Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 will amend 68 Commonwealth laws. The Attorney-General said that the bill was long overdue. I think it is far from long overdue; it is very overdue. We should not treat Australians differently, whether they live in Tasmania or the Torres Strait, in Perth or Penrith, or in my electorate in Booval or Boonah, or in Kalbar or Karalee. It is simply wrong to penalise children on the basis of the sexual orientation of their parents. The best interests of children must be the paramount consideration in all legislation. It is unacceptable that more than 20,000 Australians are discriminated against and their families and children denied fundamental financial and work related entitlements which, for example, my wife and I and our children enjoy in what is often described as a traditional marital relationship. Why should my family be entitled to more in terms of carers’ leave, spend less for medical care, have better access to Medicare and the PBS safety net, and receive more tax concessions and enhanced pension rights than those who are my friends and family who live in same-sex relationships. It is unacceptable in a society which says that it aspires to a fair go to allow this sort of discrimination to continue. If we say we live in a humane society, then we must believe that any child should have the same equality of opportunity and equality before the law as anyone else. And if we say we care about the financial security of all Australians, then we must pass this bill.

Specifically, this bill inserts a new definition of a de facto partner into the Acts Interpretation Act 1901 to ensure equality for all. A couple will be taken to be living in a de facto relationship if they are living together on a genuine domestic basis, having regard to a whole range of factors included in the definition. Those factors are similar to what we have seen in state legislation governing property and spousal maintenance issues, and specifically in part 19 of the Property Law Act of Queensland and the Queensland Acts Interpretation Act. It is also akin to the groundbreaking bill which we debated in this House a few weeks ago on a very long overdue Commonwealth jurisdiction enhancement in terms of family law disputes in relation to property and superannuation issues between de facto heterosexual couples and same-sex relationships.

Some of the factors that the court will have to look at to establish that the couple is actually living in a de facto relationship, whether of a heterosexual or homosexual nature, include the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship exists, the care and support of children, the degree of mutual commitment to a shared life, the reputation and public aspects of the relationship and other factors. Interestingly, under proposed section 22B amending the Commonwealth Acts Interpretation Act, a person will be considered to be in a de facto relationship if that relationship is registered under a prescribed law of a state or territory as a prescribed kind of relationship. In other words, if the couple has taken the time to register their relationship under state or territory schemes, they automatically come within the definition of a de facto relationship for the purpose of the Commonwealth, and so they can enjoy the entitlements that the legislation provides.

The bill expands the definition of ‘child’. It does not replace the definition of child in the current legislation; it expands the classes of children. It states that a child will be considered to be a person’s child where the child is the product of a relationship the person has had with another person or with another couple. The key definition of child is extended to include recognition of children of opposite-sex relationships who are not covered by existing definitions in terms of other acts and other provisions. For example, if a child is biologically related to either member of an opposite-sex couple and was conceived through a private surrogacy arrangement, either by the use of artificial insemination or sexual intercourse, that child would be recognised. Consent to the procreation of a child is not an express requirement in the key definition of child and that is because, as it has been described in the explanatory memorandum, the term ‘product of a relationship’ implies an element of joint endeavour. In the circumstances, the extension of class of children is a good thing for those children who in the past have not enjoyed the benefit of this type of legislation.

There is a lot of legislation being amended—68 Commonwealth laws. They cover a vast array of Commonwealth jurisdiction and legislation, including legislation in relation to agriculture, fisheries and forestry and legislation under the Attorney-General’s purview. These include the Acts Interpretation Act, the Administrative Decisions (Judicial Review) Act, the Age Discrimination Act, the Australia Federal Police Act, the Bankruptcy Act, the Crimes Act, the Judges (Long Leave Payments) Act, and the High Court Justices (Long Leave Payments) Act. So there is a lot in terms of the Attorney-General’s portfolio, and you would expect that a lot of legislation would go towards that in which the Attorney-General has coverage. There are also changes in terms of the Broadband, Communication and the Digital Economy portfolio. Defence also has legislation which is amended—specifically, the Defence Force (Home Loans Assistance) Act, the Defence (Parliamentary Candidates) Act and the Royal Australian Air Force Veterans’ Residence Act. Education, employment and workplace relations are also covered to ensure that children are not discriminated against in their educational opportunities. The Education Services for Overseas Students Act, the Higher Education Support Act and the Judicial and Statutory Officers (Remuneration and Allowance) Act are also amended.

There are some changes in the definition of stepchildren, step-parents and widowers. This is another area which needed reform. Ordinarily, references to stepchildren, step-parents and widowers means that there has to be a marital relationship. In the future, that will not be the case. The bill expands the definitions of stepchild and step-parent to include a child of an opposite-sex or same-sex de facto partner by a former relationship and includes same-sex or opposite-sex de facto partners of a parent of a child by a former relationship. That obviously intends to correct what has been a longstanding injustice. There are amendments to the tracing rule as well, which will help identify family relationships. For example, where family relationships such as brother, aunt and grandparent are provided for in the bill, the tracing rule will allow those relationships referred to in the bill to include those relationships through a parent-child relationship.

I cannot really see how removal of discrimination against same-sex couples and their children in any way undermines marriage. It does not. It does not alter or affect marriage in any way whatsoever. I find it hard to accept that groups that have campaigned against this type of legislation claim to promote faith, family and freedom. How can they say that they promote these types of virtues when they oppose freedom from discrimination? Many good friends of mine are involved in the Australian Christian Lobby and they have played a constructive role in advocating for the relief of poverty, for more foreign aid to those countries that have been disadvantaged and they have rightly pushed the case for responsible alcohol consumption and protection of children from pornography and all its exploitation. To its credit, the ACL have actually given approval to end discrimination and actually agreed that the state legislation in terms of registration of relationships is appropriate. But I do not agree with their criticism that the Rudd government is engaging in anything which would undermine marriage. The bill does not have this intention; it does not have this unintentional consequence.

This bill has its origin in the 2007 HREOC report, Same-sex: same entitlements. This bill is the fulfilment of an election commitment. It is about lifting up; it is not about bringing down. It is not the thin end of the wedge. It is not a backdoor attempt to legislate for polygamous relationships, as was said previously in relation to the family law amendments. It is an attempt to help people who are currently disadvantaged in our community. There has been a lot of public comment in relation to ‘interdependent relationships’. This bill should not recognise ‘interdependent relationships’. How does one really define that? It is notoriously complex and it covers a vast array of relationships. It is almost impossible to quantify the cost to the Australian taxpayer if that were included in this bill. There is simply no evidence or data from which one could calculate the expected number of relationships. Sadly, I think the infusion of this type of issue in the debate is a distraction; it is a ruse. It is a device to delay equality from being achieved.

It is a great shame that, in their nearly 12 years in government, the Howard government did not bring this type of legislation into the House.  Their attitude to same-sex law reform could be characterised as idleness, indolence and inactivity. Their response in relation to helping people in these circumstances and their children is a disgrace. They did nothing. They promised much and delivered little in this regard. They denied economic justice to same-sex couples. This bill will help tens of thousands of Australians and their children. About 20 per cent of lesbian couples and about five per cent of gay male couples have children. Their children will benefit. This bill will overcome the challenges left by the Howard government. It is a fair and humane bill. It is about ending discrimination. It is about equality before the law. It is about financial security. It is about lifting up and helping fellow Australians to achieve their full potential in life and giving them the kind of life that those of us who are in other relationships take for granted every day of our existence. I commend the bill to the House.

Stuart Robert (Fadden, Liberal Party) Share this | Link to this | Hansard source

The government’s Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 proposes to build on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 to provide equality of treatment between same-sex couples and opposite-sex de facto couples in 68 pieces of legislation. This is the foreshadowed omnibus bill that intends to treat same-sex couples and their children in the same manner as heterosexual de facto couples and their children in Commonwealth legislation. Whilst the coalition will not deny the government a second reading of the bill, I strongly support putting this bill to the Senate Standing Committee on Legal and Constitutional Affairs for greater scrutiny—and amendment if needed.

It is important that this bill achieve the stated intent of ensuring property and financial justice—which I strongly support—but without diminishing the time-honoured institutions of marriage and parenthood. According to the 2006 census there are 3.275 million families with children in this country, of which 2,868 are same-sex couples with children. While same-sex couples with children make up just 0.09 per cent of those families, that does not mean they should not enjoy the same rights and access to property and financial justice. However, no government in this place has the right to fundamentally alter the definition of ‘parenthood’ to suit just 0.09 per cent of couples when property and financial justice can be achieved through other means.

