Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

The move towards a fair, inclusive and just society is a journey. It is a series of steps that this nation takes together, mostly forward but occasionally backward. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 is most definitely a step forward. It is a significant piece of human rights legislation, and it is a significant piece of pro-family legislation that will help to overcome the discrimination still faced by tens of thousands of gay and lesbian Australians, their families and their children. This bill will amend 68 Commonwealth statutes to remove discrimination against same-sex couples and their children. These amendments extend across the entire scope of government activities because the discrimination experienced by gay and lesbian Australians has been both unjust and pervasive.

This bill is an acknowledgement that the Commonwealth has failed to ensure what should be a fundamental right for all Australians: equality before the law. Our Commonwealth has failed to provide equal access to health and social security. Our Commonwealth has failed to honour and support every one of our veterans. Our Commonwealth has failed to support equally all working Australians as they save for retirement. Our Commonwealth has failed to treat with respect and dignity all Australian families. In short, our Commonwealth has treated gay and lesbian Australians as second-class citizens.

To consider just how pervasive this discrimination has been, it is worth listing some of the acts which are being amended by this bill: the Crimes Act 1914, the Commonwealth Electoral Act 1918, the Superannuation Act 1976, the Health Insurance Act 1973, the National Health Act 1953, the Migration Act 1958, the Australian Citizenship Act 2007, the Privacy Act 1988 and the Corporations Act 2001. Every single one of the acts that I have just mentioned is significant to our national life. The acts deal variously with the provision of government services, with participation by Australians in political life, with the relationship between individuals and the executive and with the functioning of our national economy. In every single one of these acts, we find discrimination against our fellow Australians.

The laws of this nation must speak to and reflect the lives that Australians lead. Australian families and relationships are diverse, and our laws should reflect this diversity. Schedule 2 of this bill makes a number of amendments to the Acts Interpretation Act 1901 to insert consistent definitions for ‘de facto partner’, ‘child’, ‘parent’, ‘stepchild’ and ‘step-parent’ across Commonwealth legislation. The inclusion of these definitions is a positive step, providing consistency across government where appropriate, as well as reflecting the reality of modern family life in Australia. Importantly, proposed section 22A(a) of the Acts Interpretation Act will recognise state and territory relationship registers. Like this legislation, the development of relationship registers in Victoria, Tasmania and the Australian Capital Territory also represents another step towards a fair, inclusive and just society, and I look forward to their establishment in other states and territories.

This bill has both functional and symbolic meaning. These changes are important in removing the functional discrimination that is experienced by gay and lesbian Australians every day. A number of these changes in particular merit further explanation. Under the Aged Care Act 1997, both an accommodation payment and daily residential care fees are payable for residential accommodation in an aged-care facility. The accommodation payment is subject to an assets test, and a person entering an aged-care facility will only have to make an accommodation payment if their qualifying assets are worth more than $33,000. In a number of circumstances, the family home is excluded from consideration as an asset. These circumstances relate to the continued residence in the home of the person’s partner, a dependent child, a close relation or a carer.

The government has made the decision in relation to removing discrimination in this act for a very good reason. The decision for one family member to go into care or to be placed into care is a decision that thousands of Australian families struggle with each year. Placing yourself or an elderly family member into care is an acknowledgement that professional assistance is needed due to declining health or mental faculties. It is a difficult time for families and it should not be made more difficult. Yet that is precisely what we do in the case of same-sex couples.

The Aged Care Act 1997 does not, currently, recognise same-sex couples. For the purposes of this act in its current form, they are considered to be single. Putting aside the offensiveness of ignoring what has possibly been a lifetime of love and care, there is a very real financial burden placed on many same-sex couples in these circumstances. In many cases, people who find themselves in this situation may be forced, due to the high costs of aged care, to sell their homes. The Aged Care Act effectively says to elderly gay and lesbian couples, many of whom have been together for much of their lives, ‘Your relationship does not exist. The relationship that you have built and the love and support that you have provided to each other count for nothing in the eyes of your government.’ And it also says something like this: ‘Because you are not in a relationship, if one of you requires care you will be charged higher costs. Your family home will not be protected and your partner may be forced to move in their old age.’ The description of this situation as ‘discrimination’ seems almost too clinical. It is, in fact, cruel. It is offensive. It is mean-spirited. And it is unworthy of our Commonwealth.

