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

I rise to speak on the Judges’ Pensions Amendment Bill 2007 and the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. Labor supports the contents of these bills. They largely contain technical amendments to the formula by which the superannuation of former federal judges is payable. Currently, upon the death or retirement of a federal judge a formula operates to reduce a judge’s pension by averaging the rate of surcharge that applies to the judge in each full financial year of his or her service. The Judges’ Pensions Amendment Bill makes four technical amendments to the current scheme. Firstly, it amends the reduction for the years 2003-04 and 2004-05 which, according to the explanatory memorandum, brings the formula into line with the maximum surcharge for those years. Secondly, the bill amends the formula regarding invalidity pensions to take into account the abolition of the surcharge from 1 July 2005. Thirdly, the bill allows that the spouse of a judge, who dies in office, to choose between having the judge’s pension reduced under the formula or a commutation scheme. Fourthly, the bill allows the trustee of the Judges Pension Scheme to draw on an existing special appropriation for the payment of the judges’ surcharge debts to the ATO as they retire.

The Federal Magistrates Amendment (Disability and Death Benefits) Bill sets out to enact a pension scheme for magistrates who are no longer capable, for medical reasons, of doing their job. This will allow magistrates who have served on the bench to retire because of ill health and receive a payment. In effect, it will help to make their position more consistent with other federal judges. Given the difficulty in removing judges on the grounds of poor health, this is a sensible option. It removes the incentive for magistrates to continue on in their position after ill health may make it untenable. In so doing, it will help maintain the exceptionally high standard that currently exists in the Australian federal judiciary.

At the moment, federal magistrates operate under a scheme which is separate from the pension scheme that exists for other judicial officers which comes under the Judges’ Pension Act 1968. The federal magistrates receive a superannuation fund or retirement savings account to which the Commonwealth contributes. This means that if a federal magistrate retires before the age of 65 then they are not eligible to receive a pension. This creates an incentive to continue to work even if illness or disability prevents them from effectively performing their job. The proposed legislation will alter that and allow the magistrate who retires for those reasons to have access to a continued source of income via the judicial pension scheme. Specifically, it will allow a magistrate who retires to, post retirement, request the Attorney-General to certify that the retirement is due to permanent disability or infirmity. This is modelled on the process that occurs for other judges under the Judges’ Pensions Act. A refusal to certify would be appealable to the Administrative Appeals Tribunal. Where the request is granted the magistrate in question would be eligible to receive a pension at 60 per cent of the federal magistrate’s salary until they reach the age of 65. They would continue to be eligible to receive a superannuation contribution from the Commonwealth until that age as well.

Turning to the more troublesome end, if there is a death benefit scheme the bill updates the provisions for magistrates’ death benefits, bringing them closer into line with those of other judges. It will allow lump sums for death benefits to be paid to eligible spouses and eligible children if a magistrate dies before the age of 65. The benefits would be equal to the superannuation contribution that the judge would have received had they lived to that age. Magistrates who retire on the disability pension scheme inserted by this bill would also be eligible for death benefits.

For the remainder of my contribution this evening, I will refer primarily to the Judges’ Pensions Amendment Bill. The comments I have are equally applicable, of course, to both this bill and the federal magistrates bill, but of course the Judges’ Pensions Amendment Bill will serve as a single example. The act, as it currently stands, excludes same-sex de facto couples from its operation. Heterosexual de facto couples are, for the purposes of this act, taken to be bona fide married couples if they (a) have lived together for three years or more as man and wife or (b), in the case of less than three years, the Attorney-General, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis, regardless of whether or not the person was legally married to that other person.

