Andrew Murray (WA, Australian Democrats) Share this | Hansard source

I stand to speak on the Judges’ Pensions Amendment Bill 2007 and the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. Despite the fact that the Attorney-General’s portfolio is held for our party by Senator Stott Despoja, these bills principally cover the area of superannuation and I have been coordinating the particular approach that we have been taking to these bills. The bills of themselves are, of course, welcome. The Australian Democrats support both bills, which are before us cognately. We do wish—and it is another reason I am here—to use this opportunity to draw attention to a gross inequity that exists within present law with respect to same-sex couples and death benefits that attach to them.

The Judges’ Pensions Amendment Bill 2007 amends the superannuation surcharge related provisions of the Judges’ Pensions Act 1968 and adds a definition of ‘salary’ to the act. The act makes provisions in relation to the entitlement to pensions of persons who hold office as judges of the High Court of Australia, the Federal Court of Australia and the Family Court of Australia and certain other office holders who are deemed to be judges for the purposes of the aforementioned act. Currently, when a judge retires or dies in office with a superannuation surcharge debt, the pension payable to the former judge or to the dependant or dependants of the former judge, as the case may be, is reduced under a formula in section 6B of the act. The formula reduces such a pension by averaging the rates of surcharge applied to the judge in each full financial year of his or her service. The bill remedies technical deficiencies in the formula in order to apply the correct rates of surcharge in 2003-04 and 2004-05, to amend the treatment of invalidity and death benefits and to recognise payments made to discharge in part a judge’s surcharge debt.

No direct issue applies to the substance of the bill, but rather the bill provides an opportunity to move amendments to what is a gross inequity and injustice to the justices, if I might put it that way. The media has reported that Justice Kirby has been in correspondence with the Attorney-General to request his and the government’s support for amending the discriminatory aspects of the Judges’ Pensions Act 1968. Justice Kirby’s key concern is the fact that his same-sex partner of 38 years will receive no pension entitlements in the event of Justice Kirby predeceasing him. This is in comparison to the partners of other judges, who qualify under the marital relationship provisions for a reversionary pension pegged at 62.5 per cent of the pension that would otherwise have been payable to the judge in question. In response to media questioning, the Attorney-General stated:

In connection with interdependent relationships, including same-sex relationships, the Government will consider making further changes to the relevant legislation on a case-by-case basis. We will do this in consultation with the relevant stakeholders, taking into account the relevant legal, policy and fiscal impacts.

That is all very proper. Of course, it is language to allow for delay and obfuscation. The Human Rights and Equal Opportunity Commission’s report Same-sex, same entitlements: national inquiry into discrimination in same-sex relationships: financial and work related entitlements and benefits came out in May 2007 and has been in the hands of the government since then. This is the 12th act we have sought to amend since that report came out to meet HREOC’s criticisms. I heard a minister say in an earlier debate that they have not had much time since May 2007. Have you seen the range of bills we have had since May 2007, especially budget bills? It is an absolutely ridiculous argument. As the shadow Attorney-General said, there is no clearer cut case than this particular one, which is also one that is not very costly.

The report itself applies to issues of financial and work related discrimination on the grounds of gender preference. I mentioned the public discussion about Justice Kirby’s circumstances. Of course, he is not the only judge or magistrate in this country who has a different gender preference to that which might be described as heterosexual. He will not be the last person of that preference. These are aspects that should be beyond discussion. They should simply be cleared up and superannuation benefits be available to people in the normal way described. Of the 58 acts that the report lists at the end, there are two which relate to the judiciary. One is the Judges’ Pensions Act 1968—I am referring to page 397 of the report—and the other is the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984. On page 384 of the report, in the summary of findings and recommendations at chapter 18, HREOC has very helpfully listed the factors that need to be borne in mind. I have made sure that my amendment—and I will relate it back to that when I come to it in the committee stage—closely matches the way in which HREOC has suggested these matters be resolved.

