Wednesday, 4 June 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws — Superannuation) Bill 2008
Debate resumed from 28 May, on motion by Mr McClelland:
That this bill be now read a second time.
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”.
In the government’s view, the truest measure of a genuinely enlightened society is how we treat difference and diversity. The history of humanity is riddled with prejudice and discrimination and I, like many members in this House and in the other place, have been fortunate to have lived during a period which included the most significant advances in this respect in the history of humanity. We have seen, if not the entire elimination of discrimination, at least the beginnings of a serious fight against discrimination on the grounds of race, gender, religion, political belief and a number of other historical grounds of prejudice and discrimination. But discrimination on the grounds of sexuality or sexual preference remains a deep and continuing problem in our society. It remains a stain on the soul of this nation. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 is a watershed in addressing discrimination against homosexuals and discrimination on the ground of sexual preference. It follows on from significant action in recent years by a number of state governments. In my own state of South Australia, legislation passed in the last couple of years now allows a same-sex partner visitation rights to the hospital to visit their sick partner as of right. Before the legislation passed in South Australia, a same-sex partner would not have been able to collect the remains of their dead partner from the morgue and would not have had the next-of-kin rights in relation to funerals and other post-death arrangements.
Unfortunately, though, as we know, the key levers in this area, as in so many others, lie with the Commonwealth, and the last government simply chose not to act. There was the glimmer of hope in May 2004 when the then Prime Minister, at a press conference, said that same-sex partners should have the same superannuation rights as married couples. One week later, every single member of the then government voted against a motion by the then opposition to introduce legislation to put that statement into effect. The present Leader of the House, the member for Grayndler, first moved a private member’s bill to establish these same-sex superannuation rights in 1998, and he has moved that private member’s bill on several occasions since. On every single occasion, he was opposed by every single member of the government.
As happens so often, the Human Rights and Equal Opportunity Commission cast a very great public spotlight on this problem. In the Human Rights and Equal Opportunity Commission report in 2007 entitled Same-sex: same entitlements, it was revealed that 58 pieces of legislation of the Commonwealth parliament discriminated against same-sex partners and children of same-sex partners. Those pieces of legislation involved breaches of a number of our international obligations, including the rights of children under various UN instruments. This was the result of very wide-ranging public consultations and 680 written submissions. The report was of almost 500 pages, but there is a community guide available, which I commend to everyone. It is short and very readable and contains some very stark examples of the discrimination that some 20,000 same-sex couples and their children in Australia face every day—discrimination at the hands of legislation of this parliament. For example, in the area of Comcare, the same-sex partner of a worker covered by that scheme is not entitled to lump-sum workers compensation death benefits as is the case with other couples. I could go on and illustrate many other examples, but I will not for the sake of time.
As an election promise for last year’s election, the Labor Party made a commitment to implement all of the recommendations of the HREOC report, and this bill starts that process. Indeed, after the election the new Attorney-General conducted an audit of Commonwealth legislation that revealed 47 additional instances of discrimination against same-sex partners. Those will be part of the program that this government has to remove this stain of discrimination.
The first phase of this phased approach, though, is to deal with the question of superannuation, and the first part of that is a range of reversionary benefits that apply under various Commonwealth superannuation schemes. Now a surviving same-sex partner, or a child of a same-sex couple, will have the same reversionary benefit rights that exist with other couples. The second part of the legislation is to extend tax concessions that apply on death benefits that flow from all superannuation schemes in South Australia—death benefits that would be paid to a same-sex partner or to the child of a same-sex couple when the deceased partner is not a biological parent. These are instances where at present under existing law those people get nothing.
The public support for these proposals is overwhelming, contrary to what the Leader of the Opposition just said. A poll conducted last year in June by Galaxy showed that fully 71 per cent of Australians supported the proposals contained in the HREOC report. For that reason the opposition position, if a bit predictable, is highly disappointing. The referral of this legislation, or any other legislation that seeks to implement the HREOC findings, to a Senate committee simply delays something that has been on the public agenda for years and has been examined in minute detail by HREOC, as I have sought to outline. Time is of the essence in relation to these matters. Same-sex couples and their children have waited too long for this discrimination to be removed from the Commonwealth legislation books. The tax arrangements that would apply if this bill were passed quickly should come into effect on 1 July, and the opposition’s position will delay that. Every death that takes place from now on before the legislation passes will see a reversionary benefit denied to same-sex partners or the children of non-biological parents in a same-sex relationship.
The second point made by the Leader of the Opposition goes to interdependency—again, a fairly predictable point raised by the opposition. Again, the House has a standing committee which is currently inquiring into interdependency issues. The Standing Committee on Family, Community, Housing and Youth is currently conducting an inquiry into the question of interdependent relationships, and it is more than appropriate, in our view, that that question be considered by that committee. This legislation seeks to deal with a range of family relationships which operate under same-sex couples and are quite different in type from the interdependent relationships outlined by the Leader of the Opposition. The government’s position is that those relationships deserve attention and examination but that there is a process in place that will do that and that that process should be allowed to continue.
One of the other aspects of this bill, and the bills that will follow it, that is incredibly important is to make uniform across the nation the way in which same-sex couples and their children can access these newly-won rights. The various bits of state legislation that have passed in this area frankly contain fairly inconsistent approaches to this. The Labor Party’s position on this is well known and was taken to the last election. We favour a system of registration based on the Tasmanian scheme and schemes which are either newly in place or soon to be in place in Victoria and the ACT. There is, for example, no such system in South Australia, which has relied instead on a range of qualifying criteria, and it is the view of the government that those different arrangements need to be brought into line.
Again predictably, the Leader of the Opposition’s address on this bill contains something of a scare campaign around the sanctity of marriage. Well, the position of the government is quite clear on this point. Our policy was quite clear before the election and it has been quite clear since. For that reason we have sought to bring in bills that focus, instead, on practical discrimination. The Labor Party has supported changes to the Marriage Act in recent years, and to say that these bills might somehow affect a completely different piece of legislation—the Marriage Act—is to draw a very long bow and to engage in nothing more or less than a scare campaign. To paraphrase HREOC, all that this bill seeks to do is to focus on ensuring that all couples have the same rights, whether or not they are married.
In conclusion can I say that this is the most significant advance in the rights of gay and lesbian Australians since the decriminalisation of homosexuality in the 1970s. This stain has remained on our nation’s soul for far too long and it is high time that it is removed. I commend the bill to the House and I urge the opposition to allow it to pass forthwith.
I welcome the opportunity to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. This bill continues the long march towards the removal of unfair discrimination against Australians on the basis of their sexuality. Liberals initiated that march. Murray Hill, a Liberal member of the Legislative Council in South Australia, introduced a bill in 1972 to decriminalise homosexuality in my own state. John Gorton, a Liberal Prime Minister, moved the first motion in the House of Representatives to address homosexual law reform. In 1973 he moved that ‘in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law’. This was the first time that any member of this House had tried to address unfair discrimination against members of the Australian population on the basis of their sexuality.
In the previous government, steps were initiated to remove discrimination against people on the basis of their sexuality. Superannuation laws were changed to include same-sex partners as potential beneficiaries of death benefits in certain circumstances. The Income Tax Assessment Act, the Superannuation Industry (Supervision) Act and the Retirement Savings Accounts Act were amended to expand the potential beneficiaries of tax-free superannuation death benefits to include ‘interdependency relationships’. These included same-sex relationships.
The momentum occasioned by those changes and the report of the Human Rights and Equal Opportunity Commission in 2007 entitled Same-sex: same entitlements, which recommended the amendment of 58 laws that discriminate against same-sex couples, caused me to reach the conclusion that reform in this area would have come no matter the outcome of the election on November 24, 2007.
Recently, in April of this year, the State Council of the Liberal Party of Australia in South Australia, led by the President of the South Australian Young Liberals, Hannah Treloar, passed a policy motion that called on the federal government to introduce omnibus legislation to deal with 58 federal laws that will redefine the terminology used in these laws by inserting a new definition of de facto relationship and de facto partner that is inclusive of same-sex couples. This bill is the first of two bills that will effect that long-overdue reform.
So, the members of the Liberal Party in South Australia, like the rest of the community in general—in all but a handful of cases—have no desire to further an outdated, archaic and discredited view in relation to discrimination against members of same-sex couples. Further, I am glad to be able to say that I speak in concert with the federal platform of the Liberal Party of Australia. That platform condemns ‘narrow prejudice’ as ‘an enemy of liberalism’ and commits its members to oppose ‘discrimination based on irrelevant criteria’. It is a platform of long standing—hardly the work of a party seeking to entrench the ignorance that would lead anyone to treat another differently because of their sexuality.
As my esteemed colleague the now shadow Attorney-General, Senator the Hon. George Brandis SC, said in a debate in the other place in October 2006:
It is far too late in the day for anyone sensibly to suggest that in Australia there is a place for discrimination against people on the grounds of their sexuality. That attitude reflected the prejudices of a different time and a different age which are now obsolete and must be seen to be ignorant.
I abhor discrimination in all its forms. Discrimination on the basis of ethnicity, religion, gender, disability, age or sexuality is to be condemned. The philosophy of liberalism does not countenance discrimination.
This bill acts in an area which is long overdue: the discrimination that exists against same-sex couples in the treatment of tax and in the payment of superannuation benefits. I congratulate the government for introducing it. It is the first of what I understand are two bills: this one and an omnibus bill that will implement the recommendations of the HREOC report that I have referred to and, besides that, will amend more than two dozen bills.
This bill is supported by the opposition in both its principle and its reach. Like all packages of legislation of great import it is intended that it will be examined by the Senate Legal and Constitutional Affairs Committee in order to ensure it does what the government says it does. The same process has been followed since time immemorial. It is not a delaying tactic any more than the committee’s inquiries into the republic and preamble bills, the amendments to the Australian workplace or the introduction of the new tax system were delaying tactics. With an issue of such importance and magnitude, it would be more unusual if there were not such an inquiry. That said, an inquiry into this bill in particular should be able to be completed before June 30—an outcome that I would welcome.
The opposition would like to see the definitions in this bill refined to clearly encompass bona fide interdependent domestic relationships. To me, the bill does not rise or fall on this point, but it would properly recognise that, from a financial and property ownership perspective, ensuring clear definitions in the bill that included bona fide interdependent domestic relationships would benefit many households that encompass many of the hallmarks of same-sex couple relationships. Some of these have been outlined by the Leader of the Opposition.
There are some who seek to characterise support for this bill as a diminution of support for the family unit. This is a false dichotomy. The family is a robust unit in our society. It is in no way threatened. It does not need to be buttressed by diminishing the rights of others. Do these people who make such a claim believe that the family unit will be threatened because discrimination in superannuation and pension schemes based on sexuality is to be removed? Of course it will not be threatened. In a wider sense, fellow Australians with a same-sex orientation do not suddenly cease to be members of a family—they are brothers, sisters, sons, daughters, neighbours and friends. In some cases they are fathers and mothers. In the modern era everyone has an equal part in making our society great. Removing discrimination is far from controversial; it is overdue.
This bill amends the superannuation and pension schemes under the Defence Forces Retirement and Death Benefits Act 1973, the Defence Forces Retirement Benefits Act 1948, the Federal Magistrates Act 1999, the Governor-General Act 1974, the Judges’ Pensions Act 1968, the Law Officers Act 1964, the Parliamentary Contributory Superannuation Act 1948, the Superannuation Act 1922 and the Superannuation Act 1976. It also amends five regulatory superannuation and taxation acts. It is a precursor to the second bill, which will come in the next session of this parliament, which will be more far-reaching in its elimination of discrimination. Currently, the same-sex partner of a beneficiary in a Commonwealth defined benefit superannuation scheme and the children of that relationship are not entitled to direct access to reversionary death benefits on the death of the beneficiary. To change that position, the bill amends the acts to replace ‘marital relationship’ with ‘couple relationship’ and ‘husband’, ‘wife’ and ‘spouse’ with ‘partner’. A couple relationship is defined as having existed when a person ordinarily lived with another person as their partner on a permanent and bona fide domestic basis. To establish such a relationship requires evidence that: the person was wholly or substantially dependent on the other person at the relevant times, they were legally married to each other, they had a child or had adopted a child during their relationship, they had jointly owned a home which was their usual residence or the relationship was registered under a prescribed law of a state or territory as a prescribed kind of relationship—in other words, a relationship not unlike the current definition of a de facto relationship in law. There is some suggestion that a non-sexual interdependent relationship may qualify as a couple relationship under this definition. This is a matter to be properly inquired into by the Senate Standing Committee on Legal and Constitutional Affairs, if the Senate should decide to make such a reference to that committee.
In relation to children, the amendments define the child of a couple relationship as: a child born of a couple relationship, a child adopted by the people in the couple relationship during the period of the relationship or a child who is the product of the relationship. For a child to be the product of the relationship, the child must be the biological child of at least one person in the relationship, conceived using the gametes of one party to the relationship or the birth child of a woman in the relationship. Thus, a child of one party to a previous relationship would not be considered the child of the other party for the purposes of the amendments. As the Leader of the Opposition has made clear, the status of children within the ambit of the bill is something the opposition believes should be made clear. Again, this is a matter to be quite properly inquired into by the Senate Standing Committee on Legal and Constitutional Affairs should such a reference ensue. As to non-sexual interdependent relationships, the intention of the drafters was not to include them in the current round of legislation. However, because the bill provides for recognition of relationships registered under state and territory legislation, some such relationships will be included. Just how this will be achieved and the reach of the legislation is something not entirely clear in the bill and a matter that the Senate Standing Committee on Legal and Constitutional Affairs will address, I am sure, if a reference is made to it.
