Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

Whoops! It is 10 to 10, they tell me from behind, so we should not have that debate now. I will turn to Senator Murray’s amendments. Senator Murray, I actually prefer my amendments. I am not going to support yours. The Democrat amendments are designed to accomplish largely the same task as ours, although they differ in detail. Specifically, the definition they use of ‘de facto relationship’ is similar to that of the Human Rights and Equal Opportunity Commission but it is worded in a slightly different manner. A recommended subsection (3) has been included with subsection (2). In addition, the Democrat amendment does not include the optional Human Rights and Equal Opportunity Commission clause, which gives recognition to relationships registered under a state scheme, whereas our amendments make this inclusion. We understand that Tasmania already has a state relationship register. As such, Labor’s view is that our amendments, although defeated, will offer greater certainty to couples who have a de facto relationship registered under that scheme.

There are two more areas of distinction between our amendments and the Democrat amendments. The Democrat amendments include a new definition of ‘child of a de facto relationship’, which parallels the definition of ‘child of a marital relationship’ that already exists. I am not convinced that this is necessary. If you look through the Judges’ Pensions Act, you will see that the only time the term ‘child of a marital relationship’ is used is in the definitions. It does not appear to be anywhere else in the act, and the term ‘child of a de facto relationship’ will not be either. I offered that up to the government but it failed to amend the legislation accordingly. Maybe you could look at it some other time.

The definition of ‘child’ in section 4 of the Judges’ Pensions Act already includes adopted children and biological children under the age of 16. If a child is validly adopted under the law of an Australian state, it is fair to assume they will fall under this act. In addition, the act sets up a scheme for determining whether or not a child can receive pensions, under sections 4AA and 9 to 12. Section 4AA provides that a child is eligible to receive part of a pension if the child is a child of the deceased judge and if:

(b) the Attorney-General is of the opinion that:

                   (i)    at the time of the death of the deceased Judge, the child was wholly or substantially dependent on the deceased Judge; or

                  (ii)    but for the death of the deceased Judge, the child would have been wholly or substantially dependent on the deceased Judge.

Sections 9 through to 12 set up when an eligible child may receive a pension. Labor’s amendments would have removed the definition of ‘child of a marital relationship’ entirely. As such, although I support the general concerns raised by you, Senator Murray, and they are echoed by Labor, we will not be supporting your amendments because they would seem to have the combined effect of removing one of the redundant definitions and replacing it with another, unfortunately—although I do not mean to be harsh in saying that. I seek clarification from the government as to why this definition may be in the act. They can have a another go at trying to tell us. I tried in vain to get an explanation from Minister Johnston. Maybe they can have another go now.

Finally, the Democrats have restructured the legislation to replace every instance of the term ‘marital relationship’ with the term ‘beneficiary relationship’. On balance, I prefer to stay with the draft that Labor have put forward. We spent a bit of time on that, and we think that it matches HREOC and it matches Labor’s position in respect of state relationship registers. It offers greater certainty to those same-sex, de facto couples who have registered their relationship under a state scheme, such as in Tasmania. With those words, Labor will not be supporting the Democrat amendments.