I wish to remind the Senate chamber of the discrimination under superannuation laws—we are dealing here with superannuation and death benefits—just so that it can get into your heads how abominably stupid maintaining this farce of homophobic laws is for a government which carries the word ‘liberal’ in its name. It is outrageous and I concur with remarks of the shadow Attorney-General. It is my view that many, and probably most, liberals in the Liberal Party in this parliament and many cabinet ministers are of the view that this discrimination should end. There is cross-party agreement on this, and yet here we are having to try and twist the government’s arm to do what is right, proper and moral instead of continuing with the kind of laws that the Taliban would enjoy and support. At pages 380 and 381 of the HREOC report is this list of discrimination under superannuation laws:

The Inquiry finds that federal superannuation laws discriminate against same-sex couples or families in the following ways:

• A federal government employee’s surviving same-sex partner cannot access direct death benefits (lump sum or reversionary pension) available to a surviving opposite-sex partner (unless the employee joined the public service after 1 July 2005).
• The surviving child of a lesbian co-mother or gay co-father who was a federal government employee will not usually qualify for direct death benefits (lump sum or reversionary pension) available to the child of a birth mother or birth father.
• It is harder for a surviving same-sex partner to qualify for death benefits in private superannuation schemes (as a person in an ‘interdependency relationship’) than for a surviving opposite-sex partner (as a ‘spouse’).
• A surviving same-sex partner cannot usually qualify for a reversionary pension in a private superannuation scheme, which is available to an opposite-sex partner.
• It is harder for a surviving same-sex partner to access death benefits from a retirement savings account (as a person in an ‘interdependency relationship’) than for a surviving opposite-sex partner.
• It is harder for a surviving same-sex partner to access death benefits tax concessions than for a surviving opposite-sex partner.
• A same-sex partner cannot access the death benefits anti-detriment payment available to an opposite-sex partner.
• A same-sex partner cannot engage in superannuation contributions splitting and the associated tax advantages available to an opposite-sex partner.
• A same-sex partner cannot access the superannuation spouse tax offset available to an opposite-sex partner.
• A surviving same-sex partner of a federal judge cannot access the reversionary pension available to a surviving opposite-sex partner.
• A surviving same-sex partner of a Governor-General cannot access the allowance available to a surviving opposite-sex partner.

Chapter 13 on Superannuation provides more detail about these and other superannuation entitlements.

It is not as if this issue is new. I recall many years ago moving an amendment to the act that covers the Governor-General to address this matter, and the reaction was that of astonishment. I have moved numerous amendments on this issue over the decade that I have had responsibility in this area and they have all been rejected. I have been joined, in a very vigorous and helpful way, by the shadow minister on superannuation matters, Senator Sherry, in an estimates committee quizzing of a very sympathetic minister. Let me put on the record my appreciation for the responses that Senator Minchin has given in this area, but he has been defending the indefensible and he has been defending it because he has not, and others of his persuasion have not, prevailed in the cabinet.

This criticism of mine is not a criticism of the Liberal Party; it is a criticism of the Liberal Party’s leadership—an absolute failure. The idea that to address this now would be sensitive in an election environment is just appalling, because you could have addressed it in the month after the last election or the month after the election before that. I think it is a failure of moral will; it is a collapse in liberalism. The days when liberals with a conscience crossed this floor, as they often did, seem to have gone by the board and the conservatives have the party by the throat. Like all these things, the dam will burst and the people of good heart in the Liberal Party will prevail.

It is our job from the crossbenches and the opposition in this case to push the point and to make people feel uncomfortable about an issue which they know is right and proper to pursue. With one hand I want to give you a jolt to encourage you to face up to the issue, but on the other hand I want to give you great encouragement. I know many liberals listening to this debate and who participate in these chambers badly want to see these issues resolved in the interest of a fair go—old-fashioned, Australian, fair-go treatment. Now that we have the HREOC report, we really have a very thorough and comprehensive appraisal of this issue.

With those words—and you will be happy to know that I am not going to repeat them all when I move my amendment; I will simply move the amendment—I want to put the case to you one more time this week. For the 12th time this week, we are asking for these laws to be addressed.