Andrew Murray (WA, Australian Democrats) Share this | Hansard source

I move Democrat amendment (1) on sheet 5061:

(1)    Schedule 1, item 1, page 4 (after line 26), at the end of section 118-75, add:

        (3)    This section applies to separations in same-sex relationships.

        (4)    For the purposes of this section, the question whether partners in a same-sex relationship have separated is to be determined in the same way as it is for partners in a de facto marriage.

In moving this amendment, I want to draw on some remarks I made in my minority report to the Senate Standing Committee on Economics, and these are they:

Schedule One extends the operation of the marriage breakdown roll-over provisions to an additional three situations:

• a financial agreement binding under the Family Law Act;
• an arbitral award made under the Family Law Act; or
• a written agreement that is binding because of a state, territory or foreign law relating to de facto marriage breakdowns.

As the Bills Digest notes—

that is, the Bills Digest of 15 August 2006, No. 16, page 4—

Parliament may note that the measure will make no changes to availability of the roll-over relief: only heterosexual couples, married or in de-facto relationships, will benefit from the expansion of the relief. It will continue to be unavailable to same-sex couples.

This represents the continuation of on-going tax discrimination against homosexuals, and is thus a violation of equity.

That is what I said—not what the Bills Digest said.

It is one thing to take time to phase in changes to laws that are explicitly discriminatory, but which are costly and/or complicated to unravel. It is quite another thing to introduce new or extended discrimination, which this bill does. I can think of only one of three reasons for this to have occurred:

• it was an oversight;
• there are (as yet) unexplained (and justifiable) reasons why this is necessary; or
• the Government is homophobic.

I hope the first reason is the one. As for the second possible reason, I cannot see any possible justification which would merit extending discrimination through this legislative action—certainly not the Minister’s …

The minister I refer to is the Hon. Mal Brough, then Minister for Revenue and Assistant Treasurer, in answering question on notice No. 243 on taxation and capital gains tax from Mr Michael Danby on 9 December 2004, Hansard page 193.

As for the third possibility—if the first two possible reasons fall away, then this third reason remains.

I recognise that recent legislated changes to the Australian federal definition of marriage may mean that same-sex couples may find it difficult to seek to be on the same statutory basis with respect to CGT events as married couples. However, Schedule One also covers de facto relationship breakdowns, so same-sex couples are entitled to seek to be on the same basis with respect to CGT events as de facto heterosexual couples.

This is what my amendment intends to do.

My question on notice on this matter was addressed by Treasury as follows:

My question is a very simple one: to address the issue of providing the same marriage breakdown rollover provisional law changes proposed in this bill to de facto same-sex couples, would that require a change in law? Would that actually require an amendment?

Answer: Yes to both questions.

This continuation of official discriminatory behaviour is frustrating because this is a new rule, and rather than extending discrimination, this legislation should be used as an ‘engine of change’. As I understand Coalition Government policy, including as enunciated by the Prime Minister, the Coalition do not support continued discrimination against gay and lesbian Australians with respect to property matters.

My minority report then quotes from a transcript of a press conference at the Commonwealth Parliamentary Offices in Sydney on 22 December 2005:

Prime Minister Howard has said that he is

Strongly in favour …of removing any property and other discrimination that exists against people who have same-sex relationships.

The report continues:

One of the few witnesses to the Inquiry, The Institute of Chartered Accountants, had no taxation objections to this discrimination being overturned.

           …         …         …

The Human Rights and Equal Opportunities Commission is conducting a National Inquiry into Discrimination against People in Same-Sex Relationships. They note that same-sex couples do not attract the tax concessions available in relation to property transfers following family breakdowns that are available to heterosexual families.

Let me recap. I do not consider the Minister for Finance and Administration to be homophobic. I consider him to be an excellent finance minister, and I say so on the record, even though at times he and I clash on policy matters. I would be surprised if the Treasurer or the Prime Minister were homophobic. The Prime Minister has specifically said that he wants to do away with this sort of discrimination in real property laws.

I fully understand those members of parliament who have real concerns about marriage. I have listened to their arguments and I understand them, but I know that, if a free vote were taken in this parliament on the issue of real property matters with respect to same-sex couples, it would pass. Labor Party members support ending that discrimination, Liberal Party members support ending it and I think that The Nationals support ending it, so what are we doing extending it? I understand that the costly arrangements with superannuation may take time to unravel. The minister and I have had a discussion on that and I understand it—I do not like it, but I understand it.

When I was a young teenager I confronted discrimination, which resulted in many fist fights. That discrimination was against black people. I abhor racism because it has no regard for somebody’s ability or for issues of equality, rights or decency. It is contrary to every value to which we should ascribe. In the end, when racism in southern Africa eventually went the way it should have and was taken out of statutes, people were so relieved at no longer having to live under a rule of law which was perverted by that doctrine. I think that most parliamentarians in both houses, even if they might be homophobic in their personal relationships, are absolutely not supportive of homophobia with respect to statutes. I am not suggesting that most parliamentarians are homophobic, because I absolutely think that they are not.

I am deeply disturbed and unimpressed when any extension of discrimination occurs. That is what this bill does. I know the minister, because he has no authority to do otherwise, will stand up and say that he cannot accept my amendment, but I ask him to go away before we get much of the way through next year’s legislative agenda and make some progress on this issue. Even if they are minor steps, let us at least advance this issue. This continuing discrimination genuinely does upset me. I do not see why Australians who are in intimate relationships that happen to be of a same-sex nature should be discriminated against in real property issues in the way they continue to be in this country. There are many other discriminatory areas, I understand that, but in this bill we are dealing with real property issues. I repeat: I accept and recognise that the law affects the way in which married relationships shall be dealt with; I am addressing only de facto relationships.