As I have consistently stated in this place, I do not support in any way, shape or form the loss of the privileged position of marriage in our society. Thus, I am concerned that same-sex relationships are to be treated equally to marriage in all Commonwealth laws except the Marriage Act 1961 and the Family Law Act 1975. This one bill being debated tonight amends no fewer than 68 laws to achieve this levelling of marriage. My absolute support for marriage is based on the conviction, shared overwhelmingly by ordinary Australians, that children do best when raised by a mum and a dad and that nothing should be done by any parliament to make it likely that more children will be raised by same-sex couples, who by definition cannot provide a mum and a dad. The population statistics support this contention. Same-sex couples with children account for only 0.09 per cent of families—99.91 per cent of the nation hold a different view.

An overarching concern is that this bill seeks to normalise same-sex parenting by changing the definition of ‘parenting’. It has moved past its stated intent of property and financial justice and seeks to make the lifestyle choice of homosexuality equal to the time-honoured mum and dad as the basis for parenthood. This is something I do not agree with. I support removing injustice but I do not support a change in the definition of parenting as a mechanism to achieve justice when justice can be achieved in other ways.

This bill needs to treat property and financial justice in cases involving homosexual couples as the exception to the norm; it should not seek to change the norm. Marriage between a man and a woman is the norm. Parenthood with a mum and a dad is the norm. Kids growing up with a mum and a dad is the norm. Fatherhood is the norm. In saying this, I do not seek to undermine those many single-parent families who love and support their children in difficult circumstances and set an example for all of us of what it means to sacrifice for our kids on a daily basis.

I was very privileged to hear the Leader of the Opposition, Malcolm Turnbull, share some of his own personal experiences at a public IBL lunch on the Gold Coast recently. He told of growing up in rented flats with his dad because his mum had left. He spoke of how his father worked hard to give him a great education, how his father loved and supported him and how his father never once talked his mother down to him—not a single time. This is the essence of great fatherhood.

Many single mums and dads in this nation do an outstanding job and they are to be commended. Yet, despite it all, children ostensibly need a mum and a dad. Speaking as a father of two small boys, my kids need me. My little three-year-old said to his mother the other day when I left to come back to parliament, ‘My daddy isn’t here and I’m very sad.’

Dr Wade Horn, the editor of the Father Facts book and probably the most researched social scientist on issues surrounding fatherhood, says that a family without a father is a lot like a car without one of its front wheels: it can still be driven but it is pretty hard to steer. A 12-point plan for strengthening and supporting Australian fathers was launched by the then Prime Minister in June 2003 with bipartisan support from the then opposition. The National Fathering Forum, which put together the 12-point plan, stated that every child has the fundamental right to both a mother and a father. The best way to secure this right is to establish a loving and stable marriage between a man and a woman for life. A large body of social science research confirms the near-universal belief, across time and cultures, that marriage between a mum and a dad is the best environment for raising children.

Norway recognised same-sex unions in 1993, the second country in the world to do so, followed by Sweden in 1995. A major study that looked at the entire population registers of those two countries was published under the title ‘Divorce-Risk Patterns in Same-Sex Marriages in Norway and Sweden’. The unequivocal results show that gay male unions are 50 per cent more likely to separate and lesbian unions are 167 more likely to separate within the first eight years. Thus, two of the first nations that went down this path have discovered, empirically, beyond any doubt, that homosexual relationships are far more unstable than heterosexual relationships between a mum and a dad.

Furthermore, a study of Australian primary schoolchildren was published in 1996 by Mr Sarantakos, associate professor of sociology at Charles Sturt University, entitled ‘Children in Three Contexts’. The study found that out of the primary schoolchildren from three family types—married heterosexual couples, cohabiting heterosexual couples and homosexual couples—in every area of educational endeavour, including language, mathematics, social studies, sport, class work, sociability and popularity, and attitudes to learning, children of married heterosexual couples performed better than the other two groups. The study concluded with these words: ‘Married couples seem to offer the best environment for a child’s social and educational development’. This is not to suggest that a same-sex couple cannot be loving and supportive of their children. It is simply to say that all the available evidence points to what history has always known through the eons of time: children will do better with a mum and a dad, in a stable marriage, who love each other and their kids.

Children with a biological mother or father with a homosexual partner should not be discriminated against. Children must be able to inherit their parents’ and partners’ assets and have equal rights with regard to workers compensation and to victim compensation payments where one parent or partner is killed or injured. However, this bill is looking to redefine the definition of a child—not through amending any central piece of legislation, such as the Acts Interpretation Act 1901, but through expanding the definition within each of the acts that this bill seeks to amend. The basis for the change of definition of a child is the premise that a child is a ‘product of a relationship’. The bill states:

… someone is the child of a person if he or she is the product of a relationship the person has or had as a couple with another person (whether of the same or a different sex). For this purpose, someone cannot be the product of a relationship unless he or she is the biological child of at least one of the persons in the relationship or was born to a woman in the relationship.

The bill also redefines the meaning of stepchild to include a child of an opposite-sex or same-sex de facto partner by a previous relationship. Thus the parental status of a same-sex partner who has no biological relationship to a child will continue for the child’s life even if the same-sex relationship breaks up. A new definition of stepchild dispenses with the need to marry a child’s parent and makes every successive de facto or same-sex partner of the parent a ‘step-parent’. This has profound implications, as step-parents have rights under the Family Law Act to seek contact orders with a child.

This bill fundamentally alters the definition of a child and removes the assumption that has lasted since humanity began that a child is born as a result of the union between a male and a female. A child is not a product of two males or two females and can never biologically be; therefore, this place should not legislate to say they can be.

Furthermore, if a homosexual couple were looking to parent a child outside of a stepchild situation, there are a range of significant consequences that this bill now allows. For example, a lesbian couple would need a sperm donor to allow one woman to become pregnant, or perhaps they could ask a male friend to father a child, and it would all be based on unenforceable agreements about what role if any the father will have in the child’s life. A male homosexual couple would need a surrogate mother, who would become pregnant with the sperm from one partner, carry the child full term and then relinquish the child to the care of the male couple, again with no enforceable agreements. This bill, in giving such wide sweeping legal recognition as ‘parents’ to both parties of a homosexual couple, gives implicit endorsement to these methods used to conceive a child and the family construct they will grow up in. To legalise that a child can actually have, for example, two fathers and no mother is at odds with the norms that our society is built on. It is at odds with the preamble to the National Fathering Forum’s 12-point plan that identified:

The quality of the relationships between mothers and fathers and their children will determine the destiny of Australia.

Hence the need to support and revitalise marital relationships and secure marriage in Australia as an institution that provides greater social good for the benefit of the whole community. Marriage has been shown to be the foundation link for involved and committed fatherhood.

I do not believe that the consequences of this bill are what the Australian people voted for. They may well have voted for financial and property justice for all—something I support—but I suggest very few people were aware of exactly what this government is now seeking to do to achieve that property and financial justice. The Rudd government is looking to achieve its goal by putting marriage and homosexual relationships on the same footing, by defining them both as simply a ‘couple relationship’ in all but two of the Commonwealth laws. This is not what fatherhood and motherhood are about.

I believe that deliberately creating a child to be placed in a homosexual partnership is irresponsible, considering all of the available evidence, and that the Commonwealth should not be complicit in allowing it either by permitting access to reproductive or surrogacy services for such couples or by granting both partners equal recognition as parents. Yet, through this bill, this Rudd Labor government proposes such things whilst also giving official recognition under the Family Law Act 1975 to surrogacy arrangements without any legal framework for such arrangements and without even an inquiry to engage the Australian people on their views.

The bill also proposes to make amendments to the Migration Act that may permit homosexual marriage contracts obtained overseas to be recognised for the purposes of a visa under regulations to the act. This is clearly unacceptable, particularly as the Rudd Labor government stood and looked the Australian people in the eye and said, ‘We do not support gay marriage.’

In conclusion, I support the coalition’s intent to move this bill to the Senate Standing Committee on Legal and Constitutional Affairs for consideration and amendment if needed. I support property and financial justice for all, and I passionately support the roles of mum and dad and the support they bring to children within their family. Parliament must do all it can to remove any discrimination from any people, but it must also protect marriage as the unique institution, and it must preserve mum and dad as the single best way within the family unit to bring up children.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to 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.

Greg Combet (Charlton, Australian Labor Party, Parliamentary Secretary for Defence Procurement) Share this | Link to this | Hansard source

I obviously also wish to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. Labor went to the last election with a clear commitment to end discrimination against same-sex couples in the area of federal law. The Labor platform, approved at the 2007 national conference of the Australian Labor Party, was very clear in this respect. It said:

Labor believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexuality or gender identity. Labor supports the enactment of legislation prohibiting discrimination on the grounds of a person’s sexuality or gender identity and will audit Commonwealth legislation to amend provisions that unfairly discriminate against any person on the grounds of sexuality or gender identity.

