Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 5300 revised:

(1)    Schedule 1, page 3 (after line 4), before item 1, insert:

1AA  Subsection 4(1)

Repeal the definition of child of marital relationship.

(2)    Schedule 1, page 3 (after line 6), item 1, before the definition of salary, insert:

de facto relationship means:

             (a)    the relationship between two people living together as a couple on a genuine domestic basis;

             (b)    in determining whether two people are in a de facto relationship, all the circumstances of the relationship must be taken into account, including any of the following:

                   (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;

             (c)    no one factor, or any combination of factors, under paragraph (b) or (f) is necessary to establish a de facto relationship;

             (d)    a de facto relationship may be between two people, irrespective of gender;

             (e)    two people may still be in a de facto relationship if they are living apart from each other on a temporary basis;

              (f)    if a relationship is registered under a state or territory law allowing for the registration of relationships, registration is proof of the relationship from that date.

The debate has, I think, already mostly taken place during the second reading debate, so I will not extend it any longer than need be, given the lateness of the hour. Clearly this item inserts a new definition of de facto relationship into the act. The definition is based on the recommendations of the Human Rights and Equal Opportunity Commission model definition published in its report. It goes on to define a de facto couple as a couple living together in a genuine domestic relationship and then provides a list, of (a) to (j), of how that would then be taken into account. It does confine itself and it is narrowly cast. It is in fact more narrowly cast than the amendments to be moved by the minor parties. Be that as it may, it does seek equity—as I indicated in my speech in the second reading debate—for Justice Kirby. This of course is the prime amendment that Labor is moving to the act and the rest are consequential. The effect would be that de facto homosexual couples will gain access to the same rights as de facto heterosexual couples, which is the main import. As we know, it only relates to the particular act which it amends—which is the Judges’ Pensions Act. While Minister Johnston was keen to group me with the minor parties—and whilst sometimes I do not mind standing with them—in this instance I am slightly apart. This amendment is only with respect to the Judges’ Pensions Amendment Bill 2007. It seeks to amend that bill to provide for equity in respect of the arguments which were progressed during my speech in the second reading debate and which I have outlined now. I commend the amendment to the Senate.

Question negatived.

Going from what they have said in the past, I am disappointed that the government do not take the opportunity in this instance to take what I consider to be a case-by-case example with a narrow amendment which does not have the cost implications that Senator Johnston avers. Of course, the government can, if he talks about a range of other Commonwealth officers and sergeants, and other officers for that matter—I did not want to leave out the ordinary and sometimes exceptional foot soldiers—undertake that process. They can demonstrate their bona fides in this and undertake their work. In this instance they can start with this one. I move:

(3)    Schedule 1, page 3 (after line 15), after item 1, insert:

1A  Section 4AC

Repeal the heading, substitute:

1B  After subsection 4AC(2)

Insert:

     (2A)    For the purposes of this Act, a person is a de facto partner who survives a deceased Judge if:

             (a)    the person had a de facto relationship with the deceased Judge at the time of the death of the deceased Judge (the death); and

             (b)    in the case of a deceased Judge who was a retired Judge at the time of the death:

                   (i)    the de facto relationship began before the retired Judge became a retired Judge; or

                  (ii)    the de facto relationship began after the retired Judge became a retired Judge but before the retired Judge reached 60; or

                 (iii)    in the case of neither subparagraph (i) nor (ii) applying—the de facto relationship had continued for a period of at least 5 years up to the time of the death.

1C  After subsection 4AC(3)

Insert:

     (3A)    In spite of subsection (2A), a person is taken to be a de facto partner who survives a deceased Judge if:

             (a)    the person previously had a de facto relationship with the deceased Judge; and

             (b)    in the case of a de facto relationship that began after the deceased person became a retired Judge and reached 60—the relationship began at least 5 years before the deceased person’s death; and

             (c)    in the Attorney-General’s opinion, the person was wholly or substantially dependent upon the deceased Judge at the time of the death.

1D  Section 7

Repeal the heading, substitute:

1E  Section 7

After “spouse” (wherever occurring), insert “or de facto partner”.

1F  Section 8

Repeal the heading, substitute:

1G  Section 8

After “spouse” (wherever occurring), insert “or de facto partner”.

1H  Subsection 9(1)

After “spouse” (wherever occurring), insert “or de facto partner”.

1I  Subsection 10(1)

After “spouse” (wherever occurring), insert “or de facto partner”.

1J  Section 11

Repeal the heading, substitute:

1K  Subsection 11(1)

After “spouse” (wherever occurring), insert “or de facto partner”.

1L  Section 12

Repeal the heading, substitute:

1M  Subsection 12(1)

After “spouse” (wherever occurring), insert “or de facto partner”.

1N  Section 12A

After “spouse” (wherever occurring), insert “or de facto partner”.

1O  Section 15

After “spouse” (wherever occurring), insert “or de facto partner”.

1P  Section 15A

Repeal the heading, substitute:

1Q  Section 15A

After “spouse” (wherever occurring), insert “or de facto partner”.

1R  Section 15A

After “spouses” (wherever occurring), insert “or de facto partners”.

This final item is to remove the term ‘child of a marital relationship’ from the act. The term in fact came to our attention when we were preparing our amendments for this bill. It appears to be a hanger-on, possibly from a previous amendment to the legislation, that has been missed. Often I spend most of my time looking at your legislation, and these things turn up occasionally and I give you the opportunity to correct them. The problem with the definition is that it appears only once in the legislation, in the definition section. So you have a phrase that is defined but in fact not used. It is not unusual, I guess, for Commonwealth legislation, but occasionally it comes up. In my view, this appears to be a redundant section of the legislation. The term ‘child’ and ‘eligible child’ are defined elsewhere, and those are the terms that are used throughout the act.

I would be happy to accept advice from the minister as to whether this is worth keeping in the definition when it does not appear to have any function as it is unrelated to any other section. It appears that, in keeping with always removing causes of confusion, it might be worth accepting this amendment and removing it unless there is good cause to keep it. Perhaps the minister has some clarification as to a good reason for keeping it there.