The government has described the bill as ‘time critical’ because it will allow payment of reversionary benefits to partners and children who have no entitlement under the current law. It hopes to enact the legislation before 1 July in order for the taxation consequences of the amendments to apply in the 2008-09 financial year. It is not the intention of the opposition to frustrate this legitimate intention; however, the bill’s introduction has been delayed some time by the government’s own actions. While this is unfortunate, it is not the fault of the opposition. The government has entirely itself to blame for this delay. If there is a criticism to be made here, the cards must fall at the feet of the Attorney-General, and no-one else. The timing for the consideration of this bill lies with the Senate. The Senate Standing Committee on Legal and Constitutional Affairs will determine—should it receive a reference—if the bill can be appropriately considered and dealt with by June 30. Many of the concerns of my colleagues will be able to be addressed by a reference to the Senate Standing Committee on Legal and Constitutional Affairs, still others are matters for the omnibus bill to come. In the meantime, I support this bill and I support the opposition position that it go forward at the second reading without substantive amendment. I commend the bill to the House.
I rise to speak in support of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. The conviction and the force with which the member for Sturt came into this House this afternoon indicates to me the genuineness with which he believes this. But it must have been difficult for 11½ years to sit in a government—a ministry—in which he did nothing. The ‘march to reform’ he referred to was really a screaming halt, characterised by inertia and procrastination. The Leader of the Opposition said that the Liberal Party yields to no-one with respect to these matters. Where were they for 11½ years? The best and most charitable thing I can say about them is that they are inconsistent in their position now. They talk about delays and blame the Labor Attorney-General. Where were they for 11½ years on this, and other issues such as family law reform in terms of the rights for same-sex couples to bring proceedings for property settlement in the Family Court. They opposed it. They opposed reform in that area and they opposed reform in this area simply by doing nothing—there was idleness, indolence and nothingness. To feign concern now, and to delay this, simply says everything about their attitude.
I am sure there are people in the opposition who genuinely support this, but there are others who do not. I wish the opposition leader had made the same speech as the member for Sturt, because I would have thought more highly of him. I think that the member for Sturt made a great speech and a great contribution. Unfortunately, it is not believed by the rest of his colleagues, and this amendment is simply a compromise to cover the cracks between the conservatives and those few remaining ‘small l’ liberals opposite. That is exactly what it is about. This response is about a division in the opposition, nothing more and nothing less. And the delay tactics mean that economic justice to same-sex couples will be delayed, because we know that that Senate Standing Committee on Legal and Constitutional Affairs will not report until September. What they are about is delay. That is what it is about, nothing more and nothing less—papering over the problems in the opposition, procrastination and the extension of discrimination. That is what it is about. It is interesting because the opposition leader said on the Insiders program on 2 December 2007:
... I believe very strongly that the economic and social injustices faced by homosexual people across this country need to be addressed, from taxation to social policy issue.
Where was the bill? Where was the opposition bill when they were in government? Where was the private member’s bill by the member for Kooyong? Where was the member for Sturt’s bill in relation to this particular matter? It was nowhere to be seen. Why? Because the previous Prime Minister opposed it and they knew they did not have the numbers. That is exactly what it is about.
There is no need for an affirmation of the centrality of the institution of marriage to Australian society, because there is bipartisan agreement in relation to the Marriage Act. It is also recorded in the old 19th-century definition of the whole common-law case of Hyde v Hyde from the UK in relation to marriage. It is in the Family Law Act and it is in the Marriage Act. There is no need for this. And to say that somehow it is somehow necessary to look at these interdependence relationships in this context is simply a way to fudge the issue and to put off resolution of an issue which has been going on for year after year. That is all that it is about. It is exactly what it is about.
This bill will help tens of thousands of Australians and their children. It is a clear demonstration of the Rudd government’s commitment to equality before the law, to the notion of non-discrimination and to the principle that the best interest of children is the paramount consideration in all legislation which affects their rights. This bill ends discrimination in laws in relation to superannuation and taxation which deprive some Australian adults and their children of the same rights to financial and other entitlements that other Australian adults and their children enjoy. The 2001 Australian census suggests that there are about 20,000 same-sex couples living together in domestic arrangements in the one house. Of those 20,000 couples, about 20 per cent are lesbian couples and about five per cent are gay male couples with children. I think that is conservative. Like many in this House, I have gay and lesbian friends and relatives. I think it is fundamentally wrong and indecent that they are deprived of the same rights to pensions, superannuation and taxation benefits as I have. It is wrong. It is simply wrong. Why should people who live in relationships of intimacy, love and commitment be denied the same pecuniary rights as others? It is an indictment of the previous Howard government that this discrimination went on for so long.
The Rudd government is committed to ending this practice and is equally committed to treating all Australians equally when it comes to work related benefits and superannuation. This is the first stage in our plan to ensure legal treatment of same-sex couples, particularly in terms of evidence, administrative law and other areas. It is the government’s response to the Human Rights and Equal Opportunity Commission report which was tabled in this House on 21 June 2007. Where was the legislation by those opposite after that? It did not happen. A total of 58 federal laws were identified as discriminatory by the commission, but our audit said that it is a hundred federal laws or even more.
This bill ends discrimination against same-sex couples and their children. There is a whole raft of legislation that has been dealt with. I am not going to go through and list those off, because the member for Port Adelaide and those opposite who made contributions have mentioned them. Presently, the same-sex partner of a beneficiary of a Commonwealth superannuation scheme which is a defined benefits scheme is not entitled to what are known as reversionary death benefits on the beneficiary’s passing. In my practice as a family lawyer before I came to this House, I had many gay and lesbian clients. I knew the discrimination that I dealt with every day in terms of the challenges they faced and how they were dealt with differently. This bill deals with death benefits, which will help them where there is no current entitlement. I am sure there are many clients of mine from my old law practice who will be very pleased with this legislation.
I am not troubled by this change of reference from ‘marital relationship’ to ‘couple relationship’. I am not sure that anyone should be fazed about it. I am certainly not troubled by it. I have been married for a long time and it does not worry me if someone is defined as being in a couple relationship. It does not make my marriage to my wife Carolyn any less valid, or anyone else’s relationship any less valid or important. This change is important for children as well, because they will inherit the benefit. They will get the benefit they deserve. Interestingly and appropriately, the new definitions overcome difficulties arising from surrogacy issues where even children of a heterosexual relationship may presently fail definitional requirements in these acts.
These reforms also dovetail with the position adopted at the national conference of the Australian Labor Party, a position I supported as a conference delegate from Queensland and I am now pleased to support as the member for Blair. The national conference of the Australian Labor Party adopted the position of supporting a consistent national approach to the issue of people’s relationships being registered under state or territory law based on the Tasmanian and the Victorian model. I supported it at the national conference in Sydney. I support it now.
This bill overcomes the challenges that were left by the Howard government. It is a fair and humane bill. It ends disadvantage. It has got nothing whatsoever to do with gay adoption, gay IVF or civil unions. It ends disadvantage and it is consistent with Labor’s long-held belief in equality of opportunity and equality before the law. The bill is long overdue. It will help surviving partners and the children of the deceased with financial security. It is hard enough to cope with the loss of a loved one—a lover, a friend, a mother or a father—hard enough to handle the bereavement, without being able to be sure about the inheritance or financial support you might have been expecting.
This bill is not about undermining the traditional commitment of marriage contained in the Marriage Act. It is a position which the Rudd government supports. I know that in my electorate there are many with religious faith and many without such convictions who would support this bill. As a Christian I have no problem whatsoever supporting this bill. I do not believe it is appropriate to discriminate against people and I do not believe that it in any way interferes with my religious faith or convictions. And I do not think that the God that I worship at my church is in the least bit offended by the fact of this legislation. I do not believe that God shows any partiality when it comes to these matters. I do not believe that this bill in any way derogates the traditional institution of marriage, and I believe it is a discredit to the Howard Government that they failed to produce legislation like this.
I urge the opposition, who did nothing about this for 11½ years, to consider the children and adults who may survive parents or partners who will die in the next few months. I implore them to support this bill. I ask them to reconsider their position, because I think it is important that in this parliament we show where we stand on the issues of nondiscrimination, equality before the law and financial security for all Australians.
The government’s Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 is proposing to provide equality of treatment between same-sex couples and opposite-sex de facto couples in nine pieces of legislation. This is apparently the precursor to a larger, omnibus bill that is seeking to amend a raft of Commonwealth legislation to remove discrimination against people in same-sex relationships. Whilst not denying the government a second reading of the bill, I strongly support the coalition putting this bill to the Senate Standing Committee on Legal and Constitutional Affairs for greater scrutiny and amendment if needed, as I have significant reservations about the wording of the bill. The bill in its current form is not supportable—though, in fairness to the Attorney-General, this may just be due to drafting.
By way of background, the Liberal Party is the party of the individual, of free enterprise, of opportunity. We believe in families as the bedrock of this nation. We believe that marriage is between a man and a woman. We do not believe that gay marriage, gay adoption, gay surrogacy and gay IVF should be permitted. This is based on the firm conviction—we believe, shared overwhelmingly by ordinary Australians—that children do best when raised by a mum and a dad and that nothing should be done by the parliament to make it likely that more children will be raised by same-sex couples, who by definition cannot provide a child with a mum and a dad. I fully support these views and will defend them in this House till I draw my last breath. I will not support anything that seeks, even in small part, to undermine marriage as being anything other than between a man and a woman.
I do support financial and property justice for all people, regardless of their interdependency, sex, colour, creed or sexual orientation. You should not have to pay a single dollar more in tax or receive a dollar less in government support just because you are living in an interdependent relationship, such as two sisters living together, a disabled person living with a family or those in a same-sex relationship. Financial and property justice transcends all of these issues. Yet there are elements of what the government is proposing that, on the surface, are of concern.
Firstly, this bill is being debated in isolation, not in cognate with the other, omnibus bill that is soon to follow. This body of legislation deserves to be debated in cognate, as a whole, so the full impact of what is being proposed can be evaluated. The government has flagged something like 100 pieces of legislation as needing amendment, yet the Human Rights and Equal Opportunity Commission’s National Inquiry into Discrimination against People in Same-Sex Relationships only listed 58 laws. Thus, some could treat this series of bills with suspicion because the number of laws has increased by 42.
Secondly, this bill is being rushed through the House as part of 22 bills that the government want pushed through in a few days, even though the Senate cannot review them until 16 June. The question is: why rush this bill? If it is so important, why wasn’t it tabled months ago instead of today, in June? Why try and push it through with a raft of other bills?
Thirdly, I contend that the overall issue is not about same-sex relationships but about interdependent relationships, of which same-sex relationships are but a subset. Two sisters living together or a disabled person living with a loving family—all sharing finances and expenses, domestic requirements and for all purposes living interdependently—are as deserving of changes to Commonwealth legislation as two women engaged in a sexual relationship. This bill should not just be for same-sex couples; it must recognise the wider issue of interdependent relationships.
Fourthly, this bill is seeking to achieve its aims through removing all references to ‘marital relationship’ and replacing them with ‘couple relationship’, and replacing ‘husband’, ‘wife’ and ‘spouse’ with ‘partner’. The explanatory memorandum states:
The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.
Whilst taking the Attorney-General’s comments through the memorandum at face value, this seems illogical. It is hard to see how removing references to marriage through as many as 100 bills does not slowly chip away at the institution of marriage.
It is interesting to note that justice in superannuation and indeed other acts may be able to be achieved by simply adding a new category, such as interdependency, into the relevant laws. There would not appear to be any need to undermine ‘marriage’ through removing all reference to marriage, wife, husband or spouse.
Fifthly, according to the second reading speech, the bill proposes to redefine a child as ‘a product of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child’. The impact of this depends on the existing definition of a child in each affected law. If there is a presumption that a child has one father and one mother then this will be an undesirable move, as the existing definition will be replaced. This change could directly favour and support the practice of ‘gay IVF’ by proposing to treat the lesbian partner of a woman who has a child by artificial insemination or IVF as a legal parent for the purposes of all Commonwealth law. The changes may also propose to treat all de facto partners—opposite sex and same sex—of people with children as having a step-parent relationship with their partner’s children. At present only marriage creates a step-parent/step-child relationship.
Given the higher break-up rates and shorter duration of non-married relationships, especially same-sex relationships, compared to marriages, I do not believe this measure is in the best interests of children. Children whose biological parent or parents participate in a series of de facto—opposite sex or same sex—relationships could accumulate an indefinite number of legally recognised ‘step-parents’ under the current wording. Any such legal recognition of a parent-child relationship would, unless statutory provisions to the contrary are explicit, survive the break-up of the relationship between the child’s biological parent and the ‘step-parent’. This has serious implications for family law, as each ‘step-parent’ could potentially be able to advance a claim to access or even gain custody of the child. Having a sexual relationship with a child’s parent should not be sufficient grounds for acquiring legal status as a parent of a child! Our children deserve greater protection than that.
Lastly, private organisations such as health insurance funds should not be legally bound to recognise homosexual couples and children as families. Some funds may have an ethical objection to this and they should retain the right to uphold their views of what constitutes marriage and family life. Market forces will regulate this, as they do at present, as some funds provide for homosexual families and others do not.
I support the coalition’s intent to move this bill to the Senate Standing Committee on Legal and Constitutional Affairs for consideration and amendment if needed, as the bill in its current wording is unsupportable.
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 is long, long overdue. I thought the opposition was supporting this bill, although they have moved an amendment, which starts by saying, ‘Whilst not declining to give the bill a second reading,’—and, listening to some of those opposite speaking in the debate, you would wonder. I also note at the outset that we are restricted in time; there is a lot of business to be dealt with. Whilst many of us would like to make a more extensive contribution, in consideration of others, that is not possible.