It would not be an exaggeration, of course, as I think previous speakers have observed, to say that action in this area is well and truly overdue. As highlighted by the Attorney-General in his introduction of this bill to the House, it is almost 20 years since sexual preference was added as a ground of discrimination under the Human Rights and Equal Opportunity Commission regulations. The Attorney-General also highlighted in his introduction to the bill other examples of this discrimination. In 1997, the Senate Legal and Constitutional Committee identified discrimination in laws and programs that dealt with tax and superannuation benefits. In 2004, the United Nations Human Rights Committee found that Australia was in breach of the prohibition on discrimination in the International Covenant on Civil and Political Rights because the Veterans’ Entitlements Act denied a person a pension on the basis of sexual orientation.

Last year, the Human Rights and Equal Opportunity Commission, following a substantial inquiry, tabled a report in parliament entitled Same-sex: same entitlements. I spoke about this report during my speech on the last bill in relation to this issue that was before the House, but I think it is important to reiterate some of the findings of that report as they are pertinent to the bill before the House at the moment. The report found that same-sex couples experience discrimination under a wide range of Commonwealth laws, including superannuation, taxation and social security laws. More specifically, the report identified a number of areas where legal and financial discrimination were faced by same-sex couples and their children. The report found, among other things, that: same-sex couples and their families are denied basic financial and work related entitlements which opposite-sex couples and their families take for granted; same-sex couples are not guaranteed the right to take carers leave to look after a sick partner; same-sex couples have to spend more money, generally, on medical expenses than opposite-sex couples to enjoy the Medicare and PBS safety nets; same-sex couples are denied a wide range of tax concessions that are available to opposite-sex couples; the same-sex partner of a federal government employee is denied access to certain superannuation and workers compensation death benefits that are available to an opposite-sex partner; and older same-sex couples will generally pay more than opposite-sex couples when entering aged-care facilities. These are indicators of deep and entrenched discrimination in our society that must be remedied. The Same-sex: same entitlements report also found that approximately 20,000 Australian couples and their children were experiencing discrimination and lack of equality for no other reason than the parents’ sexuality.

The report also rightly framed the issue of discrimination as an abuse of fundamental human rights, as the previous speaker was adverting to. It highlighted some of Australia’s international human rights obligations, finding that international treaties that we were party to created an obligation upon us to remove the discrimination against same-sex couples. It named four international conventions to which Australia was a party and which raised relevant rights and obligations of the Australian government. These included: the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the International Covenant on Economic, Social and Cultural Rights; and the Discrimination (Employment and Occupation) Convention, which is known as ILO 111.

The report examined the rights and obligations that arose from these international agreements, compared these to the discrimination that was present within Commonwealth legislation and found that discrimination against same-sex couples and parents can interfere with the right to protection of family; that discrimination against same-sex couples and parents can interfere with the right to privacy, family and home; that discrimination against same-sex parents can amount to discrimination against a child; that discrimination against same-sex parents can interfere with the best interests of a child—unsurprisingly so; that discrimination against same-sex parents can interfere with the performance of their common and household responsibilities; that discrimination against same-sex parents can interfere with a child’s right to identity; that discrimination against same-sex couples in adoption can interfere with the best interests of a child; that discrimination against same-sex couples can interfere with the right to social security; that discrimination against same-sex parents can impact on a child’s right to benefit from social security; that discrimination against same-sex couples can interfere with the right to health; and that discrimination against same-sex parents can interfere with a child’s right to health.

This is an appalling indictment of Australia’s response to this form of discrimination. Time is up, and these matters must be addressed to ensure there is fairness and justice in our community for people in same-sex relationships and their children. All of these things can be interpreted as nothing less than a damning indictment of our ability to provide basic and fundamental human rights to all of our citizens. I believe that HREOC’s report was extremely valuable in helping to educate the general community on the extent of the discrimination contained within federal legislation, on the impact that this can have and on the need to make sure that government takes action on this failure to provide for fundamental human rights in our society.

I am proud to be part of a government that is finally addressing these issues. I am also personally close to a same-sex couple who are parenting a child and I wish to see, on their behalf, an end to this discrimination. Upon coming to government the Attorney-General instructed his department to conduct an audit of all Commonwealth legislation to identify examples of discrimination against same-sex couples. That audit confirmed the findings contained in HREOC’s report and also identified further areas of discrimination in a range of non-financial areas, such as administrative and evidence laws. From this work the Attorney-General, on behalf of the Rudd government and in partnership with the Attorney-General’s staff, has been working on a program of legislation designed to remove all of this discrimination. It is my pleasure to be able to speak today on what is the second part of the government’s program to remove discrimination against same-sex couples and their children from all Commonwealth law.

The first part of that program, of course, was contained within the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, and I was pleased to have spoken in the debate on that bill in the House. However, along with others who were supporters of that bill, I am not pleased to see that that bill still has not passed the Senate due to the actions of those opposite. Instead the opposition appear to be more focused on the politics of this situation and perhaps pandering to some of the more conservative elements within their own party. They have hidden behind the veil of an argument that suggests that more work needs to be conducted on interdependent relationships.

The fact is that the Attorney-General has dealt with those arguments in a substantive and thoughtful manner on a number of occasions, none of which appear to have been properly considered by the opposition. The government, during the debate on the previous bill, highlighted the fact that a delay in the passage of that bill would result in individuals and children having their right to superannuation benefits unnecessarily denied for a further period of time. The opposition’s refusal to heed these warnings and their referral of the bill to the Senate committee process has only demonstrated, at best, a half-hearted commitment to ending this discrimination. I think that now that the member for Wentworth has become the Leader of the Opposition—in the past he has been engaged in some advocacy for same-sex rights—some leadership from the Leader of the Opposition on this issue is well overdue. I would like to see him provide such leadership and indicate support for this bill and the previous bill, as these bills can play a critical role in removing the discrimination against same-sex couples and their children in Commonwealth law. I call on the Leader of the Opposition to uphold the values that underpin these pieces of legislation.

The purpose of this bill is to eliminate discrimination under a range of Commonwealth laws in the manner that I have described. In detail, as previous speakers have adverted to, the bill will amend 68 Commonwealth laws to achieve this purpose. It does so by altering a number of definitions across a range of laws. Firstly, the bill before the House will introduce across these laws a new definition of a child. The new definition will include a child who is the product of a relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child. The bill also includes a new definition of de facto partnerships, which will become the standard for most Commonwealth laws. Under this definition the couple will be taken to be in a de facto relationship if they have a relationship as a couple and live together on a genuine domestic basis, having regard to a number of circumstances included within the definition. Registration of a relationship on a prescribed state or territory register will also be recognised as proof that a couple is in a de facto relationship. Currently Tasmania, Victoria and the ACT have such schemes, and I encourage other states to look at adopting similar practices.

The bill expands the definitions of stepchild and step-parent to include a child of an opposite-sex or same-sex de facto partner by a former relationship and to include a same-sex or opposite-sex de facto partner of a parent of a child by a former relationship. The bill also removes some laws that treat people in the same circumstances differently depending on whether they are married or not. These amendments to the definitions contained within the Acts Interpretation Act will help remove the discrimination of same-sex couples and their children that currently resides in a number of laws of the Commonwealth. Similarly, in legislation such as the Social Security Act, which these definitions under the Acts Interpretation Act do not provide for, relevant amendments are made to ensure that same-sex couples and their families are recognised.

The amendment of legal definitions may not appear to be much; indeed, at first glance it appears to be just a number of technical amendments. However, the provisions contained within this bill can make a real difference to many families across this country. I would like to take the opportunity to outline some of the benefits that may now accrue to same-sex couples, depending upon their circumstances, and their children following the passage of this bill, to give concrete examples of some of the discrimination that will be removed.

Prior to the introduction of this bill, same-sex couples were not eligible for some payments because a same-sex partner did not qualify as a ‘partner’ under social security legislation. This meant that, for the purposes of some entitlements and benefits under social security legislation, same-sex couples were not recognised. This bill will correct that. Prior to this bill, a same-sex partner of a veteran could not receive benefits such as the war widow or war widower pensions, income support supplement, bereavement benefits, funeral benefits, gold repatriation health card or military compensation. Subject to the particular circumstances of a veteran, this bill will change the arrangements to remove discrimination. In relation to Medicare, prior to this bill a same-sex family had to spend more to access general and extended safety net subsidies. They also had to spend more to access the PBS safety net subsidies. Again, this bill corrects these injustices and deficiencies.

I conclude by reiterating how proud I am to be part of a government that is finally putting an end to discrimination suffered by many thousands of same-sex couples and their families. I urge the opposition to support the legislation and ensure that this discrimination is removed as promptly as possible.

