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

I would like to thank the honourable members for their contributions to the debate. I would like to echo the simple words of the member for Sturt: it is overdue. As I informed the House last week, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 introduces the first part of historic reforms to amend the Commonwealth laws that discriminate on the basis of sexuality. I am proud that within six months of coming to government we have managed to audit all Commonwealth laws to identify discrimination against same-sex couples and to introduce this legislation. The public servants involved have, quite frankly, done an outstanding job. The reforms in this bill will make a practical difference to the lives of a group of fellow Australians who for far too long have suffered discrimination in superannuation at a Commonwealth level.

However, members of the opposition may not be aware that the drafting of legislation to remove discrimination on same-sex relationships has not been easy—and that is an understatement. It required care to ensure that existing entitlements are not detrimentally affected while seeking to remove discrimination. I will say a little more about that in terms of the concept of close personal relationships that has been raised throughout the debate.

These particular amendments that relate to these particular superannuation laws are time critical because of the benefits that will flow to people who are grieving from the loss of a loved one. For that reason, we have split the legislation into two parts to enable these amendments to pass now while the rest of the legislation is drafted. I fully expect and think it is appropriate for the second tranche of the legislation to be scrutinised by a Senate or House of Representatives committee. Amendments to discriminatory terms in Commonwealth laws will set a new legal standard for fairness and consistency and will provide functional recognition of same-sex couples and, importantly, their children. Discrimination on the basis of sexuality has largely been removed from state and territory laws, and this bill will take equality for same-sex couples and their children to the next level by introducing long-overdue reform to remove discrimination from Commonwealth laws.

In terms of the issues raised in the debate, I would like to address up front the concern of the Leader of the Opposition that replacing the term ‘marital relationship’ with the new definition ‘couple relationship’ could be construed as undermining the institution of marriage. Removing sexuality discrimination does not undermine marriage. The question of recognition of same-sex marriage is a separate issue entirely from that of providing equal recognition for same-sex couples. The government’s policy on marriage reflects the widely held view in the community that marriage is between a man and a woman. This in turn reflects the traditional view of marriage that has been built over many centuries. Removing discrimination is about making sure that same-sex couples are recognised for all practical purposes and have the same entitlements as opposite-sex de facto couples. There will be winners and losers, but the government has made it known that this is precisely what the reforms will achieve. I think, in fairness to those who are potentially losers, they recognise this is part of the principle of removing discrimination.

I wish to make it abundantly clear that the use of the term ‘couple relationship’ does not undermine existing marriage laws. As I said in my second reading speech specifically—and I will refer honourable members to it again—the government’s position in relation to the existing definition of marriage is unambiguous. We believe that marriage is between a man and a woman. However, the government has also made clear its commitment to implementing its policy of conferring the same entitlements on same-sex de facto couples that are conferred on opposite-sex de facto couples. The bill seeks to treat opposite-sex and same-sex couples equally for the purposes of payment of reversionary benefits. It is important to know that we are talking about reversionary benefits as part of these measures. As such, it is desirable to use consistent terminology for recognising persons in certain relationships.

This has been a difficult and technical piece of legislation to draft. It is not the case, as suggested by some of those opposite, that the terms of this legislation are clinical and austere. As the Leader of the Opposition also noted, and we agree with him, it is important that new discrimination not be introduced by these amendments. Currently both opposite-sex de facto couples and married couples are entitled to death benefits if they are considered to be in a marital relationship. These are death benefits in the context of a reversionary benefits scheme—in other words, a monthly, fortnightly, weekly or other payment. However, it would be contrary to the government policy on marriage to include same-sex de facto couples within the definition of ‘marital relationship’. That is precisely because we believe that marriage is between a man and a woman. The alternative is to separate marital from de facto couple relationships. However, I am advised that this could create statutory interpretation problems by giving ‘marital relationship’ a narrower meaning, potentially enabling it to be treated unequally to de facto relationships. There would be the risk that a court would take the view that a ‘couple relationship’ was a different test to a ‘marital relationship’. This might in fact take the form of a superannuation benefit being given or denied to a person in a marital relationship when compared to a person in a de facto relationship. This might have created marital status discrimination contrary to Australia’s international obligations and contrary to the intention, I am sure, of members of both sides of the House.

