Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Hansard source

I welcome the opportunity to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. This bill continues the long march towards the removal of unfair discrimination against Australians on the basis of their sexuality. Liberals initiated that march. Murray Hill, a Liberal member of the Legislative Council in South Australia, introduced a bill in 1972 to decriminalise homosexuality in my own state. John Gorton, a Liberal Prime Minister, moved the first motion in the House of Representatives to address homosexual law reform. In 1973 he moved that ‘in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law’. This was the first time that any member of this House had tried to address unfair discrimination against members of the Australian population on the basis of their sexuality.

In the previous government, steps were initiated to remove discrimination against people on the basis of their sexuality. Superannuation laws were changed to include same-sex partners as potential beneficiaries of death benefits in certain circumstances. The Income Tax Assessment Act, the Superannuation Industry (Supervision) Act and the Retirement Savings Accounts Act were amended to expand the potential beneficiaries of tax-free superannuation death benefits to include ‘interdependency relationships’. These included same-sex relationships.

The momentum occasioned by those changes and the report of the Human Rights and Equal Opportunity Commission in 2007 entitled Same-sex: same entitlements, which recommended the amendment of 58 laws that discriminate against same-sex couples, caused me to reach the conclusion that reform in this area would have come no matter the outcome of the election on November 24, 2007.

Recently, in April of this year, the State Council of the Liberal Party of Australia in South Australia, led by the President of the South Australian Young Liberals, Hannah Treloar, passed a policy motion that called on the federal government to introduce omnibus legislation to deal with 58 federal laws that will redefine the terminology used in these laws by inserting a new definition of de facto relationship and de facto partner that is inclusive of same-sex couples. This bill is the first of two bills that will effect that long-overdue reform.

So, the members of the Liberal Party in South Australia, like the rest of the community in general—in all but a handful of cases—have no desire to further an outdated, archaic and discredited view in relation to discrimination against members of same-sex couples. Further, I am glad to be able to say that I speak in concert with the federal platform of the Liberal Party of Australia. That platform condemns ‘narrow prejudice’ as ‘an enemy of liberalism’ and commits its members to oppose ‘discrimination based on irrelevant criteria’. It is a platform of long standing—hardly the work of a party seeking to entrench the ignorance that would lead anyone to treat another differently because of their sexuality.

As my esteemed colleague the now shadow Attorney-General, Senator the Hon. George Brandis SC, said in a debate in the other place in October 2006:

It is far too late in the day for anyone sensibly to suggest that in Australia there is a place for discrimination against people on the grounds of their sexuality. That attitude reflected the prejudices of a different time and a different age which are now obsolete and must be seen to be ignorant.

I abhor discrimination in all its forms. Discrimination on the basis of ethnicity, religion, gender, disability, age or sexuality is to be condemned. The philosophy of liberalism does not countenance discrimination.

This bill acts in an area which is long overdue: the discrimination that exists against same-sex couples in the treatment of tax and in the payment of superannuation benefits. I congratulate the government for introducing it. It is the first of what I understand are two bills: this one and an omnibus bill that will implement the recommendations of the HREOC report that I have referred to and, besides that, will amend more than two dozen bills.

This bill is supported by the opposition in both its principle and its reach. Like all packages of legislation of great import it is intended that it will be examined by the Senate Legal and Constitutional Affairs Committee in order to ensure it does what the government says it does. The same process has been followed since time immemorial. It is not a delaying tactic any more than the committee’s inquiries into the republic and preamble bills, the amendments to the Australian workplace or the introduction of the new tax system were delaying tactics. With an issue of such importance and magnitude, it would be more unusual if there were not such an inquiry. That said, an inquiry into this bill in particular should be able to be completed before June 30—an outcome that I would welcome.

The opposition would like to see the definitions in this bill refined to clearly encompass bona fide interdependent domestic relationships. To me, the bill does not rise or fall on this point, but it would properly recognise that, from a financial and property ownership perspective, ensuring clear definitions in the bill that included bona fide interdependent domestic relationships would benefit many households that encompass many of the hallmarks of same-sex couple relationships. Some of these have been outlined by the Leader of the Opposition.

