Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Sexuality and Gender Identity Discrimination Bill 2003 [2004], as the date suggests, was introduced in 2003, but in reality it has been around in one form or another since it was introduce by former Democrats senator Sid Spindler back in 1995, in the days when the Labor Party was in government, which is a long time ago. It was reintroduced and stood on the Notice Paper in my name for about five years before it was once again reintroduced in slightly amended form by former Democrats senator Brian Greig in 2003.

The legislation—and the principles underpinning it—have been around for a long time and, frankly, I do not think there would be a single senator in this place who would not be aware of the broad thrust of it. Indeed, when it was first tabled in 1995, it was referred to a Senate committee as part of a much wider national Senate inquiry into sexuality discrimination and the report of that inquiry was tabled in December 1997 by the Senate Legal and Constitutional References Committee, with wide-ranging recommendations going beyond the ambit of the legislation. It is a real tragedy that the simple principles underpinning this legislation and the clear recommendations contained in that report that was tabled nearly nine years ago have not been acted on except in a small number of areas.

This debate this afternoon is an opportunity to test both the Labor Party and particularly the coalition as to how far they have progressed, if at all, over that period of time. The legislation in the broad ensures the removal of ongoing inequities under federal law discriminating against gay, lesbian and bisexual people in areas such as superannuation, death benefits, taxation arrangements, income support, immigration access, industrial relations conditions, Public Service entitlements—including bodies such as the Federal Police and the Defence Force—veterans pensions, access to the Family Court, Medicare and welfare legislation, among other things. It simply seeks to ensure that people are no longer discriminated against on the grounds of their sexuality or their gender identity under Commonwealth law.

It should be noted that this principle has been supported publicly by a growing number of people within the federal Liberal Party. I certainly welcome those statements. The most notable example would be that of the Liberal member for the seat of Leichhardt in my state of Queensland, Mr Warren Entsch, who has been on the record a number of times, as far back as before the last federal election, supporting the removal of discrimination against people in same-sex relationships under federal law. He has been joined by a number of other Liberal colleagues in more recent times. The member for Wentworth, Mr Turnbull, has been on the record recently saying similar things. Indeed, our Prime Minister himself, Mr Howard, at the end of last year stated that he did not believe that people should be discriminated against under federal law because they are in same-sex relationships.

I hasten to emphasise that this does not deal with the matter of same-sex marriage or matters like adoption. What it deals with is the legal situation affecting people, particularly same-sex partners, under federal law, whether you are talking about taxation, superannuation, the defence forces, veterans, Medicare arrangements, social security legislation or a whole range of other areas. Just last week, the Senate Standing Committee on Economics tabled its report into the provisions of the Tax Laws Amendment (2006 Measures No. 4) Bill 2006. As my colleague Senator Murray pointed out in his minority report, these changes will have the effect of expanding existing discrimination that already applies to people in same-sex relationships under the capital gains tax regime. So, despite some of the positive statements being made by a range of coalition members, including the statement on the public record by the Prime Minister that he does not believe people should be discriminated against in general areas of federal law because they are in same-sex relationships, not only does that reality continue to exist but it is being expanded, for example, in that piece of taxation legislation.

General nice-sounding statements saying that you do not think something should be the case are not good enough when the reality is that discrimination exists and the solution or remedy to that discrimination has been before the Senate since 1995 in the form of legislation tabled by the Democrats. The remedy is here in this legislation. It may be that some other speakers might identify specific components within the legislation that they think are problematic in a legal sense, and I am quite happy for them to do so. But nitpicking about particular problems with this specific piece of legislation should not be used as an excuse for ongoing inaction. Inaction is what we have had in this area.

I feel compelled to emphasise and, indeed, defend the Democrats’ record in this area. I noted a list put forward yesterday by the Sydney Star Observer of, according to them, some of Australia’s most gay-friendly politicians. This is not a competition, I hasten to add, and I am not in any way casting aspersions on others who were mentioned in that list, of which Mr Entsch was one and I think Senator Vanstone was another, but I did take great offence at the failure to note the Democrats’ record in this area. What that says to me, quite frankly, is that the Sydney Star Observer are not interested in people undertaking action that makes a difference. If you want to get this discrimination changed, making statements in support is not going to change it. Even the Prime Minister has made statements that can be interpreted as supportive. What makes a difference is actually seeking to act to change the laws. There can be absolutely no doubt that the Democrats have done that consistently, year after year after year—far more so than any other party in this federal parliament. To have that not recognised and dismissed is, apart from being personally offensive to me, really quite a dangerous act because it suggests to any other politicians who might be wanting to act in this area that there is not much point in genuine action because that is not valued by people such as those at the Sydney Star Observer. It is no wonder you do not get progress when the people who attempt to make changes do not get any recognition.

It should be noted that there have been some positive changes in recent years. They are minor, but I think any advance should be acknowledged. Back in May 2004, at the time I was the leader of the Democrats, we saw the federal government finally agree to some recognition of people in same-sex relationships being able to access the superannuation of their partners in the same way as can people in de facto opposite-sex relationships. Whilst that was agreed and put in legislation—it was put in the form of recognition of interdependent relationships—I would have to say the actual process of administratively enacting that legislative change has been extremely poor. In a sign of how strongly this federal government was prepared to resist this sort of change, an amendment was made to the superannuation choice legislation and, because the Labor Party did not support superannuation choice legislation, the Democrats were in the position where our vote made the difference in whether the legislation passed or failed.