As a result, the bill ensures equality by replacing the term ‘marital relationship’ with the term ‘couple relationship’. This is similar to the approach recommended by the Human Rights and Equal Opportunity Commission. The bill also replaces the phrase ‘husband or wife’ with the term ‘partner’. The definition of partner is non-discriminatory and applies to persons, whether the persons are in a same-sex or opposite-sex relationship. This will place all persons who have an opposite-sex or same-sex relationship with a scheme member on an equal footing. Let me state again: removing discrimination in no way diminishes the status of a marriage in the assessment of superannuation benefits.

The bill aims to allow same-sex partners and their children to receive superannuation benefits on the same basis as opposite-sex de facto partners and their children. Recognition is necessary if we as a community are to remove discrimination against same-sex families and their children. The definition of ‘child’ in the acts has been expanded to extend superannuation death benefits to include children of same-sex relationships. The new definition expands the classes of children who may be taken to be a child of the member for the purposes of determining eligibility for orphaned children benefits. It has been suggested by a member opposite that all that is required under these amendments is a simple biological connection between a child and a member of a superannuation scheme. I want to make clear that this is not possible. The overriding requirement in the definition of a child under the legislation is that they be a child who is the product of the relationship. Not only must a child have a biological connection to one of the partners of the relationship or be born to one of the partners; they must also be the product of the relationship.

In addition, under the legislation it is also an existing and separate requirement that a child be an ‘eligible child’ in order to be entitled to a reversionary payment. For this to occur, a child would need to be dependent on the member and meet the other requirements of being an eligible child. That requirement will not be changed by these amendments. I reject entirely the suggestion that this bill opens the door to gay adoption, gay IVF or gay surrogacy. Adoption, IVF and surrogacy are matters primarily for the states and territories.

The bill does not create relationships that do not already exist. The issue from the government’s perspective is not about encouraging gay parenting but about ending discrimination. The reforms in this bill recognise real family situations. Recognition is necessary if we as a community are to remove discrimination against same-sex families and their children.

Members opposite have suggested that the proposed definition of ‘couple relationship’ should include interdependent couples. The concept of ‘partner’ takes its ordinary meaning and cannot extend recognition to interdependent couples, such as the example frequently given of two elderly sisters living together. This is made clear in the explanatory memorandum. I note that the opposition want to broaden the bill’s scope to include interdependent relationships. This option was explicitly rejected by the Human Rights and Equal Opportunity Commission. It is also an option which appears to have been previously rejected by the opposition when they were in government. I note, in fact, that the opposition, with respect to many members who I respect on a personal level, have not thought through the implications of their current position on interdependent couples.

Bearing in mind that we are talking about the first tranche of a package of laws that will remove discrimination from Commonwealth laws, I would like to provide some examples. Let me take the example of two elderly sisters who live together and look after each other, which was raised by the opposition in debate, as I have noted. Suppose each sister currently receives the age pension at the single rate of $546.80 per fortnight. If, as the opposition proposes, they were recognised as a couple under Commonwealth laws, each would receive the couple rate of $456.80 per fortnight—that is, their payments would go down. In other words, they would be $180 worse off per fortnight. Currently, each would also receive a utilities allowance of $500 per year. In other words, they are treated as individuals. If, as the opposition proposes, they were recognised as a couple, they would only receive one utilities allowance between them, losing a further $500. And there are likely to be other negative financial implications, such as telephone allowances and rent assistance. As the member for Menzies appeared to appreciate in his contribution—and I respect the member for Menzies—we are talking about amendments including, to use his phrase, a package or suite of other laws where these measures will necessarily occur.

The opposition’s renewed interest in the role of the Senate in scrutinising legislation is welcome, but I fully expect that when the second tranche of legislation is introduced it will occur. However, this legislation is time critical. The only reason to refer this legislation to a Senate committee would be to achieve a prolongation and extend the discrimination that currently exists against same-sex couples, discrimination which the opposition leader and many opposite are determined—and we appreciate their genuineness—to remove.

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