Same-sex de facto partners of judges are currently completely excluded from this scheme. What does that mean? For a married or de facto heterosexual couple, the current sections 7 and 8 of the Judges’ Pension Act provide that, on the death of the judge or retired judge, the surviving partner is entitled to a payment of 62.5 per cent of the relevant pension in relation to the judge. It is a reasonably standard clause, which exists to ensure that the partner of a judge who has served the judiciary and Australia is not left high and dry upon their death. Unfortunately, as I have already mentioned, it was not drafted to envisage—and it certainly does not encompass—circumstances where judges engage in same-sex de facto relationships. This is not a situation which Labor think is acceptable and, as such, I foreshadow in this speech that we will be moving amendments in the committee stage to ensure that these injustices do not continue.

The amendment is clearly within the objects of the bill before us. The bill’s long title is ‘A Bill for an Act to amend the law in relation to Judges’ pensions, and for related purposes’; therefore, being clearly within the stated objectives, Labor brooks no criticism for moving the amendment per se. It is imperative that the parliament take these measures and start moving these types of amendments, basically because of the government’s intransigence on the issue of discrimination against same-sex couples.

There is no logical reason or rationale for continuing to refuse access to these pensions for same-sex de facto couples. There is a purpose to this focus: heterosexual couples may marry and become spousal partners falling under the definition of this act. It is enough to be said that it is not the place or role of parliament to place legislative prods in this direction, but, following the exclusive definition of marriage in the common law and in the Marriage Act 1968, same-sex couples are left with no option at all.

The transferability of these pensions to a partner of the deceased judge is a recognition of their contribution to judicial life and the immense workloads that these judges undertake during their tenure. The payment is also to ensure that the partners of these judicial officers are not left high and dry in the event of their death. There is no provision in place barring homosexual judges from accessing the judicial pension scheme, and there is no suggestion that a judge who is in a same-sex relationship is any less worthy of receiving a pension as one who is in a heterosexual relationship. The only thing that is barred is transferring the pension to the other partner in the same-sex relationship on the same grounds that are provided for in a heterosexual relationship.

I point out that the issue of whether or not homosexuality should be legal is well and truly settled, and rightly so. It is over a decade since the Keating government passed the Human Rights (Sexual Conduct) Act 1994, which overrode Tasmanian laws outlawing homosexuality. I am not reopening the debate; it is settled. Logically, then, there is no reason why the payment of a pension to a judicial partner after a judge’s death should not be extended to include same-sex de facto partners; yet the legislation as it stands does not allow for this to occur and, to be perfectly frank about this, it is about time for the government to begin the process and the steady march to move with Australian society to extend benefits to persons in de facto same-sex relationships.

The government is well behind on these matters. For more than a decade there has been inaction and no real outcomes with regard to the removal of discrimination against Australians in same-sex relationships at the federal level. The precise dimensions of this discrimination have recently been laid out in the report of the Human Rights and Equal Opportunities Commission Same-sex: same entitlements. That report found a total of 58 pieces of federal legislation which discriminated against same-sex couples, and that was only in the area of financial and work related entitlements.

At this point I would like to add the caveat that in some cases the discrimination may actually be beneficial. Some benefits are reduced where a person is living in a marriage-like situation with a person of the opposite sex, and same-sex de facto relationships do not count for those purposes. So, in those limited cases, the same-sex de facto couple might actually gain a financial advantage out of the discrimination, but, for the most part, same-sex de facto couples are denied the benefits which are provided to married couples.

To remove the discrimination which operates in relation to this act, I will, as I have said, foreshadow an amendment. My colleague in the House of Representatives Nicola Roxon earlier moved a second reading amendment calling on the government to remove discrimination against same-sex couples in this piece of legislation. The government did not support that in the House of Representatives.

This is unfortunate because the government have made comments in the media that they will support the removal of discrimination against same-sex couples. I will take the opportunity of quoting some of their comments. Firstly, a media release from the Attorney-General on 21 June this year, in response to the HREOC report, 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.