I do not want to go over some of the things I have previously said in this parliament about the importance of removing discrimination against people based on their sexuality or other similar defining aspects of their life. I am, however, amazed at the continuing position of the Liberal and National party members who seem unable to address this issue without trying to provide some political spin, as John Howard did a couple of years ago when he sought to introduce into the legislation of the land a definition of marriage. Contrary to what most may believe, that definition of marriage was not in legislation until a few years ago. The definition of what constituted marriage in Australian law was determined through common law, and that is a system which had evolved over a couple of centuries and was seen on a bipartisan basis to be a far better way of addressing this issue. I want to go to that because it highlights what I think is a level of duplicity that enters this debate when people try to deny the same rights to others purely on the basis that they may be in a same-sex relationship or that their sexual preference may be different.
The Australian law until a couple of years ago was predicated on both Australian and British common law going back some centuries, best encapsulated by a decision of Lord Penzance in England in 1866 when he said this:
... marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
That definition basically stood the test of time until quite recently. It has been changed in a couple of respects around the world to reflect different attitudes in the community, but I find it amazing that some of those opposite can be so accommodating of certain changes that happen to suit their personal lifestyle and then denigrate others and try to prevent others from having equal rights. That definition held and, indeed, one of the early debates in this parliament about introducing a definition into the legislation was in 1961. A debate occurred in the Senate in which an amendment was moved to legislation then before the parliament effectively to insert these words:
‘Marriage’ means the voluntary union of one man with one woman, for life to the exclusion of all others.
That is remarkably similar to the common-law position at that time, which had been enunciated 100 years earlier.
That particular wording was put before the Senate in 1961 during a period in which the Liberal Party was in government. Bob Menzies was Prime Minister. It was defeated in the Senate by 40 votes to eight. There was clearly a widespread view across the political divide that these matters are best dealt with in common law rather than statute. That was not good enough, however, in the last parliament. John Howard and the Liberal government wanted to divide and conquer in this area of social engineering. They introduced into the parliament legislation to define marriage. It made no difference to the common law. It did not stop any same-sex relationships being determined as marriage under law, because there were not any under Australian law. It was done as a political vehicle to try and divide, and it was very hurtful to a lot of constituents in my electorate in same-sex relationships. I am amazed to find today that the Liberal Party, after its election defeat and with a new leader, wants to persist with the same approach. The amendment that has been moved by the Leader of the Opposition, in my view, goes down the same grubby path that John Howard went down.
Let us have a look at the difference that has occurred since 1961. I want to read that definition again:
‘Marriage’ means the voluntary union of one man with one woman, for life to the exclusion of all others.
We no longer define marriage that way, even though it was the common-law definition for more than 100 years and even though it was the proposition advanced in the Senate in 1961. We do not define it that way anymore because we have dropped off the business about it being ‘for life to the exclusion of all others’. It is a convenient thing for people in this parliament to say, ‘We don’t have to worry about marriage as a bond between a man and a woman for life; we’ll get rid of the life bit,’ because that does not happen to suit the way those individuals and those they represent want to live their lives. That is the truth of it.
Twenty per cent of marriages in Australia end in the first 10 years, so we conveniently change that part of the law. That conforms to the party set for all of us; you do not get into any trouble by doing that. There are a few people for whom that may have been a convenient change, and they want to have the same rights extended in a second, third or subsequent marriage or relationship as they had in the first, and I have no problem with that at all. But it strikes me as enormously hypocritical that those people who advanced that change, and live their lives in that way, then turn around and say that people in a same-sex relationship do not deserve the same rights at law that they enjoy. That is fundamentally flawed.
I am one of those people who must be approaching minority status in the Australian community. I was happily married very young, before I turned 19. I took advantage of Gough Whitlam’s 18-year-old adult suffrage and said, ‘That’ll do me. I’m 18 and I’m getting married.’ Thirty-four years later I am very happily married to the same lovely lady, Cathy, and we have four wonderful children, but I readily accept that that is not a model of love that suits everybody. The key ingredient that we surely must acknowledge in a relationship is the open, honest, loving nature with which those individuals embrace one another. It is fundamentally wrong for a society to deny people the same rights purely because of their sexual preference or similar personal attributes.
I think that view would be shared by the overwhelming majority of people on both sides of this parliament, which is why the amendment moved by the Leader of the Opposition and Leader of the Liberal Party is not to deny a second reading. But I think in order to pander to the more extreme right-wing conservative group behind him on the opposition benches, the Leader of the Opposition has decided to put a skewer in—another devisive tool, just like John Howard did. It is about time this parliament stopped trying to victimise people because of their sexual preference or other similar lifestyle choice.
The people of Australia elected a Labor government knowing that we had a commitment to remove all discrimination against people based on their sexuality. There was no doubt about that. In fact, we moved private members legislation in the parliament when we were in opposition to try and engender debate in this place on that very point. We also made it clear before the election that we would not alter the legal status of marriage as being between a man and a woman. Our position on that has been clear and often stated, and the people of Australia knew it and clearly took it into account when they decided they wanted a change in government. I say to those people in the opposition, in the Liberal and National parties, who share the sentiments voiced on this side of the parliament about those basic principles: do not allow yourselves to be dragged down by the small rump of extreme conservatives on the opposition benches who cannot help themselves when these issues come up. It is about time—it is past time in the 21st century—that we accord all Australians, irrespective of their sexual preference, the same rights in law.
This is the first step along that road. There will need to be additional pieces of legislation, and I look forward to voting for those additional pieces of legislation. I congratulate the Attorney-General on bringing this before the parliament. I know that the overwhelming majority of people in my electorate share that view—I do not pretend they all do, but I know the overwhelming majority do. What is more, in my heart I know it is right and I am pleased to see a Labor government moving on this fundamental question of civil liberties and human rights so early in our first term.
In rising to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, I am mindful of an old friend and colleague Mr Warren Entsch, the previous member for Leichhardt, who for many years campaigned passionately and diligently for the equal treatment of people in same-sex relationships under our laws, especially our superannuation and taxation laws. In the many times he rose to speak on this subject in our party room or individually with colleagues, or even in private conversations with our previous Prime Minister, his clear advocacy about the unfairness of the discrimination against same-sex couples under our Commonwealth laws that relate to property rights or beneficiary status was understood and accepted by many on our side of the House, as I believe it is by many of my fellow Australians. It is my belief that many fair minded Australians do not accept that the sexual nature of a relationship should have any bearing on the rights to property or the status of beneficiaries under superannuation policies of either of the parties to that relationship.
Having said that, on closer reading of this bill I have some very genuine concerns about other provisions of this legislation, and I support the amendment that has been moved by the Leader of the Opposition. Firstly, it seems to me that this legislation goes far beyond the understanding that I and many reasonable Australians had expected in providing for the property or financial entitlements of people in same-sex relationships under superannuation and taxation legislation. Secondly, I am very concerned about the use of language and the changes to specific definitions in this bill. Thirdly, I am concerned at the speed in which this important legislation is being rushed through this parliament. I am wary of the supposed urgency that forces a bill such as this to be pushed through the House in such inordinate haste. What are the grounds for such urgency? None have been explained. This bill cannot be introduced into the Senate until mid-June and, even then, may be subject to a referral to a Senate committee. If so, the Senate will not be able to debate this bill until the resumption of the Senate on 26 August. This rush of legislation is chaotic in itself. We, as the people’s opposition here in this chamber, do not have reasonable and appropriate time to consider the bill, which may in its ultimate impact on the wider Australian community prove to be destructive of one of the fundamental institutions within our Australia and society—and I do refer to the institution of marriage.
Like my old friend Warren Enstch and many fellow Australians, I want to see those in same-sex relationships be treated equitably under our superannuation laws, but none of us here expected that such provision would be at a risk to the special status that we all agree should be accorded of marriage. I have these concerns because of my initial reading of this bill. I am quite frankly alarmed to see that the terms ‘husband’, ‘wife’ and ‘spouse’ are being deleted and replaced with the word ‘partner’, and the description ‘marital relationship’ is replaced with the term ‘couple relationship’. Many Australians understand and accept that marriage and the family is the foundation institution of our nation. What are these changes to the definitions of such relationships in this bill—which is about superannuation entitlements—if they are not a threat to undermine the special status that marriage has held within our society and culture by homogenising all relationships as couple relationships.
Words are important tools. It is well known that words are the first salvo in any assault of cultural change. Initially, I understood this bill to be about the cause so ardently espoused by my friend Warren Enstch. It does seek to deal with those areas of discrimination in the tax treatment and payment of superannuation benefits for members of same-sex relationships and, also importantly, the children of those individuals. Many Australians may not be aware that currently the same-sex partner of a beneficiary in a Commonwealth defined benefit superannuation scheme and the children of that relationship are not entitled to direct access to reversionary death benefits on the death of the beneficiary partner. This is clearly unjust. By this bill, the government seeks to provide for equality of treatment between same-sex couples and opposite-sex de facto couples. That is fair and far enough. Many understand that opposite-sex de facto couples already have equality of treatment with married couples in Commonwealth laws. However, by this legislation, the government actually proposes to grant equality of treatment between same-sex couples and married couples. On the basis that the government has made clear its commitment to exclude same-sex couples from marrying and thus maintaining the special status and definition of marriage, it is difficult to understand why in this bill dealing with property entitlements the government is changing the definition and special status of marriage to give those in same-sex relationships equal treatment when it is not necessary to do so to achieve the alleged objectives of this bill—that is, to give equal treatment to same-sex relationships and not a disguised tactic to weaken the status of marriage by diluting it to merely a partner arrangement.
At this point, one can logically ask that, if the objective of this bill is to offer equality of treatment to all relationships other than marriage for superannuation and taxation purposes, why should such relationships depend on a definition that describes the sexual nature of that relationship. At this juncture, one can honestly ask: what has sex got to do with it? There are other kinds of relationships which should also be included in this bill. For example, within many Australian families there may be two sisters or two brothers who live together in economically and socially supportive relationships, and many of us have such relationships within our own families. Here we are talking about reversionary superannuation benefits and tax treatment for families. Why should these relationships also not be included in this bill? For example, in 2004 the previous government made amendments to the Superannuation Industry (Supervision) Act 1993 and provided for interdependency relationships under section 10A of that act that covered relationships that could be identified by a shared, close personal relationship and where one or both persons in the couple provided financial support or where one or both provided the other with domestic and personal care. This amendment also made provisions on the criteria by which such a relationship could be identified. Such a new category of a relationship, an interdependent relationship, may have been a better tool by which the government could provide for equal treatment for same-sex relationships without the distortions caused by the language and definition changes suggested in this bill. By such means, all same-sex relationships would have their reversionary rights under the superannuation law recognised, as this legislation seeks to do, without threatening to undermine, deliberately or inadvertently, the unique relationship of marriage within our society.
The language used in relation to children in this legislation is another grave cause of concern for me. While most Australians will agree that any child dependants within the relationship of a same-sex couple should also be able to benefit from the superannuation benefits of the couple, the bill proposes to redefine a child as a product of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child. The word ‘product’ is a highly inappropriate term to apply to a human being because it reduces the person to a commodity. I raised this concern in my speech on the RU486 debate in 2006, in which I expressed concern that in the future a human being would no longer be valued for its intrinsic value as a human life but rather for the use to which it could be put. By the use of this language—by the description of a child as a product rather than an offspring—a child is described as a commodity. Further, this lends weight to the utilitarian view that increasingly is pervading our society. In addition, it is a nonsense to use the term ‘product’ in relation to same-sex relationships, as it is a biological impossibility for a homosexual couple to produce offspring of their own. It would be better language to describe a child in such a relationship as ‘a child born as the result of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the said child’.
I wish to make it quite clear at this point that, while the opposition and the majority of families in my electorate of Hughes accept that people in same-sex relationships are fully entitled to equal treatment under superannuation and taxation laws, as set out in this bill, I remain opposed to gay marriage, gay adoption and gay IVF, because children have a natural right to a mother and a father. I will always uphold the rights of a child against the rights of an adult on any day. My main concern regarding this legislation is that the use of language within the bill represents a revolution in the definition of parent and child under Commonwealth law and I am not sure that this was the intention of the government.
This bill also provides that de facto partners, in opposite-sex as well as same-sex couples, of people with children have a step-parent relationship with their partner’s children. My constituents should be aware that at the present time only marriage creates a step-parent and stepchild relationship. This bill is not a good outcome for such families because this bill is fraught with snares for the unwary. Many of us are fully aware of the high attrition rate and shorter duration of non-married relationships. It is not too difficult to imagine a scenario where the biological parent—or indeed both parents—of a child enters into a series of de facto relationships, whether they in be opposite- or same-sex couples, and the child accumulates an indefinite number of legally recognised step-parents who could, under this bill, be subject to all the legal ramifications such a status would attract.
Such a recognition at law of a parent-child relationship would, failing explicit statutory provisions to the contrary, survive the break-up of that relationship with the child’s biological parent and the new step-parent. This would then have serious implications at family law in that each de facto step-parent would potentially be able to claim access or even custody of the so-called stepchild. Further—and I would have thought of concern to the de facto step-parent—the biological parent could seek child support under the relevant child support legislation. Clearly, this legislation is ill-formed and poorly drafted. Having a sexual relationship with a child’s biological parent should not be a sufficient basis at law for gaining the legal status as a parent of a child and nor should it attract the rights and responsibilities that attend that status under Commonwealth law. I repeat: at the present time a stepchild can only be a child under the care of a subsequent partner who marries the birth parent.
I am sure there would be many de facto couples, including same-sex couples, who will be alarmed at some of the provisions in this bill and the possible consequences. All is not quite what it appears and therefore I do not support what is otherwise a good and welcome piece of legislation. Clearly, while the main objectives of this legislation are welcomed, the language, the complexity and the new definitions that will certainly undermine the institution of marriage cause great concern to me and I believe would certainly cause similar concern to my dear old friend Entchy. However, I support the amendment of the opposition and thank the House for the opportunity to address this legislation.
