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

I move Democrat amendment (5) on sheet 4868:

(5)    Clause 22, page 32 (line 26), at the end of subclause (10), add “and includes a same sex partner”.

This relates to the definition of ‘spouse’. Under the residence requirements of the new act that we have been debating, proposed subsection 22(9) deals with ‘spouse’ and a ministerial discretion. I will read it out for the benefit of the chamber:

Ministerial discretion—spouse, widow or widower of Australian citizen

(9)

If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a)

the person was a spouse of that Australian citizen during that period; and

(b)

the person was not present in Australia during that period; and

(c)

the person was a permanent resident during that period; and

(d)

the Minister is satisfied that the person had a close and continuing association with Australia during that period.

For the purposes of that subsection, ‘spouse’ is also defined as ‘de facto spouse’. What that does, as I understand it, is allow the minister to treat the spouse of an Australian citizen who has permanent residency as having been in Australia even though they were not if they are the spouse of an Australian citizen. It is a ministerial discretion that can be applied to spouses, including de facto spouses, of Australian citizens who are permanent residents to enable them to become citizens as well.

We can all detail examples of how that circumstance could happen. I imagine many of us would know examples of that—Australian citizens who are married to people from other countries or who have a de facto partner who is from another country, while the spouse has a permanent residency visa for Australia, quite possibly a spouse visa although not necessarily; it could be any sort of skilled visa, even a refugee protection visa. For various reasons the Australian citizen could be off working somewhere else and their spouse could be with them—quite a common occurrence in the modern world. In those circumstances, if the spouse is interested in becoming an Australian citizen, it is in Australia’s interests for them to be able to do so without waiting out unnecessary extra lengths of time under the residency requirement.

The Democrat amendment is aimed at ensuring that the definition of ‘spouse’ includes not only de facto spouses but also same-sex partners. This is a longstanding campaign of the Democrats to try to reduce discrimination under Australian federal legislation towards people with same sex-partners. For quite some time the Prime Minister and a number of other members of the coalition, both senior and not so senior, have spoken about how they do not support discrimination against people on the basis of the gender of their partner.

A Human Rights and Equal Opportunity Commission inquiry underway at the moment has been detailing all of the different Commonwealth pieces of law where people are discriminated against on the grounds of their sexuality, one of which is the Migration Act and another of which is the Citizenship Act. The commission has held hearings and taken evidence from people around the country who have given real-life personal examples of how this discrimination impacts upon them.

Let me remind the committee that we are putting in place a whole new citizenship act here. Many times in the past, when the Democrats have moved amendments to ensure people with same-sex partnerships are treated the same way as people with opposite-sex partners, we have had the response, ‘Well, you can’t do it bit by bit; you have to do it as one big piece of legislation and do it all at once otherwise you will just get lots of anomalies.’

Last year, when the Democrats brought on for debate once again our one big bit of legislation that would actually do that, the Sexuality and Gender Identity Discrimination Bill, which has been in this chamber since 1995, we had government senators say, ‘We support this totally.’ I remember a particularly eloquent speech from Senator Brandis. Maybe that is why he ended up being in the ministry, because the Prime Minister was so impressed by his eloquent defence of the need to eliminate discrimination on the grounds of sexuality. He gave an eloquent defence, an eloquent speech—as did a few other Liberal senators—about the importance of this principle. He said that we could not do it all in one big thing like this; what we should do is do it piece by piece.

Now here is the opportunity. And it is not piece by piece; it is not even a tiny little amendment to one little part of the legislation. This is ensuring that we get the Citizenship Act—the brand spanking new, sparkly, squeaky-clean, updated, upmoded, modern Australian Citizenship Act—correct right from the start, right from when it is first in place. We are not just making a small amendment on the side, tacking on a little thing with a bit of sticky tape that will stick out and offend people’s sensibilities because it is not nice and neat enough. This is making sure the new act is spot-on when it comes in.