I also note a statement by the Prime Minister, John Howard, at a doorstop interview on 8 June last year:

I am in favour of removing areas of discrimination and we have and I’m quite happy on a case, by case basis to look at other areas where people believe there’s genuine discrimination …

The case we have before us today is about as clear-cut as it gets. There is a clear benefit that is being denied same-sex couples in a de facto relationship. In respect of this, it is also narrowly cast. The point is in the principle that this bill is one which goes to pensions. As the government would be well aware, in some instances we have not supported these types of amendments in the Senate. This is because they look like tagging or because the costs may be quite large and difficult to ascertain. The costs are an issue not in themselves or alone but when put together with the principle I enunciated earlier, which is that we do not generally accept tagging—that is, finding an amendment to a bill and then using a subsidiary or unrelated amendment such as this. I think the government accepts that we generally stick to that principle, and, of course, it is a reasonable principle to stick to. In this instance, we are on point, we can move the amendment and it is, as I have said, narrowly cast.

We have an example of where this should be remedied—in this instance, High Court Justice Michael Kirby. I invite the government to consider the legislation further and more deeply because of this example. The government determined to act only on a case-by-case basis. Here is one. As Justice Kirby himself has stated in a letter to the Attorney-General, if he were to die today the legislation as it currently stands would deny his partner a judicial pension. Justice Kirby will retire from his judicial career by early 2009. If he were to die before—I stress that we hope and pray that that does not occur—or after his retirement, the person he is in a caring relationship with and with whom he has forged a life for nearly four decades would not receive anything. This is a clear and unambiguous example of how these laws impact on law-abiding Australian citizens. There is no justification. I note again that the Attorney-General has stated that he will look to remove discrimination on a case-by-case basis, and I offer this as a perfect example of a case in which the Attorney-General, or his representative in the Senate, can act.

Given this government’s self-publicised reputation for truth and honesty with the Australian public, I would certainly expect that the government would honour this commitment given by Mr Ruddock and support our foreshadowed amendment. I note that there are many amongst the conservatives who agree with Labor on this position, even if the right wing dominates within their party. I might add that the lunar right, which appears to be slowly taking over their state branches, does not.

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

Did you say ‘lunar’ or ‘lunatic’?

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

’Lunar’. It is a baying at the moon sort of thing.

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

Not ‘lunatic’?

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

No. I reserve that for a few others. I say to the members of the government in the Senate who support these types of amendments: do not worry; Labor will be giving you the opportunity to vote and to allow your practical record on the matter of the removal of discrimination against same-sex couples to be put on the public record through this simple example.

Finally, I would like to deal with government criticism that was raised in the Main Committee on another bill, the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. As I understand the comments made by the Attorney-General at that time, the government wants to address all of this discrimination at once, in one package, and it was not appropriate to tackle these issues of discrimination in the manner we are doing it today. In response to this criticism, I point out that the government has had 11 years to remove discriminatory provisions in federal legislation. During that time, state Labor governments have moved forward on the issue—abolishing discriminatory provisions in areas such as superannuation and recognising same-sex de facto relationships, to give two examples.

And let us not forget the case-by-case pledge. Where did that get to? The Attorney-General and the Prime Minister could be described as flip-flopping around on their previous long and deeply held commitment to reform on a case-by-case basis. One minute, when it is convenient, it is case by case; the next it is ‘wait for the package’. It is really concerning that the Liberals cannot be trusted on this issue. Even if you thought you could rely on a Liberal promise in this area, do not forget that there is always the National Party.

Federally, Labor have pledged that, if elected, we will remove discrimination against same-sex couples across all federal legislation, with the exception of the Marriage Act. By way of contrast, this government have been in power for 11 years, the HREOC inquiry has been going on for the last 18 months and the report has been publicly available since June. There surely cannot be too many sitting weeks left—if you believe the Treasurer, at least his first iteration, this is probably the last—before parliament is dissolved and the general election is called. So far, all we have heard from the government is that they will look at legislation ‘on a case-by-case basis’. We have not seen a formal response to the HREOC report. We have no indication of whether the government is planning to act on it and, on the off-chance that they will, when they are going to do so.