Annette Ellis (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

It is indeed with pride and pleasure that I rise this evening to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. It has been said before, and I need to say again, that it is a matter of shame for both sides of this parliament that it has taken so long for this to happen. It is hard to believe that it is almost 20 years since sexual preference was added as an additional ground of discrimination under the Human Rights and Equal Opportunity Commission regulations. More recently, in 1997, the Senate Legal and Constitutional Affairs References Committee identified discrimination in Commonwealth laws and programs that deal with tax and superannuation benefits.

This long-awaited and welcome bill will amend 68 Commonwealth laws. It has taken the work and dedication of 19 government departments and the public servants within those departments who have been involved in its drafting. I am extremely proud that we have a government that is prepared to remove discrimination against same-sex couples in the way reflected in this legislation. The Australian Human Rights Commissioner, Mr Graeme Innes, has welcomed wholeheartedly the introduction of the bill. The Association of Superannuation Funds of Australia, ASFA, has given in principle support for superannuation and tax legislation which does not discriminate against partners of either gender.

As I said, approximately 20 years ago sexual preference became a ground of discrimination under the regulations of the Human Rights and Equal Opportunity Commission, yet federal legislation continued to discriminate against sexual preference. In 2004 the UN Human Rights Committee found that Australia was in breach of a prohibition on discrimination in the International Covenant on Civil and Political Rights because the Veterans’ Entitlements Act denied a person a pension on the basis of sexual orientation. This bill will remove discrimination not only against same-sex couples but also against their families and, most notably, their children.

It is fair to ask how same-sex couples are discriminated against. There is a long list of areas of discrimination, and previous speakers have referred to some of them. Same-sex couples and their families get fewer leave entitlements, including less carers leave to look after a sick partner; less workers compensation; fewer tax concessions; fewer veterans entitlements, such as pensions and concessions; fewer healthcare subsidies; less access to the Medicare and PBS safety nets; and less superannuation. They also pay more for residential aged care than do opposite-sex couples in the same circumstances. The amendments will allow same-sex couples equal access to these entitlements.

At least 20,000 couples experience systemic discrimination on a daily basis throughout our community. That is a very large number of people who, just as a matter of course through their daily activities, suffer discrimination. Same-sex couples are denied basic financial and work related entitlements because they are excluded from the definitions of a couple in federal laws. Federal laws generally define a ‘partner’, a ‘member of a couple’, a ‘spouse’ or a ‘de facto spouse’ as a person of the opposite sex. The bill will change these definitions to include same-sex couples. The bill will also formally recognise children of same-sex couples, with the general approach taken that it will include a child who is the product of a relationship where one partner is linked biologically to the child or is the birth mother of the child. Presently, there are inconsistencies in the recognition of relationships across states and territories. This legislation will provide national uniformity to the recognition of same-sex relationships and therefore provide certainty.

The legislation will remove discrimination in relation to access to superannuation benefits. Under the current law, a surviving member of a same-sex couple does not meet the definition of either ‘spouse’ or ‘dependant’ and therefore cannot receive the deceased partner’s lump sum or the pension benefits paid by most of the Commonwealth’s civilian or military superannuation schemes. Payment of superannuation benefits to children is another point. At present, dependent children of a deceased partner have access to benefits but children of a surviving partner do not. The legislation will, thankfully, change this. It is particularly important where the surviving partner may be incapacitated or terminally ill. Those circumstances are well known to many of us in the House, unfortunately. Then there is the question of taxation of death benefits. This legislation will allow same-sex partners to receive benefits tax free, as do current opposite-sex partners. With respect to the ability to contribute to superannuation, under the current law a member of an opposite-sex couple may make a tax deductible contribution to their spouse’s superannuation account. Amendments in the bill that will define ‘spouse’ for the purpose of superannuation will allow same-sex couples to also make these contributions.

Over the years that I have had the privilege of being in this place, you often hear in debates of this kind people saying, ‘I know someone who knows someone who has had that experience’ or ‘I have had that experience’ or ‘I understand how they feel because my best friend has had that experience.’ We hear those sorts of references often, and I have to be tempted to go down that path now because, like many other people in this place, I have very close friends who are in same-sex relationships. These are people in the community who have very longstanding, highly regarded relationships and for whom I have a very high regard. I have always been embarrassed that our community and this parliament have never found it possible to remove the discrimination that these people have to suffer through their normal, everyday lives in workplaces or wherever. I am extremely pleased that we have this piece of legislation before the House. I sincerely hope and trust that those on the other side will find themselves in a position to give us the support to get this legislation through.

This is very good legislation, it is very important legislation and it is very welcome legislation. It is shameful that it has taken us so long to get to this point in our history. Blatant discrimination based on whom people have a relationship with or whom they love is the most misunderstood direction I could ever wish to see a society go in. I frankly do not understand why we have not been able to do this before. I am very proud to be part of a government that is presenting this legislation. I want to put on the record my absolute, heartfelt commendation for the work of the Attorney-General, the member for Barton, and for his leadership on this issue. I know that it has not been easy. I know that the work put in by members of the Public Service, in those 19 departments that I have referred to, has been long and hard. They are to be commended and the Attorney-General is to be commended for the leadership that he has provided in bringing this legislation to the House. I congratulate him, I congratulate everyone within those departments, and I sincerely look forward to the passage of this very important and, I believe, historic legislation through the parliament.

Kerry Rea (Bonner, Australian Labor Party) Share this | Link to this | Hansard source

It is with great pride that I rise tonight to support the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. There have been many comments made about this bill both inside and outside this chamber, but I think what is really important to note is that this legislation is not about sexuality or sexual preference. It is about children. It is about the family values that we all share within this chamber and within our broader communities. It seeks to uphold those values by acknowledging the rights of all children, regardless of where they live in this country and regardless of the relationship of their parents.

This legislation acknowledges that children and adults have the right to live in a secure and loving domestic arrangement. They have the right to enjoy the comfort and security of a place that they can call home, where they grow and are nurtured by people who care for and love them. I do not think that anyone can disagree with that basic right for our children, and I do not think anyone can disagree that it is a basic rights for adults to live in a caring and loving relationship within their own home.

Families come in all shapes and sizes; we know that. I am one of seven children and our parents were married. I have many friends and family members who live in a number of different relationships. It is not a measure of the love that people feel for the children that they care for. There is no measure for a relationship other than one where people are tied together emotionally. Marriage is not the only relationship in which children can grow up and be nurtured, and it is not the only way in which adults can live together in a fulfilling and satisfying relationship.

Of course, the nuclear family of working dads and stay-at-home mums is one that is cherished by many, but it is in fact a phenomenon of a very small part of the 20th century. It has been perceived as the norm for a very short period of time. Relationships of all kinds have existed over the years. They have changed through Western society. They exist in different forms in very different religious and cultural societies. I think we need to acknowledge that the notion of family is not one size fits all; it is many sizes. What is important is that the rights of people to enjoy the benefits of that relationship are recognised by law.

I am very pleased that our laws and our attitudes have changed. As a woman, I have benefited as a result of changing attitudes in our society which have resulted in changes in laws. This has enabled me to pursue a career that I find satisfying and interesting, it has allowed me to be financially independent, and it has allowed me the great fulfilment of having children and pursuing my career at the same time. It was not so long ago that these were hard-fought rights. Many, many women campaigned for many, many years for laws that reflect my right as a woman to enjoy all of those relationships and, as a result, to have what I believe is a better quality of life than many women who have preceded me. I am also proud to support this bill because it acknowledges the support that the Australian community has always given to human rights.

In my capacity as the Chair of the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, I am pleased that we are once again ending what has been unfair and necessary discrimination towards same-sex couples and their children in our community. It has taken a long time to acknowledge that we as a country, whilst appearing to be progressive and liberal, have had some hard fought battles to acknowledge the individual human rights of many within our society. It was not so long ago that Indigenous people were not even allowed the right to vote. It was not so long ago that many people with disabilities did not enjoy access to the services and opportunities that they do now, because we did not acknowledge their individual rights and support them in their endeavours to lead a better quality of life.

That is why I am so pleased that this government has acted on the inquiry that was conducted by the Human Rights and Equal Opportunity Commission. That inquiry investigated and eventually acknowledged that there were many financial and work related entitlements and benefits that people in opposite-sex relationships take for granted whereas people in same-sex relationships were clearly discriminated against. Most importantly, that inquiry found that it was not just the adults who are involved in those relationships but also their children who are discriminated against. I appeal once again to any Australian who supports the right of a child to a loving and nurturing relationship to support this legislation, because many children in same-sex relationships live in domestic circumstances that are much more nourishing, loving and caring than those of many opposite-sex relationships. Unfortunately, it is a fact of life that it is not the legal status of your relationship that defines your ability to care for your children and for your partner; it is in fact what an individual brings to that relationship.