I am pleased speak in support of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 because I believe all Australians are entitled to be treated equally, regardless of their sex, age, disability, race, religion or sexuality. It is a sad fact of life that many Australians have been discriminated against for too long by Commonwealth laws, and I will tell you the tale of two families and how these laws affect them.
This bill amends the relevant superannuation and taxation acts—that is, 105 discriminatory Commonwealth laws—to ensure a new standard of fairness and consistency for same-sex couples and their children. Under current reversionary superannuation laws, only a surviving spouse or child can receive a reversionary benefit upon the death of a scheme member. In other words, same-sex partners or children of such relationships would have no entitlement to receive reversionary death benefits even if the couple had been together for 10 years, 30 years or even 50 years. This bill will amend the definitions in the acts to make death benefits available to de facto same-sex partners of scheme members and their children. This bill will enable reversionary death benefits to be paid to same-sex partners and the children of same-sex couples. This will be achieved by adding a new concept of a couple relationship, which includes same-sex partners.
As I have said, the bill also allows for the equal recognition of children who are the product of same-sex and opposite-sex relationships. A child for this purpose is the product of a couple relationship, where one partner is linked biologically to the child or where one partner is the birth mother of the child. By applying this definition, opposite-sex and same-sex families are treated equally. This is not an assault on any families. Instead, it is the triumph of common sense.
The new definition will also solve the problems arising from some surrogacy arrangements where even children of an opposite-sex relationship may currently fall outside the defined benefits legislation. By way of example, I inform the House of a particular couple who will benefit from this legislation. To protect their identity, I could call them Dick and Dora from Victoria. However, as their situation has already received much media attention, I will instead call them Senator Stephen Conroy, the Minister for Broadband, Communications and the Digital Economy, the Deputy Leader of the Government in the Senate, from Victoria, and his wife, Paula Benson—and their lovely livewire daughter, Isabella. I have seen Isabella cutting a swathe through the Canberra airport and she seems like quite a child.
Unfortunately, Isabella’s mum was unable to conceive, because she was an ovarian cancer survivor. Thankfully Ms Benson and Senator Conroy received help from two family friends, one of whom donated an egg that was fertilised via IVF using Senator Conroy’s sperm, while the other good friend carried Isabella to term in her womb. Such surrogacy arrangements were illegal in Victoria at the time so Senator Conroy and his partner had to decamp to New South Wales so that they could experience the joys of parenthood. The reality is, as I am sure everyone in the House knows, that Australian families come in all different shapes and sizes and it is appropriate that this House recognises every single one of them. You would have to have a heart of stone to look Senator Conroy, Ms Benson and Isabella in the eyes and argue that they are not a normal family and therefore should not be treated the same before the eyes of the law. This would be a very skewed view of justice. The example of Isabella confirms that these amendments before the House are long overdue. They are only the first step in delivering the Rudd government’s election commitment to remove discrimination against people in same-sex relationships in a wide range of laws and in doing so they provide equal recognition for same-sex couples and families.
I assure my constituents, especially practising Christians and Catholics and people from any other religion, that this legislation before the House is not an attack on marriage. Rather, it is about restoring fairness and equality by ensuring that superannuation and the like is available to all Australians. Same-sex relationships will be treated equally with all opposite-sex de facto relationships. Unfortunately, the media and those opposite have informed us of the opposition’s plan to delay this legislation by referring it to a Senate inquiry and they have proposed an amendment. I do not want to be overly critical of this strategy, but I am very agitated that this will prolong what is basically a simple case of restoring equality to Australian law. I hope that these delaying tactics from the opposition do not deprive same-sex couples of their entitlements for one minute more than is necessary.
The Commonwealth has already been slow to remove all forms of discrimination from legislation in terms of the history of Australia. Meanwhile state and territory governments have stolen a march on us by already doing so. Not only is this legislation promoting the right thing to do, but in certain cases it is actually an international prerequisite for the Commonwealth of Australia to live up to our international obligations under various human rights treaties. I am very proud to rise tonight to support this bill because I know it will make a real and practical difference for many Australian families.
I know that this legislation is a little bit confronting to some people. Particularly for those of faith, it might be a little troubling; it might be even a little confronting. For this I apologise. I do not wish to offend anybody, especially those people in my electorate. I might even cop a bit of a hard time at my own church on the weekend. I had a lovely conversation with Archbishop John Bathersby last Thursday night. He spoke glowingly about my deceased aunty Judy Jones and my uncle Lionel Jones, who he went to school with, and also my mother. In fact if I recall correctly, he might have called my mother a ‘living saint’. So there you go: despite all my prayers with the sisters of St Joseph’s, Mum got the jump on the blessed Mary Mackillop.
To return to the legislation before the House, I look forward to sitting down with anyone who has concerns about this legislation and explaining why I feel compelled to speak in support of this law. To all those people who will insist on quoting the Old Testament to me, I say two things. Firstly, I am pretty sure there was actually a sequel to the Old Testament. Secondly, I ask you to invite me to your church, temple, mosque or local hall to talk about this legislation. Do not condemn me until you have had a chance to have a yarn and understand my motivations. Hopefully it will not end up like that line from Yeats:
The best lack all conviction, while the worst
Are full of passionate intensity.
The last family I wish to refer to in support of this legislation is one that is very close to home—my own family. I grew up in a family with 10 kids, seven of them boys. One passed away when he was young but the other six boys and three girls all grew up in a small country town. Like most country towns in Australia, footy was king and netball was queen. Despite the examples set by all of his older brothers, my youngest brother, Nick, never really played footy. Not surprisingly, he came out of the closet even before he had finished high school! I say this tongue in cheek but that is the reality. Coming from a country town, it was difficult to come out of the closet but that is what my youngest brother did. There were prejudices in my youth in terms of looking at people who played footy. Nick will no doubt give me a hard time when he reads this speech, which he has given me permission to make, but I hope that one day my darling brother, Nick, will be the beneficiary of the legislative changes we have placed before the House.
I wish to also talk about another brother, my older brother Simon, who did play footy, just to confuse the stereotypes. In fact my brother, Simon, made the Queensland Schoolboys Rugby League team as hooker even though he was only in grade 11 and lived 600 kilometres west of Brisbane. He was the best footballer by far in my family. Nevertheless, the town of St George had to recalibrate its manliness criterion when my brother Simon also came out of the closet much later. Simon has been in a relationship with Michael Threlfo for over 10 years. Michael, or ‘Comrade Darling’ as I and his friends call him, is a very good Catholic boy. If you are listening tonight, Archbishop Pell, please close your ears! Michael goes to church with my mum whenever he is up in Queensland. Why should Michael and Simon and my brother Nick be treated differently to me and my wife? Michael and Simon are fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means and warmed and cooled by the same winter and summer as any Christian or any other member of our community. If you prick them, do they not bleed? If you tickle them, do they not laugh? Well, maybe not Michael! But my question remains: why should Michael and Simon be discriminated against?
I stress again that we are not suggesting any tinkering with the Marriage Act. The Rudd government is simply talking about introducing fairness and removing discrimination in laws pertaining to superannuation, taxation and social security. Unfortunately, there will be some people in the community who will argue that we should maintain the status quo and should continue and protect the discrimination. I ask you to please look in your hearts. Please think of the consequences of such negativity. Think of Isabella, Simon, Nick and Michael. How could you not but change? To quote the great Australian poet Bruce Dawe:
How to go on not looking
despite every inducement to the contrary
… … …
How to subdue the snarling circle of ifs
by whip-crack, chair-twirl, seeming to look each steadily
in the eye while declining to unwrap
the deadly golden bon-bons of their hate ...
This is not the time for hate. I hope that my brothers, Nick and Simon, are the beneficiaries of this legislation. For too long this wrong has been ignored. Now is the time for all fair-minded Australians to speak out in support. I proudly commend the legislation to the House.
I speak today in support of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. This bill initiates a process of long overdue reform to remove discrimination against same-sex couples and their families from the federal statute book, beginning with superannuation. In 2004, the coalition government improved access to superannuation for interdependent and same-sex couples in private funds. A similar move was proposed for Commonwealth superannuation. This extension had not taken place by the time the government was replaced in the 2007 election. Today, discrimination on the grounds of sexuality still exists in administrative areas of federal legislation, including taxation, social security, superannuation, health care and employment.
On 21 June 2007 the Human Rights and Equal Opportunity Commission tabled in parliament the final report of their Same-sex: same entitlements inquiry. Conducted over a 14-month period, the inquiry included an extensive consultation and review process which heard firsthand of the impact of discriminatory laws on same-sex couples and their children. It concluded that same-sex couples in Australia:
... experience systematic discrimination on a daily basis.
Same-sex couples are denied the right to carers leave when their partner falls ill, they incur higher health costs because they are unable to access Medicare and Pharmaceutical Benefits Scheme safety nets as a couple and they are excluded from numerous tax concessions enjoyed by opposite-sex couples. As partners of federal government public servants they are denied access to certain superannuation and death benefits. As partners of veterans they are not entitled to a range of pensions or concessions and in their old age they pay more for access to aged-care facilities.
HREOC found that 58 federal laws relating to finance and work related entitlements discriminate against same-sex couples and that this discrimination constitutes a breach of the International Covenant on Civil and Political Rights. Where these same laws discriminate against the children of same-sex couples, it found them to be in breach of the Convention on the Rights of the Child. HREOC described these breaches as:
... contrary to one of the most fundamental principles of international law: the right to equality.
The recommendations of the Same-sex: same entitlements report form the basis of the reforms before us today. When HREOC handed down its report in June last year, the then government—the Howard government—committed to review the commission’s recommendations and confer with interest groups in preparing its response. The response was not formalised before the 2007 election, but the Labor Party, as part of its election campaign, committed itself to implementing the HREOC reforms in full.
On 11 March this year I placed on the Notice Paper the question of when the government intended to implement the recommendations of the Same-sex: same entitlements report. I thank the Attorney-General for his answer and I welcome his commitment to eradicating this discrimination by implementing all the necessary legislative changes.
The amendments proposed in this bill have been prioritised due to the time-critical nature of the reforms that will allow reversionary death benefits to be paid to same-sex partners and their children where they presently have no entitlement. As the House is aware, the opposition proposed to refer the bill to a Senate committee to ensure it removes discrimination against people in same-sex relationships without unintended adverse side effects. Such references are the norm and I trust the committee will undertake its review expeditiously so that this reform can be implemented as planned on 1 July 2008.
The same-sex relationships bill addresses the discrimination identified in the HREOC report by amending 14 Commonwealth acts. Some of these govern particular superannuation schemes while others regulate superannuation and related taxation more generally. The affected superannuation schemes include—and I will only name a few—the Commonwealth Superannuation Scheme, the scheme under the Superannuation Act 1922, the Governor-General Pension Scheme and the Parliamentary Contributory Superannuation Scheme.
Same-sex couples are particularly adversely affected by current discriminatory legislation in the area of death benefits. Generally, superannuation savings flow through to the family of the beneficiary. But for same-sex couples this is not always the case. Because Commonwealth superannuation schemes require the couple to be of the opposite sex, same-sex partners may be ineligible to access their deceased partner’s entitlements. Alternatively, if they qualify as the beneficiary’s dependant they may receive an amount far less than that awarded to a spouse. In particular, a same-sex partner cannot normally receive a reversionary benefit. This inequity flows through to the children of same-sex relationships who may also fail to qualify for entitlement. But the impact is not just pecuniary. As one federal government employee expressed to HREOC:
I write to you to highlight the real consequences that the Commonwealth’s active discrimination of people in same-sex relationships have had in my life. I felt sick when I realised that once again the loving and supportive relationship I had with my same-sex partner, was not supported by the legal and social systems under which I conduct my daily life.
This bill creates equal treatment for same-sex and opposite-sex couples in superannuation legislation. It amends the legislation by removing the term ‘marital relationship’ and replaces it with ‘couple relationship’. It also changes the terms relating to the members of that relationship from ‘husband and wife’ to ‘partner’. Similarly, gender-specific terminology such as ‘widow’ is changed to the gender neutral ‘spouse’. I emphasise that removing discrimination offers nothing more and nothing less than equality. This bill does not introduce new entitlements for couples and families. It simply creates a long-awaited parity between same-sex and opposite-sex relationships with respect to existing entitlements. I also know—and it is sometimes glossed over on occasions—that the impact of equality will be negative on some same-sex couples. They will be treated in ways where they will lose benefits, not just gain them.
I have mentioned previously that HREOC identified 58 separate pieces of federal legislation that discriminated against same-sex couples and their children. I understand that an audit commissioned by the government earlier this year identified approximately 100 areas of discrimination. I welcome the government’s commitment to introduce legislation which will end discrimination against same-sex couples in federal law across all areas identified by the government audit.
That these future reforms occur in a timely manner is crucial. As a society, we do need to face up to the fact that discrimination devalues our society. I should note that there have been concerns expressed about some issues this bill raises: that of interdependent relationships and the definition of the child. With respect to the first issue, it was an election commitment of the coalition government to ensure that all permanent interdependent domestic relationships, including but not restricted to same-sex couples, are treated equally in relation to financial affairs. I call on the government to consider extending the reforms to these people. However, I believe that this bill itself should be enacted promptly.
As to the second issue, that of children, this bill defines children of same-sex and opposite-sex couples in the same way and treats them equally for the purposes of superannuation benefits. It leaves in place any difference in the treatment of the children of married and unmarried couples, whether the latter are heterosexual or same-sex couples. With respect to any concerns that this bill devalues marriage, I have to say frankly that I think that these concerns are unfounded.