The case that Labor are making here is quite simple. We are in favour of these bills. They have our support. It is a minor technical amendment that fixes some inconsistencies in the scheme and brings it into line with the maximum surcharge. Labor are not objecting to the bills per se in the amendments that have been put forward. There is an issue here that does give an opportunity to this government to make some practical changes to benefit an individual’s life. I commend these bills to the Senate.

Andrew Murray (WA, Australian Democrats) Share this | Link to 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.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I seek leave to incorporate my remarks.

Leave granted.

The speech read as follows—

Justice Kirby is without doubt a great Australian.

In 2002, in front of a crowd of 35,000 at the Sydney Gay Games, Kirby declared:

“The movement for equality is unstoppable. Its message will eventually reach the four corners of the world.”

Well, one might now be forgiven for assuming that Justice Kirby’s position is the dissenting opinion.

Since that time, the Howard government has been allowed to continue its relentless attacks on full equality for the gay and lesbian community.

Now, Justice Kirby has asked the Government, in representing the Australian citizens who he has served in our highest judicial appointment for over 10 years, to extend to him and his family a most basic right.

A right which, were his partner of over 38 years a female, they would be granted automatically.

The Greens will move an amendment that will, as it relates to his pension, grant Justice Kirby’s family the respect and recognition it deserves. This is an opportunity to take a step towards full equality for all Australians. An opportunity for which there is no excuse to avoid. The Greens are providing this opportunity.

The gay and lesbian community has experienced long years of exclusion, and under the Howard government this has been further entrenched.

The Greens amendment is based on the principle of inclusion.

Other opposition parties have recognised that Justice Kirby’s family should not be denied equality because his life-long partner is male.

But The Greens recognise that to provide for full equality, there must be a genuine spirit of inclusion within the legislation that comes from Parliament.

Families must not be denied full equality on the basis of the private sexual nature of the relationship.

Families must not be denied full equality on the basis of who performs household duties.

Families must not be denied full equality on the basis of the lack of a statutory declaration declaring they are a family.

Families must not be denied full equality based on the ownership and acquisition of property.

Families must not be denied full equality based on their reputation and public aspects of their relationship.

Amendments put forward by the opposition and the democrats, include provisions such as these.

I’d like to ask Senators a question. Do you suspect Justice Kirby of attempting to defraud the Australian people? And beyond that do you suspect that those worthy of our highest judicial appointment will ever attempt to defraud the Australian people? If no, then on what basis are these exclusions justified?

I’d like to extend to Justice Kirby and his family—his life long partner—on behalf of the Australian Greens a thank you for all the great work he continues to do on the High Court.

Justice Kirby asked in 2002 that we “Be sure that, in the end, inclusion will replace exclusion”. The Australian Greens continue to answer that call.

Natasha Stott Despoja (SA, Australian Democrats) Share this | Link to this | Hansard source

My remarks tonight deal specifically with the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. Obviously, Senator Murray has pointed out that the Democrats have dealt with this on both Attorney-General’s and superannuation lines. I think you will find the amendments in my name on behalf of the Democrats dealing with this particular legislation reflect exactly the sentiments that have been expressed by Senator Murray on the party’s behalf. I also indicate that we have amendments dealing with the reduction of the age threshold. I also seek leave to incorporate the rest of my remarks in an attempt to facilitate proceedings. I will move my amendments in due time.

Leave granted.

The incorporated speech read as follows—

As the Democrats’ Attorney-General Spokesperson, I rise to speak on the Federal Magistrates Amendment (Disability and Death Benefits) Bill.

The Democrats welcome improvements in the remuneration and entitlements of Federal Magistrates, such improvements being long overdue given the enormous contribution Federal Magistrates make to the federal justice system.

As the Australian Law Council note in their submission to the Senate Legal and Constitutional Affairs Committee who considered the provisions of this Bill in April 2006:

“In a few short years both the jurisdiction and workload of the Court have grown considerably. The volume of civil case filings is very high and the Law Council understands that around 60% of general federal law filings, and around 50% of family law filings, are made in the Court.

