House debates

Wednesday, 24 September 2008

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

Second Reading

Debate resumed from 23 September, on motion by Mr McClelland:

That this bill be now read a second time.

upon which Ms Ley moved by way of amendment:

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;
nevertheless recognises that partners in same-sex relationships ought not to be discriminated against on the basis of their sexuality, and ought to be treated on a similar basis to partners in heterosexual de facto relationships;
recognises the right of  children who live in same-sex households not to be discriminated against; and
notes that the Opposition has referred the bill to the Senate Legal and Constitutional Affairs Committee for reporting by September 30 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;
there is no unintended recognition of same sex marriage, including through amendments to the Migration Act 1961;
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”.

10:16 am

Photo of Mark ButlerMark Butler (Port Adelaide, Australian Labor Party) Share this | | Hansard source

At the conclusion of last night’s proceedings I was saying that the focus in Australia has shifted in recent years to the treatment and the status of same-sex relationships. Much of the heat in this debate which we have heard from the other side, here and in the other place, comes in a reflected way from the rhetoric and the political fights fought in the United States over this issue, particularly over the heated question of whether or not any dealings with the question of same-sex relationships interfere with traditional notions of marriage. As we know, 26 states in the United States of America have now banned so-called ‘gay marriage’ and there is a ballot initiative, set for 4 November, in California, where the Supreme Court recently upheld the constitutional right to equal treatment in this area.

What members on the other side of the House who invoke that American heat within this debate fail to recognise, or at the very least admit, is that the circumstances of the debate in the United States of America are fundamentally different from those in Australia. That is because 39, I think, of the 50 states in America, including almost all of the big states, do not have a system of de facto or common-law marriage. That is a very important detail in this debate, because what the government is trying to do in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008and tried to do in the first bill, which is stuck in a pointless Senate inquiry initiated by the opposition in the other place—is to equate the rights of members of same-sex relationships with the rights enjoyed by members of de facto heterosexual relationships in Australia. Our capacity to do that in Australia does not exist in the vast bulk of states in the United States of America—hence the heat in the debate in that place.

While various states in Australia have tried a range of different approaches to this question—in some states involving registration and in others involving different criteria for recognition—discrimination against same-sex couples by virtue of the status and the treatment of their relationships endures in Australia. That that discrimination happens at the hand of the nation’s government is, I would say, unforgivable.

Consistent with our pre-election commitments, this side of the House is finally acting. You cannot say the same of the previous government. There was a glimmer of hope in about May 2004 when the then Prime Minister, the member for Bennelong, indicated in a press conference that he thought that same-sex relationships should have equal rights in relation to reversionary benefits under superannuation. The glimmer of hope disappeared very quickly because, one week later, the then opposition, the Labor Party, moved a motion in the House that would turn that glimmer of hope into action and every single member of the then government voted against it—just as they had done when the member for Grayndler, now the Leader of the House, introduced a number of private members’ bills over the previous decade to give same-sex couples equal rights to those enjoyed by de facto heterosexual couples. On those occasions, every single member of the now opposition, the then government, voted against the granting of those rights.

As so often happens in these areas, an inquiry by the Human Rights and Equal Opportunity Commission cast a very strong light on this issue. That commission engaged in a wide-ranging public consultation before handing down their 2007 report entitled Same-sex: same entitlements. There were some 680 public submissions received and the report runs to about 500 pages—fortunately, with a very useful executive summary at the beginning. That report details a range of examples of discrimination experienced every single day by 20,000 Australian couples and their children, often at the hands of the nation’s government.

The commission, in their report, identified 58 pieces of Commonwealth legislation that involved that discrimination. I would like to quote a couple of examples. In the area of Commonwealth workers compensation, the report says:

… the same-sex partner of a worker covered by Comcare and other federal workers’ compensation schemes is not entitled to lump sum workers’ compensation death benefits. Nor is a same-sex partner taken into account when calculating the federal workers’ compensation sums available to an incapacitated employee.

In the area of tax benefits, discrimination occurs. In some of those areas of discrimination there is financial benefit and in others there is financial detriment. The report says:

Same-sex couples will often pay more tax than opposite-sex couples because they are not eligible for a range of rebates and tax concessions. Further, the same-sex parents of children may miss out on tax benefits intended to help families.

For example, same-sex couples are not entitled to the following tax concessions:

  • dependent spouse tax offset
  • tax offset for partner’s parent
  • housekeeper tax offset
  • child-housekeeper tax offset
  • zone tax offset for a partner
  • capital gains tax concessions when transferring property to a partner
  • fringe benefits tax exemptions for a partner.

The social security benefits area is the area in which this thing swings both ways. Social security laws treat same-sex couples differently again to opposite-sex couples. For example, a same-sex partner is not entitled to the following benefits: partner allowance, bereavement benefits, widow allowance, concession card benefits and jailed partner’s pension. The report indicates:

Other times the differential treatment benefits a same-sex couple. This is because the law treats the couple as two single people, so a same-sex partner can access benefits normally available to singles.

And the report importantly says:

Several same-sex couples told the Inquiry that they would willingly trade the advantages in social security law for equal treatment under all federal laws.

That has been the feedback that I have received as well. Although some same-sex couples do receive preferential treatment in social security, they would willingly trade that for the removal of other discriminations and the status afforded by the removal of other discriminations under federal laws.

Finally, by way of example, I will mention aged care—an area often not thought about so much in relation to same-sex relationships. In relation to aged care, the report says:

When people enter an aged care facility they generally have to pay certainly daily fees and bonds to fund their care and residence. The amount of those fees is calculated by applying assets and income tests.

