Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Hansard source

I rise this evening to contribute to the debate on the Sexuality and Gender Identity Discrimination Bill 2003 [2004]. I would at the outset make the general observation that the government is committed to removing discriminatory treatment in federal laws. This commitment intends to remove discrimination against all interdependency relationships. Indeed, both the Prime Minister and the Attorney-General have made public comments on the need for removal of discriminatory treatment at the federal level. The government is currently examining discriminatory treatment against interdependency relationships, but in this complex area it is important and appropriate to deal with the issue on a case-by-case basis.

I would like to just focus on the government’s commitment to protecting human rights. The government condemns discrimination as understood in international human rights law. It condemns such discrimination in all its forms. All in our society should have the opportunity to participate in our community and to experience the benefits associated with that participation. On the other hand, I also think that all in society should also accept the responsibilities that flow from such participation without fear of discrimination.

The Australian government is committed to the protection of human rights. Our approach to human rights is a reflection of our liberal democratic ideals. It is also a reflection of our belief that justice and human dignity are basic rights that all in society should enjoy. Human rights in Australia are underpinned by the interaction of important institutions within our legal framework. Australia is one of the oldest democracies in the world, with strong democratic institutions. Our Constitution and our common-law system are also important institutions which protect human rights.

In addition, current legislation, including anti-discrimination legislation at the Commonwealth, state and territory levels, protects and promotes human rights in Australia. Australia has a wide range of programs, services and support mechanisms designed to assist every Australian to achieve their full potential. The government is committed to ensuring that such programs and services target those most in need while encouraging all Australians to contribute in the community to the extent that they are able. At a federal level there is already an extensive framework of legislation protecting human rights and prohibiting discrimination on various grounds. The state and territory governments have also enacted their own anti-discrimination legislation and established various human rights institutions that operate in the various states and territories.

I would now like to now turn to some previous comments that the Prime Minister and the Attorney-General in particular have made in relation to sexuality discrimination. Both the Prime Minister and the Attorney-General have previously indicated, on various occasions, that the Australian government is committed to the elimination of discrimination against same-sex couples. This issue ought properly to be treated, as I said, on a case-by-case basis. I would particularly like to put on the record some comments that the Prime Minister made as far back as 24 August 2001, when he stated:

I think people take the view that individuals make their own preference, you know, choose their own lifestyle in these things and people shouldn’t be the subject of discrimination if they choose a particular lifestyle.

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... I don’t think people should be in any way penalised or discriminated against if they are homosexual. I mean I certainly don’t practice any kind of discrimination against people on the grounds that they’re homosexual, I think that is unfair.

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I mean my view is that we should be completely tolerant and fair minded about people’s sexual preference.

When asked about civil unions in December 2005, the Prime Minister stated:

I am strongly in favour—as my Government has demonstrated—strongly in favour of removing any property and other discrimination that exists against people who have same-sex relationships.

Also, in June this year, speaking in Sydney, the Prime Minister stated:

I am in favour of removing areas of discrimination and we have and I’m quite happy on a case by case basis to look at other areas where people believe there’s genuine discrimination, but I think they should be looked at on a case by case basis. I don’t think it’s the sort of thing that can be done in an across the board fashion. We made some changes in relation to entitlements a couple of years ago and if there are other areas of genuine discrimination, then I’m in favour of getting rid of them.

The extent to which sexuality discrimination—particularly differential treatment of same-sex relationships—exists in our society is a very complex question. It is a question which the government is looking at closely. The government believes that a single piece of legislation is not the most effective way to address the differential treatment experienced by persons in same-sex couples or those who identify their sexuality as other than heterosexual, and such legislation is likely to have unintended consequences.

The Democrat member’s bill is essentially a replica of existing federal anti-discrimination laws, such as the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992, with terms like ‘sexuality’ replacing ‘sex’ or ‘disability’. It is a blunt instrument for a complex task. For this reason the government believes that instances of inequitable treatment should be considered on a case-by-case basis with regard to the underlying legal and policy framework in which the discriminatory provisions operate. A good example of the need to give such treatment detailed consideration is superannuation. Changes to large programs, like superannuation, may involve significant future costs, and further work would need to be done to prepare those programs for those changes.

I would now like to look at action that has been taken to address differential treatment and discrimination. The government has a strong record of condemning discrimination in all its forms. The government’s practice has been to address discrimination where we find it. Indeed, the government already does much to remove differential treatment of same-sex couples. In the area of interdependency relationships, in particular, the government has already taken significant action to address differential treatment and discrimination.

I would like to look at superannuation, where this has been very evident. Superannuation laws have been changed to include same-sex partners as potential beneficiaries of death benefits in some circumstances. In 2004 the government amended the Income Tax Assessment Act 1936, the Superannuation Industry (Supervision) Act 1993 and the Retirement Savings Accounts Act 1997 to expand the range of potential beneficiaries of tax-free superannuation death benefits to include ‘interdependent relationships’. It is very important to note that this would include, for example, elderly siblings intending to live out their lives together, adult children living with and caring for their parents, as well as same-sex couples, who may not otherwise be recognised as dependants.

Tax-free superannuation death benefits could previously be paid only to spouses, to children under 18 years of age and to those who could establish financial dependency on the deceased. Special provision has also been made to include in the definition of ‘interdependency relationships’ circumstances in which a close personal relationship does not meet the other elements of the definition because of a disability.

Even after the amendments, it will be the governing rules of the fund which will determine whether or not a trustee can make a payment to a same-sex partner. The government’s choice-of-fund legislation will enable same-sex couples to choose a superannuation fund that best serves their needs—that is, one with governing rules that allow payments to same-sex partners.