So I can only assume that the government will not put up the argument that we need to do this all at once, in one big go, and that we cannot possibly do it one act at a time. There is only one way to do it, which is one act at a time. And the human rights commission have been detailing those acts. Whether they have been detailing them or not, it is pretty obvious that that is what we have here: the definition of spouse includes de facto spouse; it does not include same-sex partner.

A particular reason it needs to be done is that we already have anomalies in the immigration act. We have the absurdity of the government themselves making a change to the treatment of spouses under one class of visa. And this was after all those years of saying: ‘No, we couldn’t possibly support an amendment that would generate equality for people with same-sex partners because it would be too messy and you would create anomalies. We need to do it all at once; we need to do it to whole acts, not just in one bit.’ It is after all those years of citing that as a reason to vote against Democrat amendments in this area—even though they supported the principle, totally supported the principle, were proud of the principle! ‘Great principle! Just can’t do it here.’

Yet what we saw from the former minister, Minister Vanstone, was a change to the criteria just for skilled visas. Under skilled migration visas, spouses include same-sex spouses. If you are applying for a skilled visa in Australia and you have got a same-sex partner, we will recognise that relationship. I supported that because at least it was some recognition of that relationship; it was a move forward. Yet we have an absurdity under our migration law. We are desperate to get people here on skilled visas—and I support our sizeable migration program; I support bringing in people on skilled programs; I support the 457 visa program; I am not criticising all that. But we have this bizarre situation where we are so desperate to get people here on skilled visas that the government have reversed their own longstanding, obstinate refusal to support these sorts of changes and made an administrative decision that same-sex partners count as spouses for skilled visas.

It was very important. We had clear evidence—and I recall former senator Brian Greig from the Democrats raising this in question time as an example—of doctors and nurses, people who we were desperately trying to get here, who would not come here because their partner could not come with them on the same visa. Everybody else’s spouse could come with them; same-sex partners could not. That was changed and that was good. It was self-serving, because we needed the skilled people. But then we had the bizarre situation where people could come here and have their partner recognised on a skilled visa, but they could not come here and have their partner recognised on a spouse visa. That anomaly is sitting there today; that continues, in any of those family categories.

People in same-sex relationships normally have to go through the interdependency visa; that is a roundabout way that has been used. That was a Democrat initiative, going back over 10 years now, to at least provide some mechanism, some way, for the government to allow in same-sex partners without admitting to the reactionary part of their constituency that that was what they were doing.

We already have all these anomalies in the Migration Act, so any argument that this cannot be agreed to because it would create an anomaly is just absurd. But we also have that anomaly where people can come here on a visa—not just on an interdependency visa now but also on a skilled visa—and have their same-sex partner recognised as a spouse. Yet, when people have a same-sex partner who is an Australian citizen, we do not recognise that as a spousal relationship. So I say to the government: by not fixing this up, by not agreeing to this amendment, you will actually create an anomaly that you are halfway to fixing—only halfway to fixing—in the migration area.

This has nothing to do with the gay marriage debate. And I would put on the record that the Prime Minister has made clear, as have most people in the coalition—and Mr Entsch from the electorate of Leichhardt in my own state of Queensland has pushed this to some extent in the coalition—that, whilst the government are about removing discrimination against same-sex couples, they are not about legalising same-sex marriage. It is not about adoption; it is nothing to do with that. It is simply making de facto partnerships, de facto spouses, equivalent, whether they are in same-sex relationships or opposite-sex relationships.

It is a very clear amendment. It is very simple. It removes discrimination. It ensures that our supposedly modern, new, updated Citizenship Act actually is that. It was raised in some submissions in the Senate inquiry over a year ago. So we cannot have the excuse that we did not have any warning about this and that nobody raised it, which is also sometimes used as a reason not to support this. Dare I suggest it is time, on this occasion, for equality to finally be implemented clearly and unequivocally in one Commonwealth act right from its very outset. I would urge all senators to recognise that and support this amendment.