It is important therefore that we introduce laws that allow everyone who has the desire and the capacity to share their life with someone to bring children into that relationship if they so choose. We as a society can only benefit by more loving parents, not simply a stereotype of what we think should be the case. That is why I would like to take this opportunity to congratulate the Attorney-General for ending these areas of discrimination so quickly on being elected to public office. I think it is a clear sign both of the individual fortitude of the Attorney-General and indeed the support and aspirations of the whole Labor government that these laws have come into place within the first 12 months of our election to office. It acknowledges and builds on that great Labor tradition, which has always been about equality, about fairness and about ending those social and cultural obstacles which deny individuals and, indeed, in this case, their families the opportunities that are enjoyed by some but not all.

These amendments build on the previous legislation introduced by the Attorney-General regarding superannuation entitlements. What is interesting is that the essential aspects of this legislation actually build on a very simple concept. It is simply, when you boil it down and look at the essence of this discrimination and these laws, about the definition of words. The legislation says that a ‘spouse’ and a ‘child’ are recognised regardless of whether you are in a same-sex or an opposite-sex relationship. These are two words that many of us simply acknowledge as describing the relationships that we individually have with others or that our whole social framework is built on. We now can define those words more broadly to acknowledge all families in this country.

There are also close relationships that are defined by the words ‘stepchild’, ‘widow’ and ‘widower’—once simply definitions that could only apply in the case where two people were married. We all have many examples of people who live in de facto relationships and people in de facto same-sex relationships who clearly have relationships where those words come into play. They clearly have stepchildren, and when one of the partners dies we can only acknowledge the other as a widow or widower because we have seen for many years the strength of their relationship and the close connection and bond that their relationship enjoyed over the many years that they were together.

To acknowledge the grieving of the death of a partner by considering them as a widow or widower does not change the fabric of our society; it simply gives compassion and understanding to the living partner’s grief. A stepchild, a child who is not the biological child of one partner but has in fact grown up in that family unit, has built those very close bonds that occur in a domestic relationship when you live for many years in a house together and indeed occupy the same roles and relationships as a parent and child. The fact that they cannot be considered a stepchild until this legislation comes into force again does not diminish the nature of existing relationships; it simply adds a broader acknowledgement that stepchildren are part of all loving relationships not just married ones.

This bill amends 68 Commonwealth laws, and 19 departments were involved in drafting those laws. This alone must demonstrate to the Australian community the systematic discrimination that Australians in same-sex relationships and their children have endured for so long. The fact that 68 laws are to be amended only serves to indicate and emphasise how important this bill is. It demonstrates how significant and widespread the discrimination against same-sex relationships has been throughout our history. It means that so many of the financial benefits that have been enjoyed by those in opposite-sex relationships are now recognised for those in same-sex relationships.

The laws remove discrimination in many areas. These are areas in which those of us who are married or involved in opposite-sex relationships take our rights for granted: social security, taxation, Medicare, veterans affairs, workers compensation and educational assistance. These fundamentals rights that we take for granted have only now, in the year 2008, been extended to acknowledge the number of same-sex relationships in Australia at the moment. It is in fact incomprehensible to believe that, as the previous speaker said, simply because of who you love, you are not entitled to certain benefits under things like the taxation system and the health system through Medicare. It is incomprehensible to think that veterans, who have done so much and contributed so much to the freedom and the liberal minded policies that we have in this country, can have partners who cannot be acknowledged because they do not happen to fit into the current definition.

It is incomprehensible that it has taken us so long. It has been 20 years since discrimination on the ground of sexual preference was added as an additional ground of discrimination in the Human Rights and Equal Opportunity Commission Regulations. It has taken that long for a child of a same-sex relationship to enjoy the same freedom, the same rights and the same benefits as those who have grown up with parents in an opposite-sex relationship.

I understand that this is a sensitive issue and that many people will find it hard to comprehend and understand the need for these laws. I appreciate that people have different beliefs and different attitudes—in fact, it is the strength of our democracy that we are allowed to express those differences—but what is important about this legislation and what is important about my privilege to be able to stand in this place to support it is that this is a time that we must act as decision makers. It is a time when we do not necessarily listen to the chorus out there. We are acting as decision makers in this national parliament to acknowledge that discrimination is wrong and that there are people within our own country who have been denied basic human rights. These people deserve to enjoy not just the privileges but, indeed, the very basic benefits that so many other families in this country enjoy. It is time for us to act—to support this legislation and show that, as a government and as a parliament, we want this country to progress and prosper and that we want everyone to enjoy that privilege.

Melissa Parke (Fremantle, Australian Labor Party) Share this | Link to this | Hansard source

I speak in support of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. This bill is a positive and overdue step towards ensuring equality in Australian society. It eliminates discrimination against same-sex couples and the children of same-sex relationships in a wide range of Commonwealth laws, including taxation, social security, health, aged care, veterans entitlements, workers compensation, immigration and other areas. I welcome the fact that this bill follows so quickly upon the heels of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which passed the House of Representatives on 4 June 2008 and which is currently the subject of an inquiry by the Senate Standing Committee on Legal and Constitutional Affairs.

I would like to congratulate the Attorney-General, his department and his staff for the diligence and attention to detail with which they have approached this highly complex and sensitive area. I would also like to pay tribute to the careful work of the Human Rights and Equal Opportunity Commission, HREOC—now called the Australian Human Rights Commission—whose report in 2007 entitled Same-sex: same entitlements provided much of the evidence and analysis underlying the bills presently before the House. Upon coming to office the Attorney-General commissioned a whole-of-government audit of Commonwealth legislation, which not only confirmed HREOC’s findings in relation to 58 federal laws but identified further discrimination in a range of other areas, such as administrative and evidence laws.

I would like to refer to a couple of submissions made to the HREOC inquiry that have also been highlighted by other members just now in their excellent contributions to this debate. In one submission a gay doctor described his situation as being that of ‘a first-class taxpayer but a second-class citizen.’ In another submission, a same-sex couple from Adelaide 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.

HREOC found that at least 20,000 couples in Australia experienced systematic discrimination on a daily basis—whether it is not being guaranteed the right to take carers leave to look after a sick partner, being denied a wide range of tax concessions available to opposite-sex couples, being denied access to superannuation and workers compensation benefits available to dependants of opposite-sex partners or paying more than opposite-sex couples to enter an aged-care facility.

It is incorrect to regard this legislation—as some have—as undermining the right or entitlements of anyone else in Australia, as if the wider availability of equitable treatment before the law will somehow dilute the rights that many already have. This legislation in no way lessons or reduces the rights or entitlements enjoyed by many in our society, nor does it confer any special rights. All it does is put same-sex couples on an equal footing to opposite-sex couples.

It is fitting that these bills are presented to the parliament in the year of the 60th anniversary of the Universal Declaration of Human Rights, which provides for equality of all people before the law and entitlement to protection from discrimination. Australia played a key role in the drafting of the universal declaration, and an Australian, Doc Evatt, was the President of the General Assembly when the declaration was adopted by the General Assembly in December 1948. We can be justifiably proud of Australia’s contribution to the development of the international human rights system, but there is no point signing up to international standards and then ignoring them at home.

HREOC found that the discrimination that currently exists in Commonwealth laws is a serious and fundamental breach of Australia’s international legal obligations under human rights law, in particular the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Article 26 of the International Covenant on Civil and Political Rights, the ICCPR, states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground …

In 1999, an Australian by the name of Edward Young took a case to the UN Human Rights Committee alleging a violation by Australia of article 26 because of discrimination in Commonwealth laws that denied him the right to receive a veterans pension because he was gay. Mr Young had been in a 38-year relationship with his partner, who was a war veteran, for whom he had cared in the last years of his life. When his partner died at the age of 73, Mr Young applied for a veterans pension under the Veterans’ Entitlements Act 1986. His pension application was rejected because a same-sex partner does not qualify as a veteran’s dependant, even though an opposite-sex de facto partner does qualify.

The Human Rights Committee found no reasonable or objective reasons for denying Mr Young the pension. It concluded that the distinction between the treatment of unmarried opposite-sex couples and same-sex couples under the Veterans’ Entitlements Act was discrimination in breach of article 26 of the ICCPR. Some seven months after the response deadline, the Howard government replied that it did not accept the Human Rights Committee’s finding that Australia had violated article 26 of the ICCPR, and it rejected the committee’s conclusion that Mr Young was entitled to an effective remedy. The decision was buried. The UN committee’s decision was not publicised by media release in Australia nor was a copy or summary of the decision available on any government department’s website. With this bill, the Rudd Labor government is saying to Edward Young, and to all those who find themselves in similar situations, that this government respects the undertakings it has made in international law and will ensure that such injustices are not perpetuated.