I would like to put on record my appreciation and thanks for the work that HREOC has put into its report. I believe that the report has played an unparalleled role in bringing these issues before the House today. I would also like to give special acknowledgement to Warren Entsch, the former member for Leichhardt, who put his heart and soul into ending the discrimination faced by same-sex couples. I believe that Warren belongs to that group of liberal statesmen and leaders that acted in the best tradition of the Liberal Party and ended the criminalisation of homosexual acts. I think it was a great disappointment that the coalition government did not resolve this issue while Warren was in parliament.
I would also like to extend my gratitude to all those in the wider community who have worked tirelessly for many years in the effort to end discrimination on the grounds of sexuality. I look forward to the promised further legislation to remove discriminatory provisions and I congratulate the government for commencing these important and long-overdue reforms. I commend the bill to the House.
It is indeed a pleasure for me to have the opportunity, brief as it may be, to speak this evening on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. The purpose of the bill, of course, is to eliminate discrimination against same-sex couples and the children of same-sex relationships in acts that provide for reversionary superannuation benefits upon the death of a scheme member and in related taxation treatment of superannuation benefits. The commencement of the amendments to the acts governing the Commonwealth defined benefit superannuation schemes within a short time frame will enable the schemes to commence paying death benefits to same-sex partners of scheme members. Currently, persons in a same-sex relationship with scheme members are not entitled to receive any benefits upon the death of their partners, and any delay in the commencement of the amendments will in fact continue this very blatant discrimination. The reforms will be prospective in operation and the related taxation treatment provisions are expected, we were hoping, to commence on 1 July this year to align with the commencement of the 2008-09 financial year. The amendments in this bill will have a positive impact on same-sex families by enabling death benefits to be conferred on de facto same-sex partners of a scheme member and on the children of same-sex couples in situations where they currently just do not have that entitlement.
There has been an interesting debate going on this evening and I would like to make a couple of passing comments in relation to some of the contributions that I have heard. First of all, I would like to commend my colleague the member for Moreton for what I thought was a fantastic contribution to the debate, bringing a very important human element to the considerations that we are making. I would also like to acknowledge the contribution just made by the member for Kooyong on the other side of the House. There is no doubt that I understand and I have been around here long enough to realise that sometimes when we get what appears to be a controversial piece of legislation—though it should not be—we can imagine that everybody on one side has a view. In this particular case I know very well that there are people on the other side of the House who agree entirely with what we are doing. I hope that they can exercise whatever influence they have within their internal processes to ensure that any reference to a committee is not unduly delayed or held up in any sense whatsoever.
The member for Kooyong just made mention of the previous member for Leichhardt in the last parliament, Mr Entsch. An earlier speaker actually referred to him as ‘my dear old friend Entschy—I wish he was here’. I wish he was too, because he could have been part of a counter to that particular member’s contribution. That particular member’s contribution was very much in the negative and I think it strayed to the point that it had little connection at all to the bill and to the arrangements that we are discussing here this evening. There has been mention made by other speakers about the threat this will be to the institution of marriage. I have tried really hard to find any reference to marriage at all other than an explanation that it has no connection to the institution of marriage. I wish that we could stick to the subject in front of us.
The other thing is the protection of children. I have spoken today to people at HREOC to make sure that I was not misreading this. There is absolutely no threat at all in relation to children; in fact, it is putting them into the correct context in the legal sense. I am pleased to see that that is what this particular bill does.
We have heard about the category ‘interdependency’. I take this opportunity to put my clarification on the record. In 18.3.2 of the HREOC report about this particular subject, the interdependency category question is discussed. The question that has been raised is that the interdependency category does not give full equality to same-sex couples. The report goes on to explain the reality in face of that argument and says very clearly:
The interdependency category has not brought full equality to same-sex couples, primarily because it treats genuine same-sex couples differently to genuine opposite sex couples.
The problems with using an ‘interdependency’ category to remove discrimination against same-sex couples include—
The ‘interdependency relationship’ label for a same-sex relationship mischaracterises a genuine same-sex couple as different or inferior to a genuine opposite sex couple.
It goes on with other very good points. The HREOC report explains very carefully the question of interdependency. Without wishing to be too critical, if the members opposite, or for that matter anyone listening to this debate, have an objection to same-sex relationships generally, then say so, and do not try to mess with this particular bill and this particular debate. This debate is about removing blatant discrimination in the area of same-sex couples on the question of superannuation benefits. It is not to do with children, other than the fact that they benefit as well; it is not to do with marriage; it is not to do with interdependency couples; it is to do with stable, strong, recognised same-sex relationships and the removal of discrimination against them for the purposes of superannuation. It is as simple as that, really, and I wish we could just stick to that and not bring in these other arguments, which I believe confuse the discussion at hand.
The Human Rights and Equal Opportunity Commission found in many instances that the elimination of discriminatory terms in Commonwealth laws is necessary to ensure that our obligations under international human rights treaties are met. That is very important. Currently, under the reversionary benefits schemes, only a surviving spouse or child of a scheme member may receive a reversionary benefit upon the death of a scheme member. The definitions of ‘spouse’ and ‘child’ currently exclude same-sex partners and children of scheme members who are in a same-sex relationship where a scheme member does not have a biological link to the child.
Removing sexuality discrimination does not, as I have said, undermine the institution of marriage at all. In fact, it has nothing to do with it. Removing discrimination is about making sure that same-sex couples are recognised for all practical purposes and have the same entitlements as opposite-sex de facto couples. That is what these government reforms will achieve.
A question that has been raised by some contributors to the debate is: why the urgency? The urgency is really, if we want to call it urgent, because it is about time this was done. Every day that it is not done somewhere in this country someone in a same-sex relationship is losing a partner to death and is being discriminated against under the current law. That is the reason for the urgency. Every day that this act is delayed is another day where we will see that discrimination continue. The urgency is also because it should have been done years ago and it was not.
I take note of the contribution from the member for Kooyong. With the greatest respect to him, I believe him when he says that on receipt of the HREOC report the previous government was planning to go down the path of looking at how it could in fact meet the recommendations of that report. I have to say that the cynic in me suggests, after hearing some—not all—of the contributions opposite, that if they were in government it may not have happened. There are some people who have very strong views, which I respect but which should not be part of this debate, about same-sex relationships generally. I am extremely pleased to be part of a government that is doing this. I know that the Attorney-General has put a great deal of work into this and I know that he is indebted to an incredibly hard working Public Service who have put all their energy into coming up with this package in the time that they have. I know that to be a fact and I would like to join him in congratulating and acknowledging the work that has gone into creating this legislation in the first place.
In the limited time that I have had I am very pleased to have been able to endorse this bill. I remind the Leader of the Opposition of what he said on 30 April, which is not that long ago:
The economic and financial injustices faced by same-sex couples and homosexual Australians are ones that we believe need to be addressed.
But we will not under any circumstances support anything which undermines marriage between a man and a woman, nor will we give any kind of support to civil unions or gay adoption or gay IVF.
But the coalition will certainly support dealing with those things, based on common sense, which means that economic justice is brought to Australians who are homosexual.
This is not dealing with civil unions; this is not dealing with marriage; this is not dealing with gay adoption; this is not dealing with gay IVF. Thank you.
I thank my colleague the member for Cook for allowing me to jump ahead of him in the queue; I will be very brief. I strongly support the object of this legislation, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. Discriminating against people on the basis of their sexual orientation is as abhorrent as discriminating against them on the basis of their religion or their race. That is why I was very proud, as a member of the Howard cabinet, in November last year—having never backed away from my commitment to equal treatment of and justice for people of the same sex who are living together—to be able to announce as part of our election commitment going into the election that the Howard government would recognise interdependency relationships for the purpose of eligibility for death benefits under the Australian government’s defined benefit superannuation schemes. That is essentially the object of the legislation in front of us today.
There has been criticism from the current government’s ranks about the proposal to have this legislation considered by a Senate committee. This is important legislation. It will affect the lives of thousands of people. It will affect the lives of children and it will affect, in very complicated ways, different claimants in the event of somebody dying and there being a range of claimants on their superannuation benefits. So this is an area of some complexity. Having, in my days as a lawyer, practised in the courts and dealt with de facto cases, I readily understand the complexity of some of these issues. Government members should not regard the referral of this matter to a Senate committee, if the Senate chooses to do that, as being in any way designed to frustrate, obstruct or delay the passage of this legislation with a view to delaying the granting of the benefits, the granting of the justice, that this legislation seeks to confer.
The key point that I wish to make now is that if the government wishes to have the benefits of this legislation available to people who would benefit from it, were it to be law today, it could choose to backdate the effective date of this legislation from whenever it chose. We know the tax laws and laws relating to superannuation are routinely—in fact, almost invariably—made effective as of the date of announcement. And it will take some months, often many months, for them to be passed into law. There is no reason why referral to a committee should defer the granting of the benefits that both sides of this House are committed to in terms of substance and in terms of the overall objective. That would ensure that those people who are concerned that they or their partner may die before this bill becomes the law of the land can have their concern set aside, and then the focus can be on the parliament getting the detail and the drafting right.
This is the challenge I throw down to the government: if you are serious about delivering justice to people in same-sex relationships then you can say, as the government, that it will be effective as of budget night, the day after the election or whatever date you choose. It is entirely a matter for the government. It is the government’s liability. It is its money. The only consequence would be that there would be an additional number of people, probably a small number, who would benefit from the additional cost in the scheme of the Commonwealth budget. Having regard to the great objective of equality and equal treatment of people regardless of their sexual orientation, the additional cost is not something that I would imagine would delay or deter members on either side of this House.
So let us stop the slur that suggests that the Liberal Party are homophobic or are trying to frustrate the object of this legislation. The Liberal Party are committed to this. We were committed to this at the time of the election; we are committed to it now. If the government are fair dinkum about it then they can make this change effective from whatever date they choose, and they could do so effective as of tonight, as of budget night or, as I said, as of the day after the election if they choose. Or—and here is a challenge—they could make it effective from the date I made the announcement on behalf of the Howard government which, as I recall, was 9 November 2007. I commend the bill to the House.
I thank the member for Wentworth for his contribution. There are always good contributions from the member for Wentworth. I support the intent of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. I am opposed to discrimination in all of its forms. I am sympathetic to the injustices that this bill seeks to address in respect of property rights. However, I believe the government is risking the good faith that is available for these measures—and there is a large reservoir of good faith for these measures on both sides of this House—with the choice of language in the bill. There are moral absolutes that protect our society which should never be compromised. If we do so then it is at our peril. This bill, in its unnecessary choice of language, takes the chisel to these absolutes.
Language is important, particularly in this place. This is the first of a number of bills that will seek to undermine the primacy of marriage in the language of these laws. The bill removes the terms ‘husband’, ‘wife’ and ‘marital relationship’ from the laws that are subject to this bill and replaces them with other terms: ‘spouse’ and ‘couple relationship’. Some have attributed benign motives of convenience to these changes but I remain to be convinced about this because in the second reading speech the minister said:
It will also be necessary to consider the need for consistency in Commonwealth legislation in relation to the use of terms such as ‘partner’ and ‘spouse’, but these issues can be given further consideration after—
we proceed with the expeditious passage of this very important first tranche of legislative reform.
Other changes, other harmonisations, are afoot.
The language in this bill is seeking to rewrite how we describe marital relationships in our laws. This language I cannot tolerate. Where do we draw the line? Today we debate the removal of these terms in this bill. Some would argue that this issue that I raise is a minor matter. They may be overwhelmed by the significance of putting an end to this injustice relating to property rights—an injustice that I believe must be addressed and an injustice that I would like to see addressed. But where will these changes end? I encourage those who sit opposite and who I have sat and listened to throughout this debate who genuinely support the primacy of marriage between a man and a woman, and who wish to see this principle forever protected in our laws, to challenge the Prime Minister on this matter.
I encourage you not to be taken in just by the symbolism of this moment on an issue where I do not doubt our shared sincerity to end this injustice, but to think again about the language used to give effect to this measure. The bill has defects. They must be fixed. I fear that, as a result of the language in this bill and those that follow, it will not be long before we will be debating in this place a harmonisation of laws bill that seeks to standardise this language across all statutes, including the Marriage Act. I cannot stand idly by and allow this march to undermine marriage to get out of the barracks. I agree with John Howard when he said:
Marriage, as we understand it in our society, is about children, raising them, providing for the survival of the species, and I think if the same status is given in our society to gay unions as are given to traditional marriage we will weaken that bedrock institution.
Again, in relation to the coalition’s action to protect marriage under the Marriage Act, the former Prime Minister said:
... as far as we were concerned, marriage was a voluntary union for life of a man and a woman to the exclusion of all others. Now, that is our view of marriage. It remains our view and it will always be our view of marriage.
The test of those opposite is whether you really agree with this, as your leader promised prior to the last election. The bill does not require the exchange of language but the addition of language. The bill requires the creation of a new provision, in addition to the measures dealing with marriage relationships, to deal separately with the property rights of interdependent relationships, including same-sex relationships. This bill fails to recognise the many other interdependent relationships that exist within our community, preferring to give precedence to same-sex couples. This is another defect in this bill that should be addressed.
The language adopted by the bill seeks to create a fiction in relation to the definition of a child. The bill proposes to redefine a child as a ‘product of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child’. As the Australian Christian Lobby I believe has rightly argued, if ‘product’ is meant to be synonymous with ‘offspring’ then nonsense is being written into the Commonwealth law, as it is a biological impossibility for a homosexual couple to produce offspring of their own. The choice of language to describe a human being as a ‘product’ is also completely unacceptable. Human beings are moral beings—body, soul and spirit. We are not products to be manufactured. We cannot treat the language of life in our laws carelessly, as is the case in this bill.