It took three years, from August 2001, over which the sole area of disagreement between the Democrats and the government was in removing the discrimination on same-sex couples being able to access the superannuation of their partners. The government were prepared to sacrifice all the changes with regard to superannuation choice for three years, solely so they did not have to adopt that principle. It took three years for them to change their position—but change it they did, which is certainly welcome and also something, I might note, that was barely acknowledged in much of the gay and lesbian media around the country. That is another example of where one has to wonder whether actual change is something that people are interested in or whether its being acknowledged is dependent on who is achieving it.

There have been other small steps forward. There is a long history in the Hansard of this Senate of the Democrats repeatedly pressuring the government via questions in question time, as well as during Senate estimates, through motions and in legislation through proposed amendments, seeking to remove discrimination for same-sex couples who are veterans or in the Defence Force. We have seen some small improvements in that area just in the last year or two. It is quite extraordinary, when we have a crisis with regard to recruitment and retention in the armed services, that the federal government refused to address something as fundamental as the entitlements of people’s partners because of their own philosophical objections to wanting advance in this area. There have been some changes there in recent years—not comprehensive or complete changes but at least there have been some.

I would also note that it was again the Democrats, going as far back as 1991, who were able to get changes made in the immigration area through an interdependency category that allowed some people in same-sex relationships to migrate to Australia. Again, it is not as adequate as complete removal of discrimination altogether, but it did provide a mechanism. We have seen a small step forward in recent times where the skills shortage is so bad in this country that the government are even willing to recognise same-sex partners to try to get people in here on skilled visas. They still will not do it across the board, including and most importantly in the family visa area, but they now recognise same-sex partners in the skilled visa categories because not doing so was a barrier to actually getting skilled people to migrate here. But, again, it took all of those years to get those small and incomplete changes.

If you compare the lack of progress at the federal level with what has been done at the state level, it becomes all the more stark because, at the time the predecessor to this legislation was first presented, back in 1995, many of the states were in as bad, if not a worse, situation. But, whilst things have all but stood still at the federal level, we have seen all of the states and territories significantly improve their situation. All of the states and territories have introduced laws ensuring same-sex relationships are afforded equality under law. Tasmania has gone so far as to remove all reference to the word ‘de facto’ in its legislation and replace it with a series of definitions relating to interdependent relationships covering family members, carers and significant personal relationships, which include those in same-sex relationships.

The benefit of that approach is that it recognises that this is about relationships. Removing discrimination on the basis of sexuality highlights the fact that we are talking about human beings, with all of their diversity and all of the different types of relationships that they have—not just getting hung up about sex. It would be good if people could just cope with putting aside their own particular personal moral views about sexual activity and recognise that we are dealing with human relationships here—and dealing with a wide range of human relationships of diverse nature.

Discriminating against people on the basis that you do not happen to like the gender of the person they have fallen in love with or the person they have formed a strong, independent relationship with not only is offensive and unfair but can be extremely hurtful. It leads to completely unnecessary inequities in our society and our economy. Frankly, it simply works against the human reality. A change is long overdue.

As I said, at its core, the legislation simply seeks to remove the areas of discrimination. It simply seeks to ensure that Commonwealth law no longer is able to discriminate against people on the basis of their sexuality or their gender identity. There is a range of different components, different divisions, within the legislation. They are outlined in the original second reading speech by Senator Greig back in 2003. That is on the Hansard record, so I will not go through them again now.

But I do need to emphasise the core point: over the last decade throughout Australia we have had significant progress in removing discrimination on the grounds of sexuality in all of the state and territory governments. It has not just been Labor governments and it has not been done solely by Labor; in most cases, even when Labor governments were making these changes, the changes were supported by Liberal oppositions, and in some cases changes were made by Liberal governments. It is solely at the federal level that we have had this total intransigence and this complete refusal to move.

I would have to say that it took a long time for the ALP to move. As many senators would recall, and as is still the practice of the Democrats from time to time, when various pieces of legislation pass through this chamber we move amendments to areas of law—whether it is tax law, Medicare law, Defence Force legislation or veterans legislation, to use some examples—to ensure that at least the act being dealt with no longer includes discriminatory aspects with regard to people’s relationships. For the first 10 times we did that, Labor opposed us, for a variety of reasons. It was not until the 11th time—I think on 18 September 2003—that Labor finally supported amendments that we moved. They were to superannuation legislation. For the first time, the amendment to remove discrimination in that particular area passed the Senate. Unfortunately, it did not pass the House of Representatives and it was not insisted on when it got back to the Senate, so we did not have success in that area. But it did take a significant number of times before we could even get the ALP on record and consistently supporting amendments that would remove discrimination at least for particular areas of legislation. The ALP is now relatively consistent on that, and that is something to be welcomed.

But it does need to be emphasised that this discrimination is continuing. It is very real and it is extremely unfair. As I said previously, it goes to the heart of people’s identity. It goes to the heart of people’s relationships. To have legislation that quite actively discriminates against people solely on the basis of their sexuality—in some cases very severely—is something that we should be well and truly past. It is most frustrating to have even the Prime Minister saying that he accepts that principle but still refusing to act on it. That is where the pressure needs to be continued.

Whilst this legislation will not come to a vote today and will not in itself change that reality, by bringing it on for debate again today the Democrats seek to continue to put that pressure on all of us here—to not just make some positive statements but follow them up with action. We will persevere, even if it is not recognised by people such as the Sydney Star Observer, because it is the right thing to do. It is something that probably loses votes—in fact, I know that it loses votes—especially for parties such as the Democrats, who seek to maintain more of a centrist position. But it is the right thing to do and it is well and truly overdue.

We will continue to test all parties in this area, probably when the next taxation legislation—the tax No. 4 bill—comes through in the next few weeks. The easy thing to do would be to just support this legislation. If we did that, we would address this issue once and for all in its totality. That is what we should be doing.