A same-sex couple is treated differently to an opposite-sex couple under these tests. In particular, the home of a same-sex couple is not exempted from the assets test as it is for an opposite-sex couple.

As a result, a person in a same-sex couple will generally pay more for residential aged care than a person in an opposite-sex couple.

It was an election commitment by the Labor Party that we would implement in full the recommendations of that HREOC report. We started the fulfilment of that election commitment with the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008which, as I said earlier, is stuck in a pointless Senate inquiry initiated by the opposition.

HREOC identified 58 further pieces of Commonwealth legislation, some of which I have just instanced, that discriminate against same-sex couples. An audit conducted by the Attorney-General, after being elected to govern in November, has identified a number more. Those 58 pieces plus the others identified in the audit are the subject of this bill. Areas covered within this bill include taxation, social security, health, aged care, veterans entitlements, workers compensation, immigration and many, many more. I will not go into the detail of all of those areas covered in the bill. I note that I have had the benefit of listening to the member for Ballarat’s contribution to this, and I do not think I would do the bill justice after her contribution.

I would just say in conclusion that this bill is long overdue. This is long unfinished business that has remained like a stain on the soul of Australia. We are supposed to be a country that fights against discrimination. I am very proud to be a member of the government that has decided to take up this cudgel and do it. This package involves the most significant attack on discrimination against same-sex persons and same-sex couples since the decriminalisation of homosexuality, which started in my state in the 1970s and spread throughout the nation thereafter. I strongly commend the bill to the House.

10:26 am

Photo of Michael DanbyMichael Danby (Melbourne Ports, Australian Labor Party) Share this | | Hansard source

Once again, I am pleased to rise in support of a bill brought in to meet, as the member for Port Adelaide said, the Rudd government’s commitment to abolish in Commonwealth law discrimination against gay men, lesbians, same-sex couples and their children. First we had the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which was introduced in May and which, as the excellent new member for Port Adelaide pointed out, is stuck in a useless Senate committee—for what purpose we do not know. I am sure the Greens and Senator Xenophon will not let it lie there forever. I am sure their constituents will be very critical of them if they do and if the Senate is involved in another power grab in trying to assert its importance by reviewing all of these laws. This law, as the member for Port Adelaide points out, is long overdue business that this House should have dealt with years ago.

Last month we had the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, which I spoke on in this House, and now we have the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. And they said it could not be done. Many people were cynical that this promise would be kept. I must say that I never doubted it, because I know the Prime Minister and, above all, the attitude of the Labor Party and we made this commitment in the election campaign. Once again, on behalf of the many people of Melbourne Ports whose lives will be improved by these bills, I want to thank the Prime Minister, the Attorney-General and the Minister for Infrastructure, Transport, Regional Development and Local Government for bringing these bills forward in such a timely manner.

This bill amends 68 pieces of Commonwealth legislation, spanning 19 different government departments. It seeks to remove from all of these pieces of legislation language which discriminates against same-sex couples and their children. The acts amended by this bill include such diverse and unlike acts as the Australian Meat and Live-stock Industry Act, the Bankruptcy Act, the Proceeds of Crime Act, the Defence Force (Home Loans Assistance) Act, the Seafarers Rehabilitation and Compensation Act, the Civil Aviation (Carriers’ Liability) Act, the Foreign Acquisitions and Takeovers Act and even the Members of Parliament (Life Gold Pass) Act. So, whether you are a farmer, a bankrupt, a criminal, a member of the ADF, a seafarer, a pilot, a businessperson or even a former member or senator, you will know that, whatever other fate might befall you, you will now not be discriminated against because you have chosen to enter into a same-sex relationship, nor will your partner or your children or the children of your partner for whom you have responsibility.

Some of these changes might seem trivial, and it might be the case that the language in some of the more obscure pieces of legislation affected by this bill has never actually been used to discriminate against any person or couple, but together these amendments send a powerful message to the Australian community that this parliament will no longer accept or tolerate discrimination against our fellow citizens on the grounds of the choices they make in their personal lives no matter in what area or under what pretext.

But this bill is much more than symbolic in its importance. One of its most important practical benefits will be to prevent discrimination against children of same-sex couples. The member for Cowan pooh-poohed this bill because he said it affected so few people. But obviously if a small number of people are discriminated against, it is as bad as if a large number of people are discriminated against. The principle is the same: children should not be penalised because of life choices made by their parents or guardians. This bill will ensure that legislative provisions which extend rights and duties to children and relatives will also extend to children of same-sex relationships.

As I said in my remarks on the Family Law Amendment Bill, I am pleased that the opposition has decided to support this package of bills. I have seen the comments made by the new Leader of the Opposition on this point. I commend him for his firmness in his opposition to homophobia, which I hope continues with the opposition supporting this bill. As I said last month, the reason we have had to wait all these years to see legislation of this kind is that, unfortunately, the former Prime Minister chose to play populist politics and pander to homophobia rather than accept the position now taken by the new Leader of the Opposition. It is also true that in Victoria the Liberals made promises they did not keep, and it took a Labor government to bring in legislation of this kind.

I know how important this bill is to members of the community in my electorate. I have received many passionate emails from people expressing their gratitude to the new Labor government for fulfilling an important promise that has been delayed for more than a decade. It is with great pleasure that I commend this bill to the House.

10:31 am

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Question put:

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

Original question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.