuation—a small element. Indeed, the Prime Minister has made comments that he supports equal treatment across a range of areas for people in same-sex relationships. Yet, not only have we seen no movement in social security, health, migration and other areas from this government; on the minuscule area of superannuation we have seen a very inadequate reform, which has left discrimination in place for Public Service employees. I commend the amendment to the House and urge all those opposed to discrimination to vote for it.
I thank the members who have contributed to this debate—the members for Gellibrand, O’Connor and Grayndler. The Judges’ Pensions Amendment Bill 2007 is intended to rectify technical deficiencies in the Judges’ Pension Act 1968, relating to the application of the superannuation surcharge to federal judges appointed between 7 December 1997 and 30 June 2005. The government acknowledges the role the judicial pension has to play in attracting and retaining the best candidates for the bench, and has therefore decided to address certain deficiencies. The main object of this bill is to pass on reductions in the top surcharge rate in 2003-04 and 2004-05 and to give judges the option to commute a portion of their pension to pay their surcharge debts. Judges are entitled to receive the benefit of lower maximum rates of surcharge which apply to other high-income earners in those years—2003-04 and 2004-05. The bill also provides judges with a commutation option as an alternative way of paying their surcharge debts since other Commonwealth defined benefits schemes already offer their members such an option. This is simply to bring the judges’ scheme into line. This bill will address the judges’ concern about the application of the surcharge and give them the benefit of the lower maximum rates and the flexibility to make partial payments of their surcharge debts before they retire.
I take it that, notwithstanding the opposition amendment that says, ‘whilst not declining to give the bill a second reading’, they support the measure as proposed, and when other matters have been disposed of I hope they will support the second reading of this bill to ensure that this issue is addressed quickly. If the issue is addressed it means that judges are not being advantaged by this measure but are being put in the same position as other high-income earners.
The opposition have proposed a formal amendment which they will move in the committee stage. The second reading amendment I referred to earlier reads:
... 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 ...
When I spoke on a like matter involving disability payments to magistrates I set out the government’s position and why we did not intend to support such an amendment. The government is giving consideration to the recommendations of the Human Rights and Equal Opportunity Commission’s report Same sex: same entitlements, which was tabled in this parliament on 21 June.
It was only a short while ago; it is a month-and-a-half—not a long time ago. The committee is also considering the issue of reversionary benefits to those in interdependent, including same-sex, relationships with members of Commonwealth defined benefit schemes. I make the point that the government did deal—and I say this to the member for Grayndler—with superannuation issues but—
The member makes that assertion, and she can speak when she deals with the committee stage. But I would just make the point that there are a range of defined benefit schemes in which the Commonwealth participates. The member wants to deal with one in isolation—the one that deals with judges.
That is one which, I would say, is not necessarily as deserving as those relating to returned servicemen and those relating to Commonwealth public servants. It is in the context that we are dealing with defined benefits schemes that the totality of them and the arguments relating to that issue need to be addressed. Those matters are being considered by the government, but it is our view that it is inappropriate to single out members of the judiciary for special treatment in advance of the consideration of the members of other defined benefit schemes. Those matters will be the subject of consideration, but they will be the subject of consideration in the broader context to which the opposition pays no regard—that is, defined benefits schemes involve additional outlays if you introduce a new class of beneficiaries. That has quite significant impacts over the longer term. I notice that the opposition claims to be fiscally conservative these days. A fiscal conservative would want to know what the impact of a measure of this type might be, particularly in the context of the class of beneficiaries that are involved—that is, those who are beneficiaries of defined benefit schemes. In order that those matters can be dealt with in a considered way, the government will reject the amendment.
That the words proposed to be omitted (Ms Roxon’s amendment) stand part of the question.
Original question agreed to.
Bill read a second time.