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

by leave—I move amendments (1) and (2) on sheet 5328, revised No. 2, together:

(1)    Schedule 5, page 98 (after line 17), before item 27, insert:

26A  Subsection 10(2)

Insert:

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship:

             (a)    in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                   (i)    the length of their relationship;

                  (ii)    how long and under what circumstances they have lived together;

                 (iii)    whether there is a sexual relationship between them;

                 (iv)    their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                  (v)    the ownership, use and acquisition of their property, including any property that they own individually;

                 (vi)    their degree of mutual commitment to a shared life;

                (vii)    whether they mutually care for and support children;

               (viii)    the performance of household duties;

                  (ix)    the reputation, and public aspects, of the relationship between them;

                   (x)    the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

             (b)    a de facto relationship may be between two people of the same gender.

Note:   A person in a marital relationship is taken to be legally married - see subsection 8A(2) of the Superannuation Act 1976.

(2)    Schedule 7, page 112 (after line 26), after item 65, insert:

65A  Subsection 995-1

Insert:

                 beneficiary relationshipfor the purposes of this Act, a person had a beneficiary relationship with another person at a particular time if the person has a marital or de facto relationship with the person and ordinarily lived with that other person on a permanent and bona fide domestic basis at that time.

65B  Subsection 995-1(1)

Insert:

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship:

             (a)    in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                   (i)    the length of their relationship;

                  (ii)    how long and under what circumstances they have lived together;

                 (iii)    whether there is a sexual relationship between them;

                 (iv)    their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                  (v)    the ownership, use and acquisition of their property, including any property that they own individually;

                 (vi)    their degree of mutual commitment to a shared life;

                (vii)    whether they mutually care for and support children;

               (viii)    the performance of household duties;

                  (ix)    the reputation, and public aspects, of the relationship between them;

                   (x)    the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

             (b)    a de facto relationship may be between two people of the same gender;

             (c)    to avoid doubt, two people may still be in a de facto relationship if they are living apart from each other on a temporary basis.

65C  Subsection 995-1(1)

At the end of the definition ofspouse, add “and includes a person who is in a beneficiary relationship”.

I urge the Senate to accept these amendments. The amendments I refer to arise directly from, and are closely aligned to, the precise and detailed recommendations of the May 2007 Human Rights and Equal Opportunity Commission report Same-sex: same entitlements. That was a national inquiry into discrimination against people in same-sex relationships—their financial and work related entitlements and benefits. This is the first tax bill that I could put these amendments to.

I draw the attention of the chamber to appendix 1 of that report, which lists 58 acts that need amending to comply with the commission’s finding that inequitable and unjust discrimination applies to tens of thousands of Australians who are in same-sex relationships. I draw the Senate’s attention to the chapter headed ‘Summary of findings and recommendations’—that is chapter 18, on page 371. Within chapter 18, on page 384, you will find a list of items used to determine whether two people are in a de facto relationship and the circumstances taken into account to determine that relationship. Those are replicated in my amendment. Discrimination under tax laws is also described in chapter 18 under ‘Summary of findings and recommendations’. It is described under (c) on page 377: ‘Discrimination under tax laws’.

I very much doubt that senators have the report readily to hand, so I will read the section about the discrimination that exists—the homophobic discrimination, might I say—the unjust, totally unwarranted, immoral, disgraceful discrimination that exists under our tax laws against same-sex couples or families. I draw the attention of the chamber to the fact that many people of same-sex persuasion do, in fact, have families—children and, of course, dependants. I will read section (c). Do not despair; it is not so long that it will take forever. The section is headed ‘Discrimination under tax laws’ and says:

The Inquiry finds that federal tax laws discriminate against same-sex couples or families in the following ways:

• A same-sex partner cannot access the dependent spouse tax offset available to an opposite-sex partner.
• A same-sex partner cannot access the tax offset for a partner’s parent available to an opposite-sex partner.
• A same-sex partner, lesbian co-mother or gay co-father cannot access the housekeeper tax offset available to an opposite-sex partner, birth mother or birth father.
• A lesbian co-mother or gay co-father cannot access the child-housekeeper tax offset available to a birth mother or birth father.
• A lesbian co-mother or gay co-father cannot access the invalid relative tax offset available to a birth mother or birth father.
• A taxpayer in a same-sex couple cannot access the higher rate of overseas forces tax offset available to an opposite-sex couple.
• A taxpayer in a same-sex couple cannot access the higher rate of zone tax offset available to an opposite-sex couple.
• A US defence force same-sex couple cannot access tax exemptions available to an opposite-sex couple.
• A lesbian co-mother or gay co-father cannot assert a primary entitlement to the baby bonus.
• A same-sex partner of a person eligible for the child care tax rebate cannot access the rebate in the same way as an opposite-sex partner. And a person eligible for the child care tax rebate cannot transfer the unused value of the rebate to his or her same-sex partner.
• A same-sex couple must spend more than an opposite-sex couple to qualify for the medical expenses tax offset.
• A same-sex couple may pay a higher Medicare levy and Medicare levy surcharge than an opposite-sex couple.
• A same-sex partner cannot access the same capital gains tax concessions available to an opposite-sex couple.
• A same-sex couple transferring property to a child (or trustee) on family breakdown will be taxed at the top marginal rate, unlike an opposite-sex couple.
• A same-sex partner must pay income tax on child maintenance payments received from a former partner, unlike an opposite-sex partner.
• A same-sex partner is not eligible for the same fringe benefit tax exemptions available to an opposite-sex partner.

Chapter 8 of the report provides much more detail about these and other tax entitlements. This kind of discrimination is not about marital relationships; this is about relationships between people who live together, who have an enduring relationship, which is determined on a very exact basis, and who are not allowed the same tax entitlements as other Australians living in the same circumstances. It is an abomination. It is unacceptable. Now that this report is out, there is no excuse for it not being addressed. There is no political advantage in this to anyone refusing or opposing this. There is just a moral vacuum, a moral failure. I have brought these amendments forward because I think it is time the government addressed them. I do hope that the amendments, which I have designed to comply as close as I can with HREOC’s recommendations, find acceptance.

Through you, Madam Temporary Chairman: I know, Minister, that the amendments are likely not to be perfect, but the government could always accept them and improve them in the House and then send them back for the agreement of the Senate. I would urge the Senate to accept these amendments and approve them.