Australia does not have a bill or charter of rights—unlike Canada, New Zealand, the United Kingdom, the United States and other nations within the developed world. Perhaps, because of this, the meaning and significance of inequality and what it means to deny it is not as scrutinised here as it should be. As I have stated previously in this place, I look forward to the national consultation on a charter of rights that this government intends to undertake.

As HREOC found, it is not just Australia’s same-sex couples who suffer discrimination in breach of international human rights standards; it is their children too. Approximately 20 per cent of lesbian couples and five per cent of gay couples in Australia are raising children. The lives of children are inextricably bound up with the lives of their parents. Therefore, the exclusion of same-sex parents from financial benefits and entitlements will inevitably have an impact on their children. Article 2(2) of the Convention on the Rights of the Child provides that:

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

The UN Committee on the Rights of the Child has stated that discrimination on the basis of sexual orientation is discrimination for the purpose of article 2, and that direct and indirect discrimination against children, their parents or legal guardians will breach article 2 of the convention. In evidence to HREOC’s inquiry, Mr Philip Lynch, Director of the Human Rights Resource Law Centre, submitted that discrimination against same-sex parents or guardians of a child which has an adverse impact on the child—for example, parents unable to access a particular financial entitlement which would have been of benefit to the parents and, by extension, the child—directly engages and violates article 2(2) of the Convention on the Rights of the Child.

The implications for same-sex couples and their children of our discriminatory laws have made me think about the types of things I have seen and heard in my career as a lawyer with the United Nations, as a legal academic, and as someone who has practised law in Australia. I have seen what happens when equality is denied, suppressed and ignored: women denied education because they are women; refugees stranded for years in the inhumane conditions of some refugee camps simply because they are seen as not belonging; women and children trafficked as sexual property; men, women and children with AIDS denied housing, employment, education and life-saving medications; and Indigenous Australians living an average of 17 years less than non-Indigenous Australians.

Some might ask what someone being denied a veterans pension or a family benefit because they are gay or lesbian has to do with women in developing countries not being educated, refugees suffering in camps, AIDS discrimination, human trafficking or Aboriginal disadvantage. Actually, it has everything to do with these because, at their core, all of these examples share a common trait: they happen because inequality is allowed to occur and is allowed to persist, and, when not taken seriously, such inequality becomes a way of being that, once normalised, soon permits the previously unimaginable. Fundamental inequality—and nothing is more fundamental than the equal enjoyment of basic human rights—hurts all of us, even those who believe we have everything. To the extent that we allow one person or group of people to be disenfranchised socially or legally, to be treated as inferior, to be silenced through prejudice and ignorance, we prop up a system of inequality that makes it very difficult for any of us, in any context, to participate fully as citizens, and it denies our sense of common humanity.

During its inquiry, HREOC heard from a woman who told of a lesbian friend who had been denied the right to farewell her dying partner. She said:

One of our lesbian friends lay ill and dying in her hospital bed.  When it came time for her to die the hospital staff prevented her partner from entering her hospital room and sitting with her at the end of her life because she was not the ‘spouse’.

Our friend died, alone.  Her partner sat outside in the corridor prevented from being with her.  She continues to suffer great distress that her life-time partner died without her comfort and without knowing she was there with her.

Another contributor to the HREOC inquiry wrote:

There is evidence that hate crimes against gay men and lesbians result from the systematic discrimination entrenched in the law.  When gays and lesbians are determined to be unequal at law, then homophobes assume the privilege of vigilante justice by bashing and attacking gays and their organizations.

Systematic discrimination was found to be evident in the 68 federal laws which this bill seeks to amend, as well as in other laws which will be amended by separate legislation. Equality, if it is to counter such discrimination, must also be systematic, hence the very comprehensive package of legislation put forward by the government. While acknowledging that the fight against discrimination cannot be waged solely through state and federal laws for the very reason that discrimination is hardest to dislodge from our hearts and minds, this nevertheless, to the extent of this bill’s application, represents a great step forward for ordinary Australians in same-sex relationships and their children. And it is a great step forward for all Australians because a society in which equality is the pre-eminent right is, at its base, a good and fair society. With this bill the Rudd Labor government is making the necessary and overdue changes to remove inequitable discrimination against same-sex couples and their children. In a country that prides itself on egalitarianism and on a fair go, this is legislation that is very much in the spirit of Australia. We are all richer for it.

Ms Catherine King (Ballarat, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to strongly support the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. This bill follows Labor’s election commitment to remove discrimination for same-sex couples from the Commonwealth system, and it has been a longstanding commitment. I am very proud to be part of a government that, in its first nine months, saw this as one of the issues to be brought forward in its first tranche of legislation.

The government is absolutely committed to amending Commonwealth legislation that discriminates against same-sex couples and their children. Current Commonwealth laws do not properly reflect the views and values of the Australian community. Current Commonwealth laws are outdated, and both sides of this House have taken too long to act against that discrimination. At present, some laws within the Commonwealth system reflect a view that we should somehow treat same-sex couples differently. Almost a quarter of a century after it was determined to be unlawful to discriminate against a person on the basis of sexual preference, the Commonwealth system is now only just catching up.

Since coming to office, the Rudd government has made significant inroads on this important issue. Despite making many promises to the gay and lesbian community, the previous government never ever acted. There was a lot of rhetoric and a lot of promises to act, but the previous government never actually introduced legislation to make good on their promises. Unlike the previous government, we have put this issue at the forefront of our legislative agenda because the federal government should be, across this nation, a leader on antidiscrimination reform. We have lagged behind for far too long.

On coming to office, we commissioned a whole-of-government audit of Commonwealth law to address the discrimination against Australians in same-sex relationships and their children with a view to removing that discrimination. Following this, in May this year the Attorney-General introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Law—Superannuation) Bill 2008. That bill was first introduced by the Rudd government to remove the very significant discrimination that exists within our superannuation system. Unfortunately, those members opposite followed through on threats to delay the passage of that legislation by using the final days of their Senate majority to refer the bill to a Senate committee. That bill now sits with the Senate committee until next month. The bill before the House today is the second stage of the Rudd government’s reform to remove same-sex discrimination from the Commonwealth system. It reforms many parts of our Commonwealth system to remove discrimination against same-sex couples and their children. I urge those opposite not to again stall the legislation or play the political games with this second stage of reforms that they did with the first. Removing discrimination from our Commonwealth system should be something that we all embrace. It should not be delayed and it is critical that passage of this bill through both chambers is achieved during the spring sitting.

The bill is strongly supported by many domestic and international groups. The Human Rights Equal Opportunity Commission released its report Same-sex: same entitlements in May 2007. The first line of the report reads:

At least 20,000 couples in Australia experience systematic discrimination on a daily basis.

That is 20,000 couples who we have accepted will be facing discrimination on a daily basis. That is the issue that has been ignored for far too long. I would like to read an extract from the HREOC report. It states:

It is not just Australia’s same-sex couples who suffer discrimination; it is their children too. Approximately 20% of lesbian couples and 5% of gay couples in Australia are raising children.

That is the reality of the sorts of families we have within our community today.

The financial disadvantages imposed on same-sex parents will inevitably have an impact on their children.

This discrimination breaches human rights. And it can be stopped. All it takes is a few changes to the definitions in some federal laws.

That is exactly what this bill does.

Following the election of the Rudd government, the Attorney-General, Robert McClelland, commissioned a whole-of-government audit of Commonwealth legislation. The audit reiterated the statements in the report released by the Human Rights Equal Opportunity Commission. The report recognised the dire need for major reform to remove the discrimination that exists in the Commonwealth system. This bill also follows on from the United Nations Human Rights Committee that in 2004 found Australia to be in breach of the prohibition on discrimination in the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee recognised discrimination in the Australian Commonwealth system because under the Veterans’ Entitlements Act veterans were denied a pension based on their sexual preference. The case of Edward Young has been canvassed fairly extensively throughout many of the other members’ speeches, so I will not endeavour to go into that now, but it is a discrimination that brought shame on our system.

The bill addresses the core anomalies within our system that currently discriminate again same-sex couples. The bill moves to reform those key areas that have been identified by the United Nations Human Rights Committee, the Human Rights Equal Opportunity Commission and the whole-of-government audit commissioned by the Attorney-General, and which, most importantly, have now been recognised by this government. This bill will remove discrimination to ensure that same-sex couples and their children will be able to receive equal treatment under the law. The same treatment cannot exist under the current Commonwealth laws, which are arbitrary and discriminatory. This bill will amend some 68 laws and will reform a significant number of areas of Commonwealth responsibility including taxation, social security, health, aged care, veterans entitlements, workers compensation and immigration. The bill will amend these laws and will reform our current system to properly remove discrimination against same-sex couples and their families.