Surveys commissioned by the Court appear to establish that it is continuing to provide a very satisfactory service for most of its customers with savings over the comparable cost of litigating in the superior courts”.

So, the Democrats wish to acknowledge publicly their support of the work of the Federal Magistrates and the important restorative justice approaches they are taking in respect of disputes.

In relation to the Bill, new sections 9A, 9B and 9C provide for a Federal Magistrate to be certified as a retired disabled Federal Magistrate, receive an entitlement to a pension and entitlements to certain superannuation contributions. Section 9D provides for death benefits for Federal Magistrates and retired disabled Federal Magistrates.

While the Democrats support this proposal we are rather disappointed that the Howard Government has failed to ensure that such improvements are fair, equitable and appropriate to Federal Magistrates. Specifically, we are disappointed that this initiative is unfair in respect of its treatment of age limitations on entitlements and same sex relationships.

In relation to age limitations Section 6 of the Judges Pensions Act 1968 sets the age threshold for judges of every other federal court at 60 years. Yet, the age threshold for benefits and death benefits under this Bill has been set at 65.

In its submission to the Senate Legal and Constitutional Affairs Committee the Victorian Bar noted that his Bill continues to place Federal Magistrates on an unequal footing with judges of every other federal court, by not including Federal Magistrates under the Judges Pensions Act 1968.

The Democrats propose that the age threshold for benefits should be reduced to 60 which would place Federal Magistrates on equal footing with judges of every other federal Court whose pensions are determined by the Judges Pensions Act 1968. This is an opportunity to be fair to Federal Magistrate. We believe the reduction of the age threshold for benefits to 60 years would serve to ensure relativity of remuneration within the federal judicial system. Of course, the alternative is simply to include Federal Magistrates in the Judges Pensions Act but I’m sure the Howard Government will find some pithy excuse as to why this shouldn’t happen and we shouldn’t let this opportunity for fairness and equality within the federal justice system to be lost.

It should come as no surprise to my colleagues that the Democrats are also proposing a second amendment to the legislation in respect of the definition of a spouse. Unlike the major parties, we have for decades advocated and listened to the needs of the GLBTIQ community. We don’t intend to let them down in respect of this Bill.

Since our inception in 1977, the Australian Democrats have campaigned loudly for allowing same-sex relationships equal status to those in heterosexual relationships. If, Senator Bartlett and my Private Members’ Bill The Same-Sex marriages Bill 2006 were in effect there would be no need to propose this amendment. But that is not to be the case.

The Bill’s denial of benefits to Federal Magistrate’s same sex partner sends the wrong message to the Australian community that discrimination is acceptable in Australia. And quite frankly discrimination is not OK.

More worryingly, the exclusion of same-sex relationships from this Bill sends the wrong message to Federal Magistrates. It is the Federal Magistrates who must sit and judge cases under Commonwealth Anti-Discrimination legislation. What message is the Howard Government trying to send to them? That it’s OK to discriminate against the GLBTIQ community?

As Justice Kenneth Raphael, said in his submission to the Senate Committee:

“To impose such discrimination on a court which has the prime responsibility for dealing with cases under the Commonwealth Anti-Discrimination legislation is ironic.”

I don’t think its too much to ask the Prime Minister to modernise his way of thinking and put a stop once and all to his Government creating new laws that only seek to discriminate against the gay community. The number of old laws on the statute book that discriminate against the gay community is bad enough without the Government adding more.

And it seems many of the Government’s own MPs are growing impatient with the Howard Government’s failure to embrace a modern day definition of relationship that does not centre on spouse. Coalition MPs Malcolm Turnbull, Peter Lindsay and former crocodile farmer Warren Entsch are demanding action. Mr Entsch is reported in The Australian on 1 June 2007 as saying “he is furious and angry about the lack of action. They keep saying ‘oh we’re looking at it.’ But they’ve been looking at for too long. In my view, not enough has been done.”