Some common-sense suggestions have been made to overcome these issues—to retain the existing definition of a child for those in heterosexual marital relationships and then provide a new definition for couple relationships to read ‘a child born in a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child’. Solutions are being put forward by those on this side of the chamber to address these challenges of language to ensure that this bill can become law and the injustices are ended. We want to see the injustices ended but we also want to see the language got right. We want to see the language in a way that protects the things that people in this place have said they so strongly and nobly support.
However, I have a further concern with the change to the definition of a child in that it included as a parent a person with no biological link to the child, who would otherwise in a same-sex couple be denied adoption rights under our laws. They will now receive, under this bill in this specific set of laws, the same recognition as a step, adoptive or biological parent. This language is dangerous and, as I sit and listen to the debate, I do not see an understanding or a willingness to accept the dangers that this language presents. There is no sense of withdrawal on this side of the chamber in seeking to support these laws. We simply make an honest plea that you consider this language carefully and think about the implications of this language for other matters that are held very dear by many in this place. These changes, particularly the last one I have mentioned, open the door to recognition as parents not otherwise available under our laws at a state or federal level, in particular our adoption laws. It potentially recognises what I believe is a violation of the rights of the child. There is often a presumption in this debate and related matters that children are a right, not a gift. We can be obsessed with our rights but there is one class of future Australians that have no rights in this country, and they are the unborn Australians. We talk about our choice and our rights but one thing I have learned, having been a father now for almost a year, is that it is not about you. Children are a gift, a blessing; they are not a right, possession or commodity. I am sure that all in this place would agree with that statement. As those on this side of the House were recently reminded, we owe them safe passage through their innocence.
A right to non-discrimination for children is provided under numerous international conventions. I believe this includes their fundamental right to a mother and a father. John Howard said:
This issue primarily involves the fundamental right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father.
I am married. I am a husband to my wife, Jenny, of 18 years. I am a father to my baby daughter Abbey, our miracle child, a blessing of almost one year. May it never be that any of us can make these statements in this place or anywhere else in the future and be considered politically incorrect in this country. Our institutions of marriage and family are sacrosanct to the wellbeing of our society. These increasingly fragile institutions are under enough pressure from the effects of gambling, substance abuse, violence, pornography, financial stress, work-life balance and good old-fashioned selfishness. We should not add to this fragility the dangerous language contained in this bill.
The fundamental core belief that led me into public life and to my membership of the Australian Labor Party was the need to treat all people as equals—my thorough distaste and abhorrence of discrimination. Freedom from discrimination and a guaranteed equality before the law are some of the fundamental human rights in our society. Article 26 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, states clearly that:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground ...
That is clear and I agree firmly with it.
The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 before us today holds true to those principles and seeks to remove the form of discrimination currently experienced by same-sex couples and their children. As is the situation for some other members of the House who have spoken in relation to this issue, this discrimination is not simply theoretical from my experience. It is real in the experience of others to whom I am close and I wish to see it ended. The Human Rights and Equal Opportunity Commission last year, following a substantial inquiry, tabled a report in parliament titled Same-sex: same entitlements. The report found that same-sex couples experienced discrimination in a wide range of Commonwealth laws, including superannuation, taxation and social security laws. But more specifically the report identified a number of areas where there was legal and financial discrimination faced by same-sex couples and their children.
I want to run briefly through some of the findings. Others have referred to them, but I will touch upon them, as I think it is important that the House acknowledges the situation that people face. The report found, among other things, that: same-sex couples and their families are denied basic financial and work related entitlements which opposite-sex couples and their families take for granted; same-sex couples are not guaranteed the right to take carers leave to look after a sick partner; same-sex couples have to spend more money on medical expenses than opposite-sex couples to enjoy the Medicare and PBS safety nets; same-sex couples are denied a wide range of tax concessions available to opposite-sex couples; the same-sex partner of a federal government employee is denied access to certain superannuation and workers compensation death benefits available to an opposite-sex partner; and older same-sex couples will generally pay more than opposite-sex couples when entering aged-care facilities.
The report also concluded that it was not just the couples who were facing discrimination, as we have heard, but also their children. It is estimated that approximately 20 per cent of lesbian couples and five per cent of gay couples are raising children. Inevitably the financial disadvantages faced by their parents will impact upon those children. Article 3(1) of the Convention on the Rights of the Child, to which Australia again is a signatory, states clearly:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
I am far from an international lawyer, I have to concede, but it seems rather evident to me that causing a family financial disadvantage solely on the basis of the parents’ sexuality would not fulfil the test of the Convention on the Rights of the Child, to which Australia is a signatory. It is important, therefore, that we remember the impact upon the children of same-sex couples when we are considering the bill before us. In summary, the Same-sex: same entitlements report found that approximately 20,000 Australian couples and their children were experiencing discrimination and a lack of equality for no other reason than their parents’ sexuality. That is a disgraceful situation that must be remedied, and the bill before us today marks the first stage of the government’s commitment to address the inequality for same-sex couples that exists under a wide range of laws.
The bill, in this instance, deals with the issue of superannuation benefits. These are extremely important for any individual. They provide security for them and their families during retirement and are often an individual’s largest asset after their house. When a person dies there is a reasonable expectation that their benefits will be passed on to their families. However, this is not always the case for same-sex couples. In chapter 13 of its report, HREOC found in relation to the current superannuation benefits, and it is worth quoting at modest length:
The same-sex partner of a member of a private superannuation fund may receive superannuation death benefits if he or she can establish an ‘interdependency relationship’ with, or financial dependence on, the deceased member of the fund. However, the ‘interdependency’ and financial dependence categories impose more onerous qualifying criteria than for an opposite-sex de facto couple in the same position.
The same-sex partner of a federal government public servant will not get any direct access to superannuation death benefits, unless his or her partner joined the public service after 1 July 2005. This is because a same-sex partner does not qualify as a ‘spouse’ under the relevant legislation.
HREOC went on to observe the following:
Further, a same-sex partner may not get the same tax benefits for superannuation contributions and earnings as an opposite-sex partner (in either private or federal government funds). Some tax concessions flow onto ‘dependants’ who inherit superannuation death benefits and this may include a same-sex partner in some circumstances. However, other tax concessions are only available to a ‘spouse’. The definition of ‘spouse’ under the relevant tax legislation and federal government superannuation schemes excludes a same-sex partner.
Finally, the child of a same-sex couple may not be entitled to the same superannuation benefits and tax concessions as a child of an opposite-sex couple. This is because of the definition of ‘child’ in the relevant legislation.
These failures and these discriminatory definitions must be remedied, and the bill before us today will remedy these situations and go to the heart of how we define a partner or a child. The effect of the bill will be to ensure that the relevant definitions apply equally to both same-sex and opposite-sex couples. To achieve this, the bill will expand on the definition of a de facto couple, creating the new concept of a couple relationship which will include same-sex couples. The Attorney-General also indicated in his speech introducing the bill that his department will apply lessons learnt from the legislative drafting of these provisions and definitions for a future reform program in this area.
I am pleased to say that the bill also allows for the equal recognition of children who are, as we heard a moment ago, the product of same-sex and opposite-sex relationships. For the purposes of the bill a child will be defined as the product of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child. A further benefit of such a definition will be a solution to the problems arising from some surrogacy arrangements, where at times the child of an opposite-sex relationship may fall outside of the current definitions. The changes in these definitions will finally eliminate the discrimination felt by these Australians for so long. A lot of effort has gone into the wording and analysis of the wording in the construction of the bill, in my understanding, and I think some of the concerns that have been expressed by some of the members opposite do not properly reflect the fact that the wording is quite appropriate.
The bill will also amend the Superannuation Industry (Supervision) Act 1993, which established the superannuation regulatory framework for regulated super funds. This will allow all super funds to make allowance for same-sex couples and their children in the same way that they will now be provided for under the Commonwealth schemes. I join the Attorney-General in encouraging all superannuation funds to make this provision.
It should also be noted, particularly in view of the amendment that has been proposed by those opposite, that there are very real and important reasons for this bill to be passed by the parliament as soon as is possible. I do not think these were necessarily addressed by the brief submission made by the member for Wentworth. As soon as this bill is passed the benefits and entitlements that would be enacted will become available. It is to be hoped that the opposition will act with credit in this regard to facilitate the rapid passage of the legislation. I have not heard an argument, at least in the debate, that would satisfy me that it is appropriate to adopt the method of analysis and potential delay that is suggested in the opposition’s proposed amendment.
Until the bill becomes legislation we will have the situation where people in the Public Service of our nation are denied the benefits they deserve for no better reason than old-fashioned and outdated discrimination. The bill is about providing for benefits and entitlements for all Australian families on an equal basis. It is about providing human rights in a modern Australia by removing discrimination grounded solely on an individual’s sexuality. I would like to congratulate the Attorney-General and all those involved in bringing forward this bill. I would also like to congratulate HREOC for the excellent report they produced and which has obviously had a significant influence on the construction of the legislation. I would also like to congratulate all the activists in the community who for many years have been fighting these forms of discrimination. I hope that they take some encouragement that this government—the Rudd Labor government—has got the courage and commitment to address this form of unfair, unjustified and abhorrent discrimination.
Consistent with other speakers and I believe the vast majority of our community, I support the intentions of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and will support the bill as amended by the opposition leader. The intention to deal with areas of discrimination in tax treatment and payment of superannuation benefits for members of same-sex couples and the children of these individuals is a good intention. It is an intention that I believe should also be extended to include non-sexual interdependent relationships. However, the government is taking the broad consensus that I believe exists in our society and risking division if it is not clear in the specific provisions and statutory language of this legislation.
The role of marriage between a man and woman in our society is central. Whether members opposite accept it, like it or not our society has been structured around marriage for thousands of years. There are proven reasons for supporting marriage as one of the foundations of our social fabric and cohesion. I want to put on record my support for the unanimous agreement between the current Prime Minister and the former Prime Minister prior to the November 2007 election that marriage is between a man and a woman and that we ought not to move down the path of gay marriage. This is an election commitment that I believe is important for the Labor Party to uphold.
I have some concerns with the language of the bill. The attempt to replace the term ‘marital relationship’ with ‘couple relationship’ and the removal of terms such as ‘husband’ and ‘wife’ clearly concerns a lot of members of this place. There are those who do seek radical change to the way our society is structured. It could be argued that a change to marriage could be one of the most radical changes in the way our society has functioned for some time. Some members have come in here, spoken on this bill today and I think driven people further away from the intention of this bill. In particular, I would note the contribution of the member for Brisbane, who referred to anybody with a different view on this matter as ‘extreme’. It is not extreme to be a Christian, it is not extreme to support the central role of the family in our society and it is not extreme to support marriage as between a man and a woman—lest we hark back to the Keating era and ‘the politics of intolerance masquerading as the politics of tolerance’, as Paul Sheehan aptly defined it.
No bill should attempt to make radical change in statutory language or in its provisions that will have undesirable effects that can be prevented. I am concerned that the term ‘marital relationship’ is to be replaced with the non-specific term ‘couple relationship’. I am further concerned about the definitions of children and that this does not disadvantage children in de facto relationships. The Parliamentary Secretary for Defence Procurement just made a contribution on international law relating to the children in same-sex couples relationships. He may also want to consider the international law that would prevent discrimination against children in de facto relationships and other forms of relationships as well.
I also concerned that in enacting this legislation we do not create the very discrimination and inequity members are attempting to prevent against other interdependent relationships. I am concerned that the intention of the government is not to include non-sexual interdependency. Like so many other members of this place, I am aware of so many real and no less deserving interdependent relationships that exist in our community: mothers who live with their sons for a long time or two friends that have lived together for 40 or 50 years. These relationships are real. They have nothing to do with sexuality but there are no less valid reasons why they should not be discriminated against in our society and in law. In fact, I would remind members of this House that the Prime Minister and others went out of their way prior to the election in November 2007 to state that the government would not be seeking any change to the status of marriage or other arrangements.
Government members have come into this place to express concern about the opposition’s amendment to send this to a Senate committee—what I regard as due diligence and care in examining this legislation. We ought to realise and recognise that this does not need to be made political, and I would say to government members who have come in here and attempted to portray this as a result of the Howard government that that is a very unfair characterisation. Indeed, those members who have come in here and said that the discrimination has occurred because of the Howard government, or that somehow the Howard government did not act, disregard that there were Labor governments prior to the Howard government. The Keating government did not implement this legislation, the Hawke government did not implement this legislation and the very radical Whitlam government did not implement this legislation. I do not think there is any value in politicising this topic or this bill today.
Society takes time to change. The opposition have the right to carefully examine legislation on behalf of the 48.5 per cent of the two-party preferred vote that put the opposition here. We have been presented with 22 bills this week to examine with very little or no notice and we have not had the right to ask for further scrutiny of this legislation. There is no other attempt to delay or hinder this legislation, as I said at the beginning of my speech today. I support the intention of this bill; so do many members on this side. I will repeat it for members of this House: we support the intentions of this legislation. We are asking the government to please allow some scrutiny to ensure that there is not a radical change that follows on from the removal of terms such as ‘marital relationship’ or ‘husband’ and ‘wife’ in this legislation.
The member for Port Adelaide said that there was a time pressure in relation to same-sex couples and that inquiries and committees would cause a major issue. The shadow Treasurer came in here just now and recorded for the House’s benefit that this legislation can be backdated. The government can, if it seeks to, set a time where this discrimination can be removed and that can be done retrospectively. The member for Port Adelaide also put remarks on the record that I thought were very unpleasant about the fact that people in homosexual relationships may die before 1 July—which is why we should not delay this bill. But he then said that the issue of people in interdependent relationships could be referred to the inquiry that the government has set up to consider those interdependent relationships. It is an odd position for the government to take: that it cares about one set of relationships where people may die before 1 July but not about another set of relationships—nonsexual interdependent relationships—where people may also die before 1 July. If it is good enough for these matters with respect to one set of people to be referred to a committee to be examined further, it is a strange and unconvincing argument that we have to rush for another set of people who may die before 1 July—taking into account the very serious nature of those matters that the member raised.