Part of achieving such a major change in our Commonwealth system is to redefine our literal interpretation of words. The bill will amend our system to recognise a child in a same-sex family. The bill will recognise a child as being a child that is the product of a relationship—whether the child is linked biologically to one partner or where one parent is the birth mother of the child. The Rudd government is applying this proper definition to guarantee equal treatment for same-sex families.

Constituents throughout my electorate have raised their concerns with me on the issue of discrimination against same-sex couples on a number of occasions. Many same-sex couples in my electorate have raised legitimate concerns about why their children are treated differently in the eyes of the law depending on the choice of gender of their parents’ partner. These are legitimate concerns, and this bill addresses those issues raised by people in my electorate.

This bill will redefine the term ‘de facto partner’ to equally recognise same-sex de facto couples. A major change within this bill is the way in which we recognise relationships. Couples may now register their relationship with their state or territory register—whether it be an opposite-sex or a same-sex couple—to properly recognise their de facto relationship. This will reduce the burden that couples face when dealing between different levels of government.

As a result, couples that satisfy the requirements of their state or territory government will now be automatically recognised by the Commonwealth government. This system already exists in my home state of Victoria, and this practice will provide much incentive to those wishing to officially register their relationships across Australia.

I would like to briefly touch on the issue of interdependent relationships. This is an issue that has been of particular concern to constituents in my electorate. The reforms outlined in this bill today set out to remove discrimination against same-sex couples and their families. Some members opposite have been very vocal in their desire to recognise interdependent relationships. The way the Commonwealth government views interdependent relationships is something that I and my colleagues are closely monitoring. If interdependent relationships were to be recognised through this bill, it could result in them being worse off. Interdependent relationship can be difficult to define, and the government may closely consider some forms of interdependent relationships into the future.

The bill goes even further to address discrimination that currently exists within other areas of our Commonwealth system. In some situations some laws give people differing treatment, depending on whether or not they are ‘married’ under the definition in the Marriage Act. This bill addresses this discrimination and recognises both opposite-sex couples and same-sex de facto relationships. As stated earlier, almost a quarter of a century after it was determined to be unlawful to discriminate against a person on the basis of marriage, the Commonwealth laws are only now catching up. I want to say a bit about marriage a little later in my speech.

We have also now addressed the discrimination that exists in relation to stepchildren, step-parents, widowers and widows. The bill will now redefine those terms to go beyond recognising only those cases where persons have been married to another person. Once again, this is another reflection of the expectation of values in today’s society and the reality of the many different family structures we have in our community.

Many members opposite have raised the issue of marriage in relation to this bill, and I want to say a bit about that. We well and truly stated our position on marriage when we supported the changes to the Marriage Act that the then government brought in. Marriage means a commitment between a man and a woman to the exclusion of all others. Some would say a marriage is ‘never to be torn asunder’, but obviously these things happen to people as well. Despite some of the speeches on this bill from those opposite—although not many have chosen to speak on it—there is absolutely nothing in the bill that undermines anything in the Marriage Act, nor does it undermine the principles of marriage and our understanding of marriage. There is nothing in this bill that diminishes the notion of marriage and there is certainly nothing in this bill that threatens my marriage or anybody else’s marriage. This bill should not be viewed with the fear we have had from some of those opposite.

By supporting this bill, I am proud to be supporting Labor’s election commitment to remove discrimination against people in same-sex relationships. At the same time, we continue to recognise the importance of marriage and the current definition of marriage under the Marriage Act. The current law, as it stands, in relation to same-sex and de facto relationships is discriminatory, arcane and very arbitrary in the way it is applied across laws and across the different states and territories. If we are to be a modern society then we need to ensure that our laws keep pace with changes in our society.

Just as we amend laws to keep up with economic progress, so must we amend laws to keep up with the community’s understanding of our social progress. The reality is that there are many configurations within relationships, and there have been for quite some time. It is not new that people are forming same-sex relationships. It is disappointing that it has taken until 2008 to get this right but, as the saying goes, I guess it is better late than never. It is imperative that our laws reflect the culture that we see around us. It is even more imperative that everyone is recognised before the law. This is particularly important in the case of children, who do not have an adult voice to lobby for what is rightfully theirs. A humane society is one which acknowledges all people—all taxpayers—and represents them all equally.

I am mindful that a number of members opposite are supportive of the removal of discrimination in this area. I certainly want to acknowledge the contribution made by those members—particularly the member for Kooyong—who have been fighting within their own party on these issues for some time. I am very pleased that they agree with the Rudd government on the action that is being taken and have acknowledged publicly that action has taken far too long.

As I stated earlier, this issue should be not used for political gain. I urge members opposite to stand up for their beliefs on this issue and to stand up for this bill. I say to those opposite that it is imperative that this bill pass through the House without delay. This issue has been a sore point for many same-sex couples for a long time. This bill has broad support across the nation and will go a long way towards showing that our nation’s leaders, across the Commonwealth, recognise and will amend the discrimination that exists in our national system.

The bill reflects that Australian families comprise many different structures. We need a legal system and a financial system that do not discriminate between same-sex couples and opposite-sex couples. The Rudd government needs to continue to reform our Commonwealth system to better reflect the realities that exist in our community and treat people equally. This bill works towards reflecting these realities. I am very proud to be part of a government that has done exactly what it said it was going to do in the election campaign. It said that it was going to end discrimination against same-sex couples in the Commonwealth system. This is the second piece of legislation that we have introduced in the nine months that we have been in office. I again urge members opposite not to delay the passage of this bill. I commend the bill to the House.

Mrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on this issue for the second time, in the sense that I have spoken on one of the companion bills in the area of same-sex relationships. There are some important points that need to be made about the attitude that the coalition took when in government to the need to remedy those areas of discrimination that needed to be dealt with, in particular with regard to financial aspects, and about dealing with the shift that this government has brought to the whole area.

When the coalition were in government we took the attitude that, where there was a need to remedy injustices, there was a need to set a standard by which one could make an analogy in order to legislate in a fair and just way. The coalition took a very strong stand that, were we to recognise same-sex relationships, it should be done on the same basis that we would recognise interdependent relationships. In his second reading speech on this bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, the minister said: ‘The bill does not recognise interdependent relationships.’ We took the attitude that, where there were, for instance, a brother and a sister who were financially dependent upon one another, there ought to be all sorts of alterations to the law that would allow superannuation to pass from one to the other, for instance, and many other issues that related to financial security that were equally sought by people in a same-sex relationship. The test that we applied was one of financial dependency, and it completely ignored the question of any sexual relationship. It was one that related to the financial interdependency of the relationship.

De facto relationships, which are acknowledged already in so many pieces of legislation, have always been determined on the basis of being ‘marriage-like’—in other words, a man and a woman living together in a relationship similar to that of a marriage. The current Prime Minister, Mr Rudd, and the current opposition made the firm statement that we were both committed to the sanctity of marriage and that marriage was to be held up above and beyond the concepts of de facto or same-sex relationships. There was an undertaking given by the Prime Minister of the day that marriage was in a privileged—or discriminatory—position.

I unashamedly believe that there is a need to discriminate in favour of marriage as the basis of the formation of family relationships within our community. That is not to say that there are not children who are born into very stable de facto relationships—indeed, if memory serves me correctly, about a third of children in this country are born into de facto relationships outside marriage. Nonetheless, both sides of this House have upheld marriage as the preferred basis for the establishment of the family unit and therefore have upheld discrimination in favour of it. Indeed, if I recall, we passed legislation that inserted into the Marriage Act that only a man and a woman could be married.

Accordingly, when I looked at this legislation, and at the 68 acts that are to be amended, I was somewhat shocked to find that, in the area of migration law, it is proposed by the government that this government will recognise marriages between same-sex couples that have been performed overseas. They will be recognised for the purpose of those people migrating to this country. It is not necessary for that amendment to be made in order for same-sex couples who are dependent on each other to obtain a visa and come to this country as migrants. So this is a deliberate act by this government to go against its undertaking that marriage would remain sacrosanct. Acknowledging overseas same-sex marriages is the thin end of the wedge to having them recognised in this country.

Because of the complexity of this package of bills, and because of the sorts of woolly words that are used by so many people who speak about it, we never actually get to the substance of what is being done to the fibre of our society by this package of bills. When I spoke previously, I pointed out the way in which the legislation relating to the Family Law Act in fact recognises a form of polygamy, which we are opposed to in this country. Under that act, if it goes ahead unamended—that means that the government does not accept the amendment that we are proposing—it will mean that a married couple and a spouse who leaves that marriage and sets up a de facto relationship, be it heterosexual or same-sex, will have the same rights before the Family Court. In other words, it recognises more than one spouse at a time—and there is no limit on the number of spouses you can have. There has been a move in this country by certain people within the Islamic faith that they would like to see polygamy recognised. We have staunchly opposed that, and ostensibly the government is opposed to it. And yet in its own legislation it proposes a situation that would allow the court to recognise a person who is married and a person who is in a de facto relationship, be it heterosexual or same-sex, having equal status before the court. That is polygamy. The amendment that we are proposing in the Senate will remedy that and will prevent that from being the case. It will be a test of the government to see whether or not it will do that.