Another area in which the government has made progress in eliminating discrimination against people in interdependency relationships is in the entitlements for Australian Defence Force employees. The government decided on 10 October 2005 to extend certain conditions of service entitlements to other interdependent relationships of ADF members which will include the same-sex partners of ADF members. Amendments will be made to ADF conditions of service, documents and relative determinations under section 58 of the Defence Act 1903.

Since 1 December 2005, ADF members in recognised interdependent partnerships, including same-sex relationships, have been eligible for the same range of conditions of service provided by Defence to those in recognised de facto relationships. The concept of interdependent relationships allows recognition of a range of relationships where there is a real reliance by the parties on each other and therefore has relevance to the members’ ability to balance work and family responsibilities by accessing conditions of service that are available for that purpose.

A wide range of work-family provisions is now available to assist all members of the Australian Defence Force in recognised interdependent partnerships. These include parental leave for all members with parental responsibility for a child, carers leave, compassionate leave and compassionate travel, housing assistance, rent allowance as a member with dependants or service residents, house-hunting trips, reunion travel, removals including for the non-service partner and/or family on breakdown of the relationship, separation allowance and bereavement payment to legal representatives.

Another area where discrimination has been addressed is immigration. In December 2005, the government asked the Minister for Immigration and Multicultural Affairs to bring forward a submission to the government on the scope of providing for the full range of interdependent relationships in applications for temporary and permanent skilled visas. In the area of migration, people who share an interdependent relationship with an Australian citizen or permanent resident are able to apply for interdependency visas to allow them to reside in Australia. This includes people in same-sex relationships.

Interdependency visas were created as a class of visa in 1991 by regulations under the Migration Act 1958. The regulations state that two people are in an interdependent relationship if they live together, are closely interdependent, have a continuing commitment to mutual emotional and financial support and are not related or part of the same family unit. The government, nevertheless, makes non-discriminatory distinctions in some areas such as in relation to marriage, adoption of overseas children and access to IVF.

Another area is in employment. Federal anti-discrimination laws do not cover discrimination on the ground of sexual preference in general terms. However, federal laws do address such discrimination. Discrimination in employment on the ground of sexual preference is a ground for lodging a complaint under the Human Rights and Equal Opportunity Commission Act 1986. The commission’s jurisdiction to inquire into such complaints arises from Australia’s obligations under ILO convention 111, the Discrimination (Employment and Occupation) Convention.

When a complaint of discrimination in employment on the ground of sexual preference is received, the commission attempts to resolve it through the process of conciliation. If the complaint cannot be resolved through conciliation and the president is satisfied that discrimination in employment has occurred, the president must report the matter to the Attorney-General. The president can also make recommendations to the Attorney-General to address any damage suffered by the complainant. The Attorney-General is required to present the report to parliament within 15 sitting days of receipt of the report.

Under the Human Rights and Equal Opportunity Commission Act 1986, HREOC also has the power to inquire into any Commonwealth act or practice which may be inconsistent with specified human rights. The same process of attempted conciliation, possibly followed by a report to the Attorney-General, applies. The Workplace Relations Act 1996 contains provisions that prohibit an employer from dismissing an employee on various specified grounds, including sexuality. Complaints of unlawful dismissal on the basis of sexuality can be lodged with the Australian Industrial Relations Commission.

I have looked at some areas where we have already taken considerable action, and the government’s commitment continues into the future. Despite the inherent complexity of reviewing such large schemes as superannuation, several key areas for reform are being discussed—superannuation, for example. The government remains committed to examining options to extend interdependency to members of Australian government superannuation schemes. Most Australian superannuation schemes are accumulation schemes which can be readily adapted to extend benefits to people in an interdependency relationship, with no additional cost to the scheme.

The PSSAP, which was opened to new public sector employees from 1 July 2005, is an accumulation scheme. By introducing the PSSAP, the government has enabled death benefits to be available to dependants, which can include a person in an interdependency relationship. PSSAP members can also nominate a dependant, dependants or a legal representative to receive those benefits. However, the closed defined benefits schemes, the CSS and PSS, have very prescriptive rules to determine eligibility for benefits.

Unlike accumulation funds such as the PSSAP, benefits in the CSS and PSS are met from the budget when they become payable rather than from the accumulated contributions and earnings of the individual member as they accrue, such as in accumulation schemes. CSS and PSS benefits are usually provided in pension form to eligible spouses and children and are payable for life in the case of a spouse. Extending eligibility for death benefits from the CSS and PSS to people in an interdependent relationship will increase scheme costs and the government’s unfunded liability because some people would then qualify for pensions, including lifetime pensions, which they would not otherwise receive.

Because of the design of these schemes, a range of technical matters and budgetary considerations need to be fully examined. Early options considered by the government have not proved feasible, and the government is seeking actuarial analysis of a broad range of options to advance interdependency for the CSS and PSS and across other Australian government defined benefit schemes. The government remains committed to making provision for CSS and PSS members in an interdependency relationship.

Australian immigration legislation has long had provision for Australian citizens or permanent residents to sponsor an interdependent partner for migrant entry to Australia. The interdependent partner visa subclasses are part of the family stream of the migration program. Until recently, however, there has been no provision for non-citizen primary applicants in a range of other visa classes to include an interdependent partner in their visa application as their dependant—that is, as a secondary applicant. This is also being looked at, and DIMA is working towards extending provisions in a range of other classes of visas to assist in this area.

Time does not permit me to go into areas in defence where the government is also looking at making changes. Suffice it to say, as I said at the beginning of my speech, that the government does have a commitment to removing discriminatory treatment in federal laws, and this commitment intends to remove discrimination against all interdependency relationships.