Similarly, under the National Health Act 1953, same-sex couples and their families experience discrimination in accessing the Medicare and the Pharmaceutical Benefits Scheme safety nets. These safety nets exist to limit the amount that will be spent on medical expenses by people with high medical costs either through out-of-hospital expenses, in the case of the Medicare safety net, or through pharmaceutical expenses, in the case of the Pharmaceutical Benefits Scheme safety net. Neither the Health Insurance Act 1973, the legislation which governs the Medicare safety net, nor the National Health Act 1953, which governs the PBS safety net, recognises same-sex couples. As such, same-sex couples and their families are placed at a financial disadvantage. For a family which faces high medical expenses, this may result in hundreds or thousands of dollars being paid out which an opposite-sex couple in a similar situation would be protected against paying.

I would like to quote something that Mr John Goldbaum said in his submission to the inquiry conducted by the Human Rights and Equal Opportunity Commission:

We are now getting old. My husband’s sister and her husband are allowed to combine their expenditure in order to reach their PBS and Medicare safety net thresholds. My husband and I need to pay out twice as much because we have to reach our safety nets individually. It’s not the money that concerns us; it’s the principle. It makes us second-class citizens despite the fact that we are first-class taxpayers.

This is a recurring theme throughout the Human Rights and Equal Opportunity Commission’s report. The people who made submissions and gave evidence often said that it is not merely the financial disadvantage that the discrimination causes, although this is a problem; it is equally the knowledge that their government treats them as second-class citizens.

The reforms contained in this bill, along with those in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, the Evidence Amendment Bill 2008, and the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, have been a long time coming. The previous government failed to address, and failed to rectify, the discrimination experienced by gay and lesbian Australians. I am proud of the leadership that has once again been shown by the Labor Party in enacting law reform that advances human rights in this country.

Consider this fact, Madam Deputy Speaker Saffin: over the last 25 years in Australia, gay and lesbian law reform has either been enacted by Labor, or attempted by Labor, and stymied by a conservative upper house in every single period of federal, state or territory Labor government. Only two conservative governments in that period have enacted any gay and lesbian law reform: the Liberal government of Victoria, under then Premier Jeff Kennett, enacted manifestly inadequate antidiscrimination laws based on lawful sexual behaviour rather than sexual orientation; and the Country Liberal Party government in the Northern Territory decriminalised homosexuality in 1983 and passed antidiscrimination protections belatedly in 1992. For all the Liberal Party’s talk of freedom and liberty, they have demonstrably failed to deliver for gay and lesbian Australians and for human rights more generally in this country. I would like to commend the Attorney-General for continuing and furthering Labor’s traditional role of action in the area of human rights. That, over the last six months, four bills that seek to remove discrimination against same-sex couples and their families across a vast array of legislation have been introduced into this House is testament to the Attorney-General’s commitment to human rights.

It is important for us to remember that human rights are not some sort of abstract notion that exists purely in the realm of legal theory or political philosophy. These reforms will make a real difference in the lives of thousands of Australian families and, in particular, in the lives of thousands of children who live in same-sex-couple families. As the Human Rights and Equal Opportunity Commission’s report concluded:

Many of the federal laws … discriminate against the children of same-sex couples and fail to protect the best interests of the child in the area of financial and work-related entitlements.

This bill is a pro-family bill of the best kind. It places at front and centre the needs of children, and it gives to same-sex couples and their families some of the legitimacy provided by the power of the Commonwealth. It sends a clear message that the Commonwealth is supportive of all Australian families. I have made this point previously, in speaking to the legislation in the same-sex area that was before the House earlier this year, but the point is worth making again: you are not pro-family if you actively work to disadvantage some Australian families. You are not pro-family if you actively seek to exclude some Australian families from enjoying the rights enjoyed by others—you are merely a hypocrite.

I believe that Australia is a better country than the hypocrisy and judgementalism that pervades so much of the opposition to achieving equality for gay and lesbian Australians. It is a simple idea—that all families and all children are owed the respect of our Commonwealth, and that equality under our law for all citizens should be a given. One day we will look back as a country with puzzlement at those who opposed and resisted this idea at every turn, regarding them the way we today regard those who opposed gender or racial equality. I would like to end with a quotation from another of the submissions to the Human Rights and Equal Opportunity Commission inquiry, this one from a lesbian couple from Adelaide, who said:

We are an average suburban family. We are working hard and contributing to our community. We don’t want special treatment - just what others can expect from their legal and social community. Our rights are denied simply because of who we love. We just want equality.

With this bill, we take one more step forward towards equality. I commend this bill to the House.

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