This Bill provides the Howard Government with the opportunity to act today to bring about an end to discrimination against same sex relationships. The Howard Government has done it before. In relation to anti terrorism legislation the Government has included same-sex partners within the definition of ‘close family member’ under Anti-Terrorism Act (No.2) 2004. It’s time, in an election year, that they show decisive leadership on this issue once again. Are they for or against ending same sex discrimination? If they are for it they will support my proposed amendment.

For these reasons and a number of others, the Democrats will be moving amendments to rectify these deficiencies.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I thank senators for their contributions to the debate on the Judges’ Pensions Amendment Bill 2007 and the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. The government acknowledges the significant contribution judges and federal magistrates make to an efficient federal civil justice system and it is committed to ensuring that they have adequate and appropriate terms and conditions of service. The Judges’ Pensions Amendment Bill 2007 is intended to rectify technical deficiencies in the Judges’ Pensions Act 1968 relating to the application of the superannuation surcharge to federal judges appointed between 7 December 1997 and 30 June 2005.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Incorporate it.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

This may not be important to some members on the other side but I am sure it is important to the judges and the magistrates. The main object of the bill is to pass on the reductions in the top surcharge rate of 2003-04 and 2004-05 and to give judges an option to commute a portion of their pensions to pay for surcharge debts.

The Federal Magistrates (Disability and Death Benefits) Bill 2007 will provide federal magistrates and their dependants with improved financial protection in the event of serious disability or death. It is the government’s view that the public interest is served by ensuring that federal magistrates with disabilities which prevent them from performing their duties retire with adequate financial provision. Currently a federal magistrate whose performance is significantly impaired for medical reasons might nonetheless be unwilling to resign. This is particularly important where federal magistrates have tenure to age 70 and can be removed only on the grounds of proven misbehaviour or incapacity. If the performance of a federal magistrate is significantly impaired for medical reasons, it is desirable that a lack of adequate disability provision not be a barrier to the magistrate’s willingness to resign.

I want to briefly talk about the principal issue surrounding this bill, and that is the issue, of course, raised by Senator Murray and adverted to and raised in the speech by Senator Ludwig. The issue of same-sex entitlements is very emotive. Can I say that the emotion does to some greater or lesser extent cloud the otherwise strong adherence, particularly of Senator Murray, to matters of good government.

I want to say a few things about this from the perspective of what it will mean and the significance of a movement to the recognition of same-sex entitlements. The government is considering the issue of same-sex entitlements in relation to the Commonwealth defined benefits superannuation schemes generally. As stated by the Attorney-General recently in the context of the Federal Magistrates (Disability and Death Benefits) Bill, it is not appropriate to deal with judicial officers—and I would have thought the opposition would accept this—in isolation from other recipients of Commonwealth defined benefits such as returned servicemen, public servants and parliamentarians. In short, people, particularly the likely beneficiaries of broad amendments, will say: ‘What about us? It’s all very well to give the judges and magistrates same-sex entitlements; what about us?’ In terms of a case-by-case basis, this is something that we need to consider from the perspective of the Australian Defence Force, 55,000 service personnel plus about 20,000 or 30,000 civilian employees; diplomatic officers and officers generally; agencies; appointees; and, of course, parliamentarians.

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

You voted against that today too.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I know this is emotional for Senator Murray, but I would like him to hear me out because I want to point out why the government is at the point it is at now. It is frustrating, I know. Rome was not built in a day, and it would be lovely if we could just write cheque after cheque and satisfy every emotional requirement pursuant to people who seek to be a beneficiary under the superannuation schemes of the Commonwealth. But, firstly, in terms of each of the matters before the Commonwealth on a same-sex basis, there are vastly different budgetary considerations from department to department. There is an impact.