There are some who seek to characterise support for this bill as a diminution of support for the family unit. This is a false dichotomy. The family is a robust unit in our society. It is in no way threatened. It does not need to be buttressed by diminishing the rights of others. Do these people who make such a claim believe that the family unit will be threatened because discrimination in superannuation and pension schemes based on sexuality is to be removed? Of course it will not be threatened. In a wider sense, fellow Australians with a same-sex orientation do not suddenly cease to be members of a family—they are brothers, sisters, sons, daughters, neighbours and friends. In some cases they are fathers and mothers. In the modern era everyone has an equal part in making our society great. Removing discrimination is far from controversial; it is overdue.

This bill amends the superannuation and pension schemes under the Defence Forces Retirement and Death Benefits Act 1973, the Defence Forces Retirement Benefits Act 1948, the Federal Magistrates Act 1999, the Governor-General Act 1974, the Judges’ Pensions Act 1968, the Law Officers Act 1964, the Parliamentary Contributory Superannuation Act 1948, the Superannuation Act 1922 and the Superannuation Act 1976. It also amends five regulatory superannuation and taxation acts. It is a precursor to the second bill, which will come in the next session of this parliament, which will be more far-reaching in its elimination of discrimination. Currently, the same-sex partner of a beneficiary in a Commonwealth defined benefit superannuation scheme and the children of that relationship are not entitled to direct access to reversionary death benefits on the death of the beneficiary. To change that position, the bill amends the acts to replace ‘marital relationship’ with ‘couple relationship’ and ‘husband’, ‘wife’ and ‘spouse’ with ‘partner’. A couple relationship is defined as having existed when a person ordinarily lived with another person as their partner on a permanent and bona fide domestic basis. To establish such a relationship requires evidence that: the person was wholly or substantially dependent on the other person at the relevant times, they were legally married to each other, they had a child or had adopted a child during their relationship, they had jointly owned a home which was their usual residence or the relationship was registered under a prescribed law of a state or territory as a prescribed kind of relationship—in other words, a relationship not unlike the current definition of a de facto relationship in law. There is some suggestion that a non-sexual interdependent relationship may qualify as a couple relationship under this definition. This is a matter to be properly inquired into by the Senate Standing Committee on Legal and Constitutional Affairs, if the Senate should decide to make such a reference to that committee.

In relation to children, the amendments define the child of a couple relationship as: a child born of a couple relationship, a child adopted by the people in the couple relationship during the period of the relationship or a child who is the product of the relationship. For a child to be the product of the relationship, the child must be the biological child of at least one person in the relationship, conceived using the gametes of one party to the relationship or the birth child of a woman in the relationship. Thus, a child of one party to a previous relationship would not be considered the child of the other party for the purposes of the amendments. As the Leader of the Opposition has made clear, the status of children within the ambit of the bill is something the opposition believes should be made clear. Again, this is a matter to be quite properly inquired into by the Senate Standing Committee on Legal and Constitutional Affairs should such a reference ensue. As to non-sexual interdependent relationships, the intention of the drafters was not to include them in the current round of legislation. However, because the bill provides for recognition of relationships registered under state and territory legislation, some such relationships will be included. Just how this will be achieved and the reach of the legislation is something not entirely clear in the bill and a matter that the Senate Standing Committee on Legal and Constitutional Affairs will address, I am sure, if a reference is made to it.

The government has described the bill as ‘time critical’ because it will allow payment of reversionary benefits to partners and children who have no entitlement under the current law. It hopes to enact the legislation before 1 July in order for the taxation consequences of the amendments to apply in the 2008-09 financial year. It is not the intention of the opposition to frustrate this legitimate intention; however, the bill’s introduction has been delayed some time by the government’s own actions. While this is unfortunate, it is not the fault of the opposition. The government has entirely itself to blame for this delay. If there is a criticism to be made here, the cards must fall at the feet of the Attorney-General, and no-one else. The timing for the consideration of this bill lies with the Senate. The Senate Standing Committee on Legal and Constitutional Affairs will determine—should it receive a reference—if the bill can be appropriately considered and dealt with by June 30. Many of the concerns of my colleagues will be able to be addressed by a reference to the Senate Standing Committee on Legal and Constitutional Affairs, still others are matters for the omnibus bill to come. In the meantime, I support this bill and I support the opposition position that it go forward at the second reading without substantive amendment. I commend the bill to the House.

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