I say again: there is no need to take broad agreement on the intention of this bill and turn it into division. The House has the right to seek clarification about the statutory language of this bill from the government, its implications for marriage and the definitions of children. We do not want to see this legislation used to weaken the institution of marriage or as a precursor to gay adoption or gay marriage. I support the opposition leader’s call for the Senate Standing Committee on Legal and Constitutional Affairs to inquire into this bill—not to delay it, not to hinder it, but to ensure that it is achieving its intentions and only its intentions. As a Christian and as a Liberal, I support the equal and non-discriminatory treatment of people in law. However, I appeal to the members opposite—to those on the government benches—to drop the politics out of this issue, to take the agreement and consensus that exists for the intention of this legislation and to end this injustice but to not seek to make radical change without seeking the approval of the people of the Australian electorate. This legislation and its potential impacts require further scrutiny, and it is right and proper for the House to ask the Senate to do so.
I rise this evening to support the amendment moved by the Leader of the Opposition to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. I do so for two reasons: firstly, to support the extension of superannuation to all interdependent relationships and, secondly, to make clear that this bill should not further undermine marriage as conventionally understood in Australia. This bill is about superannuation entitlements. Superannuation in my view is a new form of property. If one looks at the savings of most ordinary Australians, the wealth creation of most ordinary Australians, then for a great many people that major form of savings or wealth creation these days occurs through their superannuation account. If superannuation can today be properly and appropriately characterised as property, then a person ought to have the right to dispose or divest themselves of that property as they can with any other piece of property—be it money they have saved and can buy something with or gift to another person, or real estate, which they can sell or equally gift to another person.
If the government wishes to extend to relationships other than marriage equality of treatment for superannuation purposes, there is no reason as a matter of logic to limit this to relationships based on a same-sex relationship. Why, for example, should two single sisters who have lived together for many years and who provide for each other with financial and domestic support not receive equal treatment with two lesbians in identical circumstances? Or what about a brother and sister? That was the case for some of my relatives, one of whom died recently. In one case the sister’s husband died tragically in the Second World War and her brother has lived with her for the 60-odd years since in an interdependent relationship. Why should they be treated any differently in relation to their property—namely, superannuation—from others? I note that the Attorney-General is at the table. It would be interesting to hear why this bill does not canvass all interdependent relationships, because this was the approach taken by the Howard government in its 2004 amendments to the Superannuation Industry (Supervision) Act. There was a provision relating to the private sector. The key provision in the act was section 10A(1), which says:
- … 2 persons … have an interdependency relationship if:
- they have a close personal relationship; and
- they live together; and
- one or each of them provides the other with financial support; and
- one or each of them provides the other with domestic support and personal care.
If this was a provision which had the unanimous support, as far as I can recall, of the parliament to define an interdependent relationship which would include people in all relationships, whether or not they are on the basis of sexual preference, why should this provision not apply equally to this bill and, as I understand it, to a suite or package of other bills that relate to those in the public sector in Australia? I believe it should apply to people in interdependent relationships. This bill therefore ought to be extended along the lines suggested in the amendment moved by the Leader of the Opposition.
I said secondly that I supported the Leader of the Opposition’s amendments to make clear that the bill should not further undermine marriage as conventionally understood in Australia. In talking of undermining marriage, I quote from Jonathon Sachs in his recent informative book, The home we build together, where he says, ‘The fact that we have deconstructed the family morally, psychologically, economically, politically, is the single most fateful cultural development of our times.’ I certainly believe that that is right.
Other members have spoken about changes of language—‘marital relationships’ to ‘couple relationships’. Does this mean that a marital relationship from a cultural, indeed from a legal, perspective in Australia is seen now as just one other permanent type of relationship that has no special value beyond that? I put this in the context that in 2004 this parliament passed a bill to define marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. There is nothing radical in this proposition. It reflected the common-law approach stated by Lord Penzance in the 1866 case of Hyde v Hyde and Woodmansee, namely, that marriage is the voluntary union of one man and one woman, to the exclusion of all others. It was supported by this parliament including the then opposition Labor Party.
That parliamentary action followed decisions and comments by judges in a number of court cases that the traditional understanding could be changed. The Federal Court took this further when it ruled that the common-law test could include psychological and social considerations. In other words, if you consider yourself a man or a woman, that will do! No wonder the overwhelming majority of parliamentarians decided that they and not some unelected judges should determine the boundaries of marriage in Australia. But some want to reverse this long-held view of the majority of Australians. For example, under a proposal by the Greens put to the Senate, I think on the first day of this parliament, marriage means the union of two persons, regardless of their sexuality or gender identity, voluntarily entered into for life.
Missing from their discussion is any consideration of the purpose of marriage. Social science research shows that the optimal way to raise children is in a well-functioning family comprising both a father and a mother. For the Greens, this is all about discrimination. But maintaining that individuals should be able to direct their will, their pension or their superannuation to whomever they wish is different from upholding the very structure upon which society is founded. The Greens and their supporters reject this notion. Hence the latest push to prohibit words such as ‘mother’ and ‘father’ in schools.
Society has an interest in functioning families and healthy children. It has an interest in what Mary Anne Glendon called ‘the seedbeds of virtue’—those structures which enable children to be formed in the virtues. Society has an interest in promoting the institution of marriage because it seeks to unite men and women and to promote child rearing in a setting which provides male and female models. As the demographer Kingsley Davis writes:
The genius of marriage is that, through it, the society normally holds biological parents responsible for each other and for their offspring. By identifying children with their parents and by penalising people who do not have stable relationships, the social system powerfully motivates individuals to settle into a sexual union and take care of ensuing offspring.
David Blankenhorn, the author of Fatherless America, puts the economic consequences succinctly. He said:
No amount of public investment in children can offset the private disinvestment—
arising from dysfunctional families. The Greens are not alone in this retreat from marriage. In New South Wales, the government has legislation before state parliament which would remove the longstanding presumption that a child has one father and one mother, which is the case for the overwhelming majority of children. The reason advanced is to provide day-to-day parenting rights to the non-biological mother of a child conceived to a lesbian couple through artificial reproductive technology. Yet this objective can already be achieved by a Family Court parenting order.
As I understand it, this bill treats all de facto partners of people with children as automatically having a step-parent relationship with their partner’s children, something which only marriage creates today. Accordingly, for the reasons I have set out, I believe it is appropriate for the opposition to refer this matter to a committee. I therefore commend the amendment to the House.
Recently, I was invited to address the Young Liberals (Australia) conference. I think the blokes who invited me were consequently sacked. The president there said I should be Prime Minister of Australia. I naturally agreed with him and felt he was a very wise and perspicacious person. He struck me as a bloke who was not a fool—although this seemed to be the indication of a fool. He said: ‘In Australia we don’t have conservatives who espouse conservative values. We have a lot of people who call themselves conservatives, who run around trying to explain that they are not really conservatives at all.’ That is what I have watched tonight—people on this side of the House who claim to be conservatives. I said, ‘Be specific.’ He said, ‘Ronald Reagan and Margaret Thatcher.’ I do not think I would agree with any of Margaret Thatcher’s policies—none at all—but there is no doubt that what he was saying was correct. These people were enormously successful politicians.
I served under a bloke called Bjelke-Petersen. We were described as troglodytes and rednecks and everything else. We moved legislation to make abortion illegal in Queensland—there was vagueness in the law. The verdict of the people was 72 per cent against what we were trying to do, but there was no doubt that the then Premier believed it was the right thing to do. It was not a matter of whether or not we got votes out of it—that was the right thing to do and he was doing it. In the subsequent election, at the expense of the Liberal and Labor parties, our vote went up about eight per cent.
Whilst they disagreed with what we were doing, it was clear that we were acting out of moral beliefs. That is the thing that people will respect and follow. They will not respect you people on this side of the House getting up one after the other and making all sorts of arguments why this is not quite right but you vote for it anyway. Let me state unequivocally that the bill is a bill of approbation for homosexual relationships. Either you believe that that is a good thing for society or you do not.
Many of you know my background. I spent many, many years in the bush with people of Aboriginal descent, and they have what they call ‘Quinkan’ beliefs. This is devil-devil country. Devil-devil country at the back of Cooktown was Black Mountain, which was alive with taipan snakes. The Quinkan lore, if you like, for Mount Fox—there were no trees on it—said that devil-devils come out and stick spears in you. That almost certainly indicates—for people with geology backgrounds such as I have—sulphur emissions which are alive volcanically. In fact, it was a live volcanic area about 10,000 years ago. The Quinkan for the Ingham area is ‘water from mountain to mountain’. If we have a double flood, the entire coastal plain will go 25 feet under water and probably result in thousands of lost lives. The point I am making here is their belief system—Madam Deputy Speaker, you shake your head and laugh—
You will have it in one sentence, Madam Deputy Speaker, and that sentence is the survival of the race, the survival of the tribe. People have belief systems because they are important for the survival of the race and the survival of the tribe. If homosexuality is a fashion statement, it is a very dangerous fashion statement and it is at the present moment in Australia.
I refer to Bob Birrell’s article in the Australian newspaper some years ago where he said that in 100 years the population of Australia would be seven million. I thought the man must be mad. I went down to the demography boss at the Parliamentary Library here and I said, ‘This could not possibly be right.’ He said: ‘Well, you can work it out for yourself. If every time 20 people die in Australia they are replaced by 17 people, then over five or six generations you will end up with that figure. So I sat down and worked out the mathematics and I was quite horrified at what I found. There may be people in Australia, but they will not be the race of people that are here today. We have chosen a values system that says that we do not have children, and other races have chosen a value system that says that they do.
Patrick J Buchanan, in his book Death of the West said that Europe in 15 years time will need 23 million people just to keep their essential services going, and those people can only be supplied from the Muslim countries because they are the only countries that have a positive birthrate. I might be a little intemperate in my remarks about protecting the state of Israel, which I am a very strong supporter of, and critical of some of the people that would take away their right to exist, but one has to say, though, that they have a belief system that will ensure that they will be around while we have a belief system that guarantees we will not be around—unless we change that belief system.
People come in here with the hypocrisy of crying about this. I saw that in the abortion debate. The people who thought it was quite all right to kill an unborn child are the same people who go and cry about a stranded whale. Their value systems are skewed. I am not going to be intimidated by moral fashion to adopt policies which I do not think are correct for our children or our future. What you are doing here is talking about a bill of approbation for this sort of behaviour.
When I spoke on this in this place the last time the issue of AIDS was a very real issue in Australia. There was not a single person in this place that related it to homosexuality. Anyone could go down and get the figures. There were about 75 AIDS cases in Australia. I have not checked the figures, but you can go back to my speech at the time—the figures then were dead accurate. There were about 75 AIDS cases in Australia. Of those, all of them were people that had indulged in homosexual behaviour or were intravenous drug users, with the exception of six people—and there is a third category I will refer to in a moment—who claimed they were not in either of those categories. But the bloke taking the figures pointed out that four of them were living with an ‘at-risk’ partner—which is code for homosexual. So, in actual fact, there was no AIDS phenomenon in Australia outside homosexuality and intravenous drug use. These are not my figures; these are medical figures.
The third category is a very, very sad category of people. Homosexuals said, ‘We are being discriminated against.’ That is what is being said tonight—‘We are being discriminated against.’ They said, ‘We’ve got a right to give blood transfusions the same as everybody else.’ The New South Wales government—moral relativists—decided, ‘Oh yes, that’s terrible, we are discriminating against them.’ So they allowed them to give blood, and some 60 or 70 people—mostly little children—contracted AIDS as a result of that decision. This is all a matter of public record.
When I look back to the days of very great upheaval in the world, there are two people that leap out to me—Martin Luther and St Thomas More. The fashion of their day should have led them both to certain death. By some miracle, Luther escaped but Thomas More did not. But they were both men that did not hesitate to place themselves in danger of death for their beliefs—what they profoundly believed to be the true and right thing to do. So, though it is not very fashionable and though it will bring great opprobrium upon anyone speaking in the manner in which I am speaking, I think that it is everyone’s duty to reflect upon the fact that the sort of viewpoint that I have must win in the end because the other viewpoint leads to the nonsurvival of the race.
I go back to a lot of my old blackfella mates. They had survival laws there that were very valuable and very important for their survival and the preservation of their tribe and their race. But let the last words lie with the great Jim Killen. Writing a letter to the Australian, he said: ‘If the definition of marriage is a love relationship, I for many years of my life was a ringer up in the Gulf Country, and I loved my horse.’
Debate interrupted; adjournment proposed and negatived.
With all due respect to the member for Kennedy, can I clarify that those of us who are standing in support of the intention of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 with a proposal for an amendment and referral to a Senate committee actually have the capacity to stand for principle but at the same time stand for what is just, right and fair for those this bill applies to. This debate is about fairness. It is about the balance of what is just and what is right.
I say at the outset that the dignity and value of every individual is critical to this House and also to the people we represent. Respect for all Australians and their capacity and their right to choose how they live their lives, while respecting the rights of others, is paramount. Laws and legislators have the responsibility to place value on all humanity.
The introduction of legislation that focuses on fairness in financial and work related entitlements and benefits for all Australians is to be commended. Adults in dependent relationships including but not limited to same-sex relationships—and people within those relationships who wish to ensure that dependants, including children, are rightly entitled to be treated fairly in Commonwealth law—are to be supported. Aspects of fairness that are presented in this bill to eliminate discrimination against same-sex couples and the children of same-sex relationships from the several acts affected by this bill—I will not list them all tonight—are worthy of support.