I note that Senator Murray rolls his eyes when I say that, but this is a government that now has the capacity to satisfy the needs of same-sex relationships because it has been considerate of budget considerations, because it has minded the budget. The point is: we do not just write cheques on each bill because we get a feel-good out of it. What we do is bring into this place good policy that has equity across the board. That is something I would have thought that Senator Murray would relate to. Why would judges’ partners be any better off than a sergeant’s same-sex partner? Why would that be the case, Senator Murray? It would be because you want to satisfy your emotional commitment on a case-by-case basis. The government is saying that we need to analyse each section of the community—I will go further so that you understand what the problems are here.

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

I raise a point of order, Mr Acting Deputy President. The minister is misleading the Senate, and I would appreciate it if he addressed that matter. Perhaps he does not realise that this very day we moved an amendment exactly of this kind to the Defence Force Retirement and Death Benefits Act scheme, so we did not leave out the sergeants, and he is misleading the Senate.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Unfortunately, Senator Murray, there is no point of order.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

There is no point of order; of course, there is not. Let us look at it from the perspective of the fact that we are talking about superannuation. There is no same-sex marriage in Australia. I hope Senator Murray would agree with that. We have a common-law relationship or we have a partnership formed in the civil law.

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

Senator Murray interjecting—

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senator Murray does not want to understand what I am talking about, because these are deep legal principles that you do not just go writing cheques for on an emotional whim. Now let us talk about this. These relationships actually produce children, and Senator Murray might be surprised to learn that they could be categorised as dependants. They could be the subject of the sort of amendments that he is talking about. This refers not just to Justice Kirby’s partner but also to children. You bring in a whole host of—

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

So what?

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

I love it that Senator George Campbell says: so what? I am talking about the rights of the child, Senator Campbell. There is a United Nations convention that you obviously do not even know about. You just disclose your absolute gross ignorance—from someone who has served so long in this place. Let us talk about the human rights and equity issues flowing from this. Here we have a group of senators who want to start writing cheques bill by bill and case by case. What I am talking about is having an overall, well-considered policy that deals with this inequity. To do it one at a time, case by case and write the sort of cheques that Senator Murray and obviously Senator Ludwig would have us write is to discriminate against those who are not the beneficiaries of this bill. So the learned senators on the crossbenches are saying that two wrongs will make a right. I want to introduce the ingredient of family law—property settlements—into this debate. Senator Murray has not even thought about that, because superannuation will be the subject of—

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

The states referenced you the power and you haven’t picked it up, quite frankly.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

That is right: the states have to reference the power, and you need to be married. Of course these are things that the Labor Party would make up as it goes along in an emotive, unconsidered, not thought through, half-baked, half-understood way. We have a whole host of legal principles that need to be considered if we are going to do the job properly. That is the fundamental issue. Of course these are things that, when you pander to sectional interests without actually considering good government, you end up making errors on. I should not have to stand here—and I am a bit embarrassed that I do—and mention these things to Senator Murray.

Superannuation is a fundamental ingredient of day-to-day life in Australia. The beneficiaries of that are the essence of what we need to explore on an agency-by-agency, employee-by-employee basis so that we get the actuarial mix correct so that we achieve an equitable assessment of how same-sex relationships are going to be resolved in a way that is transparent and fair across all agencies. All agencies are different, and that is the essence of a case-by-case consideration. Having said that, in conclusion, judges are entitled to receive the benefit of the lower maximum rates of surcharge, through this bill, which apply to other high-income earners in 2003-04 and 2004-05. Since other Commonwealth defined benefit schemes already offer their members a commutation opinion, this is simply to bring the judges’ scheme into line.

The Judges’ Pensions Amendment Bill will address judges’ concerns about the application of the surcharge. It will give the benefit of the lower maximum rates and the flexibility to make partial payments of their surcharge debts before they retire. The additional entitlements provided to federal magistrates under the Federal Magistrates Amendment (Disability and Death Benefits) Bill will assist in both ensuring the continued high calibre of appointees and ensuring that federal magistrates can focus on their important duties without being distracted by concerns over the adequacy of protection available to them and their dependants in the sad event of disability or death. I commend these bills to the Senate.

Bills read a second time.