Now I turn also to the Veterans’ Entitlements Act. Coming into this House soon will be the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Bill 2008. There is not a mention in the title of veterans’ affairs—not a single, solitary mention. And yet in schedule 2, called ‘Partner service pension’, the bill implements the budget measure that will remove a spouse service pension where the husband and wife are separated for 12 months. The spouse will automatically lose their pension. Where the veteran sets up in a de facto relationship, the spouse’s pension will automatically end. This was meant to save the government $77 million over four years. That is read down to $33.9 million because they estimate that those people will in fact move onto other forms of social security.

The point I made very strongly when I was shadow minister for veterans’ affairs was that we on this side believe in entitlements for veterans that are not social security. They are distinct. Indeed, they are the result of a contract between us and a veteran, who is prepared to serve their country and to lay down their life for the country, to be entitled to certain things, in that we promised to look after them for the rest of their life.

The government over there, and Mr Rudd in particular, promised veterans that they would never lessen their entitlements. And yet in the budget papers in two instances he did. He made the age for a partner service pension rise from 50 years to 58.5 years for a woman and 60 years for a man. In other words, in a single step, the entitlement at 50 years is moved up to 58.5. When criticised, the minister gives two responses. He says, firstly, ‘Not too many people will be covered or affected by this, so it doesn’t matter.’ Sorry, it does. One person who is affected matters. Secondly, he says, ‘Well, that brings it in line with social security.’ In other words, entitlements are being morphed into social security payments. There are many on that side of the House and within the bureaucracy who would like to see Veterans’ Affairs as a department disappear and be merged into social welfare.

We have made a strong commitment on this side. My commitment as shadow minister was very firm, and my commitment as the member for Mackellar remains very firm. Our commitment is to see that the department services veterans, that the term ‘veteran’ is to be honoured and revered, not to be disparaged, and that the entitlements that flow should continue to do so.

Now for the changes in this part of the bill that is going to come to us soon. It will enact that a spouse who is separated for 12 months or where the veteran moves into a de facto relationship will lose their pension, but it goes a bit further. It reads:

Part 3—Amendments commencing on the same-sex start day

Veterans’ Entitlements Act 1986

8 Paragraph 38(2AA)(a)

Omit “marriage-like”, substitute “de facto”.

Item 9 says:

Omit “when this subsection commenced”, substitute “on the same-sex start day”.

And on it goes. ‘Same-sex start day’ means:

… the day on which Schedule 15 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008

the bill we are debating now—

commences.

That is 1 July 2009. What does this mean? What does it translate into?

Suppose we have a husband and wife. Suppose they have been married for 30 years. Suppose the veteran has had a very troubled life, with post-traumatic stress disorder or whatever it is. Suppose they separate. They are perfectly happy to live separately but to maintain their marriage relationship. After 12 months, the spouse will lose all entitlement. I have a case of someone who has written to me to say that she is 61½ years old—she is not entitled to a social security pension—she has the obligations of a mortgage payment and she lives alone. She still has an involvement in the care of her husband; they just cannot live together. No, it is not an illness related separation; it is just one that cannot be sustained. But she will lose her entitlement.

Then we take another example. Suppose we have a veteran and spouse living together. Suddenly, for whatever reason, the veteran, who in this case happens to be male, moves into a same-sex relationship. The wife, to whom he is still married, will immediately lose her pension, and the same-sex partner will be entitled to apply for her pension. Is that what veterans expected? Is that what they thought protecting their entitlements meant? I think not.

It is the small print in all of this legislation that makes the difference. The difference in the approach that the coalition had when we were in government was that we made the analogy between interdependent couples, who have on their side the right to be entitled, but your second reading speech says the bill does not recognise interdependent relationships. We made that analogous with same-sex couples so that the question of sexual relations was not relevant to the financial justice that could be received. But, because of the way in which, in the definition of de facto, the sexual relationship becomes part of the definition, you have totally changed the ground—and yet nobody is prepared to talk about it. It is woolly words. It is all about: ‘There has to be fairness and equity.’ They are words that are full of emotional content, but when we seek to dig down to find out how it translates we see the problem with the legislation.

When the Prime Minister, Mr Rudd, said that marriage was sacrosanct and he wanted to protect it as the primary institution of the establishment of the family unit, he knew, when he was introducing this legislation, that what flows from the consequences of this legislation is totally at odds with his statements about upholding the integrity of marriage. Those who say that this legislation does not change or interfere with the Marriage Act are being less than honest, because it is the consequences of what flow that undermine that institution. On two counts, as I have said here tonight, this is occurring. Firstly, the changes to the Family Law Act will mean that we do have, de facto, polygamy—unless the government accepts our amendment with regard to the definitional clause. Secondly, with regard to veterans, we are going to see the situation where the partner of a veteran, be she a woman, can lose her entitlement and it can be taken up by someone in a same-sex relationship. Is that what veterans think this government has in line for them? I think not.

So when we talk about fairness and equity, I think it is also fair to consider the situation of people who enter into a marriage. And bear in mind the distinction between marriage and any other form of relationship: marriage is a public commitment—made in public with witnesses. A document is issued which proves that relationship is established. The production of that marriage certificate is evidence that the relationship exists. Any other relationship—any de facto relationship—is dependent upon an interpretation of a set of criteria, set out in these various pieces of legislation, which are not conclusive. They are to be considered by a judge making a decision. But he may consider other things, and it does not say which issue is more important than another. So it is a subjective judgement. And yet this government is prepared to put on the same footing a public commitment—witnessed, evidenced by a certificate—and a set of criteria which a court may have regard to. They are two entirely separate things. But, by doing this, you are undermining the commitment that the Prime Minister gave and agreed with the coalition: that marriage is sacrosanct and that marriage is to be discriminated in favour of.

That does not mean to say that there is not justice and fairness for other people in other relationships; it just means that we draw a line in the sand and say, ‘This is the basis of our society; this is the basis of the formation of family.’ To have these bills undermine that—a commitment to which has become a statement of falsity on the part of the government but on which the opposition is standing firm—would be to do a sincere injustice to people who enter into a marriage relationship and, in good faith, think that their rights will be protected, only to find that, after they have been in that relationship, the government of the day introduces legislation which undermines that primacy position. I would sincerely say to the government, ‘Pay heed when the Senate committee’s inquiry is handed down on 8 October.’ There will no doubt be competing findings from the government and opposition members. But I would say to the government: ‘Heed the evidence that is given. Much of it is very compelling. And give credence to the fact that there are those who simply say that this legislation has not had sufficient airing and that the public is being deceived by the manner in which you are bringing this suite of legislation into the parliament.’

Mark Butler (Port Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in favour of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. I also had the pleasure of speaking in favour of the first bill introduced by the Attorney-General as part of a suite of measures to address business that has been left unaddressed for far too long.

In the government’s view, the truest measure of an enlightened society is how it treats difference and diversity. The history of humanity, it is fair to say, has been pretty ordinary at that, and, for most of our history, we have seen awful discrimination on almost any grounds imaginable. I, and many others in the House and in the other place, have been lucky enough to live through an era which has seen the most significant advances in addressing that discrimination in the history of humanity. The fight against discrimination on the grounds of race, gender, religion, political belief and many other grounds has been very significant in recent decades and has achieved much. To be very clear: that fight, in almost every area possible, has not been won. Discrimination on all of those grounds and more continues to exist.

One ground of discrimination with which we are dealing tonight—discrimination on the grounds of sexual preference—remains a deep and continuing scar on our society and many other societies in the world. Over recent years and decades, the legal sanctions against sex between consenting adult males have disappeared in Australia, it is fair to say. But those advances are not locked down and in many other parts of the world remain very fragile advances indeed. Several jurisdictions in the United States continued, until very recently, to outlaw that sort of practice and continued the discrimination against gay and lesbian persons in their jurisdictions until the Supreme Court, in the case of Lawrence v Texas in 2003, invalidated all of those laws in several states of the United States of America on the grounds of the due process provision in the Bill of Rights. The focus here, and to some degree in the United States, has shifted from that fight, which has largely been won in Australia, to the treatment and status of same-sex relationships. Again, much of the heat that we have heard from the other side of the House comes in a reflected way from the—

Debate interrupted.