However, there are a couple of things that I am concerned about. In my view, the revision of the existing definitions of ‘spouse’ and ‘child’ and creation of new definitions not only errs on the side of devaluing marriage but also puts at risk the rights of children. The bill provides for the removal from various bills of the phrase ‘marital relationship’, to be replaced with the term ‘couple relationship’, and for the removal of ‘husband’ or ‘wife’, to be replaced with the term ‘partner’. With all due respect to the House, I fought for marriages for many years when I worked as a social worker, and marriage is indeed one of the bedrocks of our society and ought to be supported and strengthened in all legislation.
Item 17 of the bill refers to the child as being a ‘product’. With all due respect again to the House and to members opposite, referring to children as products is somewhat impersonal and again devalues the significance of children. As has already been noted by members on this side, children are valuable human beings. The potential for unintended negative consequences is yet to be thoroughly explored. It is important that children dependent on adults who care for them ought to be entitled to the Commonwealth benefits referred to in this bill, but the detail needs to be further explored.
In my view, the preference for children to be raised by a father and a mother—a male and a female—ought to be strengthened and supported. While I have respect for those who, through circumstances and/or choice, live in various and different family relationships and circumstances, it is my view that it is important to strengthen and add value to marriage and to children being raised in a home where both parents are present. I urge the government to adopt the coalition’s amendments, which will enable the removal of barriers to fairness, which is the intention of the bill, and will place equal value on marriage and protect the rights of children. It is the language of this bill that needs to be reviewed and changed.
Prior to the election, the Australian Labor Party noted its lack of support for legislation to recognise same-sex marriage or civil unions. The Labor Party also agrees with the Australian Christian Lobby that:
… same-sex couples should be able to share their finances and property with each other and in addition supports the removal of discrimination in areas such as taxation, superannuation and social security benefits.
The Labor Party stated that it:
… does not support legislation to recognise same-sex marriage or civil unions or to make changes to the definition of marriage.
I think that changing the definition of what a couple is in this legislation would question its commitment to that.
Earlier this week I received a letter from the Anglican Diocese of Sydney, and I will refer briefly to their comments:
We commend the government for addressing some of the inconsistencies in current legislation as well as some of the legal and administrative impediments that are imposed on same-sex couples, which in effect deny them access to various financial and work related benefits that others in the community enjoy. However, there are two aspects in this area of law reform that particularly concern us.
Our first concern is that many of the benefits which we understand are to be extended to same-sex couples may be equally applicable to other types of caring, interdependent relationships—for example, elderly siblings or disabled family members. We can see no reason in principle why other categories of caring, interdependent relationships should not also enjoy those benefits which are not dependent upon the relationship being a sexual relationship. Our second concern relates to the apparent removal in relevant principal legislation of any reference to marriage as a separate and distinct category of relationship. We understand the terminology proposed to be used in amending legislation will cover married couples. However we are concerned that, for the sake of drafting expediency, the special place that society has traditionally accorded to marriage will be hidden by these reforms.
While I support the principle and intent of this bill, I strongly commend the amendment to the House.
I would like to thank the honourable members for their contributions to the debate. I would like to echo the simple words of the member for Sturt: it is overdue. As I informed the House last week, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 introduces the first part of historic reforms to amend the Commonwealth laws that discriminate on the basis of sexuality. I am proud that within six months of coming to government we have managed to audit all Commonwealth laws to identify discrimination against same-sex couples and to introduce this legislation. The public servants involved have, quite frankly, done an outstanding job. The reforms in this bill will make a practical difference to the lives of a group of fellow Australians who for far too long have suffered discrimination in superannuation at a Commonwealth level.
However, members of the opposition may not be aware that the drafting of legislation to remove discrimination on same-sex relationships has not been easy—and that is an understatement. It required care to ensure that existing entitlements are not detrimentally affected while seeking to remove discrimination. I will say a little more about that in terms of the concept of close personal relationships that has been raised throughout the debate.
These particular amendments that relate to these particular superannuation laws are time critical because of the benefits that will flow to people who are grieving from the loss of a loved one. For that reason, we have split the legislation into two parts to enable these amendments to pass now while the rest of the legislation is drafted. I fully expect and think it is appropriate for the second tranche of the legislation to be scrutinised by a Senate or House of Representatives committee. Amendments to discriminatory terms in Commonwealth laws will set a new legal standard for fairness and consistency and will provide functional recognition of same-sex couples and, importantly, their children. Discrimination on the basis of sexuality has largely been removed from state and territory laws, and this bill will take equality for same-sex couples and their children to the next level by introducing long-overdue reform to remove discrimination from Commonwealth laws.
In terms of the issues raised in the debate, I would like to address up front the concern of the Leader of the Opposition that replacing the term ‘marital relationship’ with the new definition ‘couple relationship’ could be construed as undermining the institution of marriage. Removing sexuality discrimination does not undermine marriage. The question of recognition of same-sex marriage is a separate issue entirely from that of providing equal recognition for same-sex couples. The government’s policy on marriage reflects the widely held view in the community that marriage is between a man and a woman. This in turn reflects the traditional view of marriage that has been built over many centuries. Removing discrimination is about making sure that same-sex couples are recognised for all practical purposes and have the same entitlements as opposite-sex de facto couples. There will be winners and losers, but the government has made it known that this is precisely what the reforms will achieve. I think, in fairness to those who are potentially losers, they recognise this is part of the principle of removing discrimination.
I wish to make it abundantly clear that the use of the term ‘couple relationship’ does not undermine existing marriage laws. As I said in my second reading speech specifically—and I will refer honourable members to it again—the government’s position in relation to the existing definition of marriage is unambiguous. We believe that marriage is between a man and a woman. However, the government has also made clear its commitment to implementing its policy of conferring the same entitlements on same-sex de facto couples that are conferred on opposite-sex de facto couples. The bill seeks to treat opposite-sex and same-sex couples equally for the purposes of payment of reversionary benefits. It is important to know that we are talking about reversionary benefits as part of these measures. As such, it is desirable to use consistent terminology for recognising persons in certain relationships.
This has been a difficult and technical piece of legislation to draft. It is not the case, as suggested by some of those opposite, that the terms of this legislation are clinical and austere. As the Leader of the Opposition also noted, and we agree with him, it is important that new discrimination not be introduced by these amendments. Currently both opposite-sex de facto couples and married couples are entitled to death benefits if they are considered to be in a marital relationship. These are death benefits in the context of a reversionary benefits scheme—in other words, a monthly, fortnightly, weekly or other payment. However, it would be contrary to the government policy on marriage to include same-sex de facto couples within the definition of ‘marital relationship’. That is precisely because we believe that marriage is between a man and a woman. The alternative is to separate marital from de facto couple relationships. However, I am advised that this could create statutory interpretation problems by giving ‘marital relationship’ a narrower meaning, potentially enabling it to be treated unequally to de facto relationships. There would be the risk that a court would take the view that a ‘couple relationship’ was a different test to a ‘marital relationship’. This might in fact take the form of a superannuation benefit being given or denied to a person in a marital relationship when compared to a person in a de facto relationship. This might have created marital status discrimination contrary to Australia’s international obligations and contrary to the intention, I am sure, of members of both sides of the House.
As a result, the bill ensures equality by replacing the term ‘marital relationship’ with the term ‘couple relationship’. This is similar to the approach recommended by the Human Rights and Equal Opportunity Commission. The bill also replaces the phrase ‘husband or wife’ with the term ‘partner’. The definition of partner is non-discriminatory and applies to persons, whether the persons are in a same-sex or opposite-sex relationship. This will place all persons who have an opposite-sex or same-sex relationship with a scheme member on an equal footing. Let me state again: removing discrimination in no way diminishes the status of a marriage in the assessment of superannuation benefits.
The bill aims to allow same-sex partners and their children to receive superannuation benefits on the same basis as opposite-sex de facto partners and their children. Recognition is necessary if we as a community are to remove discrimination against same-sex families and their children. The definition of ‘child’ in the acts has been expanded to extend superannuation death benefits to include children of same-sex relationships. The new definition expands the classes of children who may be taken to be a child of the member for the purposes of determining eligibility for orphaned children benefits. It has been suggested by a member opposite that all that is required under these amendments is a simple biological connection between a child and a member of a superannuation scheme. I want to make clear that this is not possible. The overriding requirement in the definition of a child under the legislation is that they be a child who is the product of the relationship. Not only must a child have a biological connection to one of the partners of the relationship or be born to one of the partners; they must also be the product of the relationship.
In addition, under the legislation it is also an existing and separate requirement that a child be an ‘eligible child’ in order to be entitled to a reversionary payment. For this to occur, a child would need to be dependent on the member and meet the other requirements of being an eligible child. That requirement will not be changed by these amendments. I reject entirely the suggestion that this bill opens the door to gay adoption, gay IVF or gay surrogacy. Adoption, IVF and surrogacy are matters primarily for the states and territories.
The bill does not create relationships that do not already exist. The issue from the government’s perspective is not about encouraging gay parenting but about ending discrimination. The reforms in this bill recognise real family situations. Recognition is necessary if we as a community are to remove discrimination against same-sex families and their children.
Members opposite have suggested that the proposed definition of ‘couple relationship’ should include interdependent couples. The concept of ‘partner’ takes its ordinary meaning and cannot extend recognition to interdependent couples, such as the example frequently given of two elderly sisters living together. This is made clear in the explanatory memorandum. I note that the opposition want to broaden the bill’s scope to include interdependent relationships. This option was explicitly rejected by the Human Rights and Equal Opportunity Commission. It is also an option which appears to have been previously rejected by the opposition when they were in government. I note, in fact, that the opposition, with respect to many members who I respect on a personal level, have not thought through the implications of their current position on interdependent couples.
Bearing in mind that we are talking about the first tranche of a package of laws that will remove discrimination from Commonwealth laws, I would like to provide some examples. Let me take the example of two elderly sisters who live together and look after each other, which was raised by the opposition in debate, as I have noted. Suppose each sister currently receives the age pension at the single rate of $546.80 per fortnight. If, as the opposition proposes, they were recognised as a couple under Commonwealth laws, each would receive the couple rate of $456.80 per fortnight—that is, their payments would go down. In other words, they would be $180 worse off per fortnight. Currently, each would also receive a utilities allowance of $500 per year. In other words, they are treated as individuals. If, as the opposition proposes, they were recognised as a couple, they would only receive one utilities allowance between them, losing a further $500. And there are likely to be other negative financial implications, such as telephone allowances and rent assistance. As the member for Menzies appeared to appreciate in his contribution—and I respect the member for Menzies—we are talking about amendments including, to use his phrase, a package or suite of other laws where these measures will necessarily occur.
The opposition’s renewed interest in the role of the Senate in scrutinising legislation is welcome, but I fully expect that when the second tranche of legislation is introduced it will occur. However, this legislation is time critical. The only reason to refer this legislation to a Senate committee would be to achieve a prolongation and extend the discrimination that currently exists against same-sex couples, discrimination which the opposition leader and many opposite are determined—and we appreciate their genuineness—to remove.
Our challenge is to sincerely ask ourselves: ‘How would I feel if that were me? How would I feel if I had a son, a daughter, a brother or a sister in these arrangements?’ It is not desirable to be overly emotive about these matters, but it is appropriate to ask: what is the situation of a person who is potentially the beneficiary of a reversionary benefit in circumstances where the superannuant dies before this legislation is passed?
I note that there is a suggestion for backdating. But the problem is that when you are talking about reversionary benefits you are usually talking about a fortnightly or monthly contribution; that is, a contribution that is in lieu of income and sustains the person. If there is a gap—particularly a substantial gap—there are complications as to how that individual is to sustain themselves and their family until the legislation is passed. There are complications. I appreciate the numbers in the Senate, but I would implore those opposite to prevail upon their senators to conduct their inquiry as expeditiously as possible.
The Rudd Labor government recognises the important and tireless contribution of carers to the community. However, the issue of whether to recognise interdependent relationships such as a caring relationship is complex, as I have indicated by the examples I gave. Indeed, it is no secret, although it was not the intention of the government in removing discrimination, that there will at the end of the day be a saving to budget as a result of removing discrimination. This is because many persons who are currently entitled to greater benefits as individuals will end up having their benefits determined on a collective basis; in other words, effectively as couples. In that sense, the proof of the pie is in the eating. In the specific example that I have given in respect of the aged couple, that will necessarily be the case.
In other words, careful consideration should be given to these complex issues to do with recognising interdependent relationships, particularly caring relationships, in Commonwealth legislation. Indeed, how to best recognise caring relationships is being considered by an inquiry by the House of Representatives Standing Committee on Family, Community, Housing and Youth. However, this is a separate issue to removing discrimination against same-sex couples and should not hold up the implementation of these important reforms.
As the introduction of the bill highlights, the government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexuality. The government is committed to removing discrimination against same-sex couples and their children. This bill will implement the first part of this commitment by removing same-sex discrimination from Commonwealth superannuation laws. Put simply, the same-sex partner or a child of a same-sex relationship today does not have an equal right to receive important superannuation benefits, literally to sustain them. Those rights will be provided by the passage of this bill. This approach imports a new standard of fairness and consistency into the law in this area and ensures that same-sex families are treated with fairness and equity.
Some opposition members want to have it both ways, with respect. They want to have same-sex relationships not equated to a married relationship but also want to support the removal of discrimination against same-sex couples. With respect to those opposite—and I appreciate their good intent—they cannot have it both ways. Removing discrimination simply means that same-sex relationships are treated equally to de facto opposite-sex couples. The reforms in this bill will recognise real family situations, and this is the only way to remove discrimination against same-sex families and their children. I commend the bill to the House.
The original question was that this bill be now read a second time. To this the Leader of the Opposition has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.
Original question agreed to.
Bill read a second time.
Message from the Governor-General recommending appropriation announced.