Kerry Nettle (NSW, Australian Greens) Share this | Hansard source

I move:

That the House of Representatives be requested to make the following amendment:

(1)    Page 30 (after line 24), at the end of the bill, add:

Schedule 4—Same-sex entitlements

Social Security Act 1991

1 Subsection 4(1)

Insert:

de facto partner means one of two people in a de facto relationship.

de facto relationship means a relationship, irrespective of gender, between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship and, in determining whether two people are in a de facto relationship, all the circumstances of the relationship must be taken into account, including but not limited to:

             (a)    the length of their relationship;

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

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

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

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

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

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

             (h)    the performance of household duties;

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

              (j)    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;

and 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.

recognised partner means one of two people in a recognised relationship.

recognised relationship means any relationship that is registered with a State or Territory Registry of Births, Deaths and Marriages under a State or Territory law allowing for the official registration of that relationship and includes but is not limited to relationships recognised as civil unions, civil partnerships, significant relationships, domestic relationships or relationships established through a Deed of Relationship. To avoid doubt, the requirements for beginning or ending any recognised relationship are to be determined by the relevant State or Territory law.

2  Subparagraph 4(2)(b)(i)

Omit “a person of the opposite sex”, substitute “another person”.

3  Subparagraph 4(2)(b)(iii)

Omit “marriage-like relationship”, substitute “de facto relationship or a recognised relationship”.

4  Subparagraph 4(3)(e)(iv)

Omit “marriage-like relationship”, substitute “de facto relationship or a recognised relationship”.

5  Subsection 4(3A)

Omit “marriage-like relationship”, substitute “de facto relationship or a recognised relationship”.

6  Subsection 5(1) (at the end of subparagraph (a)(ii) of the definition of parent)

Add “or the de facto or recognised partner of the adoptive parent of the young person”.

7  Subsection 23(1) (definition of widow)

Repeal the definition, substitute:

widow means a woman who was a partner of a person immediately before that person died.

8  Subparagraph 1067C(1)(b)(i)

Omit “a person of the opposite sex”, substitute “another person”.

9  Subparagraph 1067C(2)(b)(i)

             Omit “a person of the opposite sex”, substitute “another person”.

10  Section 1067C

             Omit “marriage-like relationship” (wherever occurring), substitute “de facto relationship or a recognised relationship”.

Veterans’ Entitlements Act 1986

11  Section 5 (table)

Insert:

de facto partner               5E(1)

de facto relationship       5E(1), 11A

recognised partner          5E(1)

recognised relationship   5E(1), 11A

12  Section 5 (table item dealing with marriage-like relationships)

Repeal the table item.

13  Subsection 5E(1)

Insert:

de facto partner means one of two people in a de facto relationship.

de facto relationship means a relationship, irrespective of gender, between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship and, in determining whether two people are in a de facto relationship, all the circumstances of the relationship must be taken into account, including but not limited to:

             (a)    the length of their relationship;

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

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

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

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

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

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

             (h)    the performance of household duties;

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

              (j)    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;

and 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.

recognised partner means one of two people in a recognised relationship.

recognised relationship means any relationship that is registered with a State or Territory Registry of Births, Deaths and Marriages under a State or Territory law allowing for the official registration of that relationship and includes but is not limited to relationships recognised as civil unions, civil partnerships, significant relationships, domestic relationships or relationships established through a Deed of Relationship. To avoid doubt, the requirements for beginning or ending any recognised relationship are to be determined by the relevant State or Territory law.

14  Subsection 5E(1) (before paragraph (a) of the definition of non-illness separated spouse)

             Insert:

           (aa)    who is a de facto or recognised partner of another person but living separately and apart from that other person on a permanent basis; or

15  Subsection 5E(1) (paragraph (a) of the definition of widow)

             Repeal the paragraph, substitute:

             (a)    a woman who was the partner of a person immediately before that person died; or

16  Subsection 5E(1) (paragraph (a) of the definition of widower)

Repeal the paragraph, substitute:

             (a)    a man who was the partner of a person immediately before that person died; or

17  Subparagraph 5E(2)(b)(i)

Omit “a person of the opposite sex”, substitute “another person”.

18  Subparagraph 5E(2)(b)(iii)

Omit “marriage-like relationship”, substitute “de facto relationship or a recognised relationship”.

19 Subsection 5F(1) (at the end of the definition of parent)

Add “or the de facto or recognised partner of the adoptive parent of the child”.

20  Section 11A

Omit “marriage-like” (wherever occurring), substitute “de facto relationship or a recognised relationship”.

Note:                The heading to section 11A is replaced by the heading “De facto and recognised relationships”.

Statement pursuant to the order of the Senate of 26 June 2000

The effect of the amendment would be to broaden the eligibility criteria for various benefits and allowances under the Social Security Act 1991 and the Veterans’ Entitlements Act 1986. This would increase the number of eligible claimants for those benefits and allowances which would have the effect of increasing expenditure from the standing appropriations from the Consolidated Revenue Fund in the Social Security (Administration) Act 1999 and the Veterans’ Entitlements Act 1986. The amendment is therefore presented as a request.

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

The Senate has long accepted that an amendment should take the form of a request if it would have the effect of increasing expenditure under a standing appropriation. This request is therefore in accordance with the precedents of the Senate.

This request for an amendment that I have moved on behalf of the Greens is for amendments that we have seen moved lots of times before. They are recommendations of the Human Rights and Equal Opportunity Commission to remove the discrimination that same-sex couples face in a range of different areas of law, and this particular bill as it relates to the Social Security Act and the veterans’ affairs act are two of those areas of the 58 identified by the Human Rights and Equal Opportunity Commission report where that discrimination exists. We used to see lots of these amendments moved under the previous government, and during the election campaign last year there were commitments from the now government to support the implementation of the Human Rights and Equal Opportunity Commission report—to removing the discrimination that same-sex couples face. There was not a principled, across-the-board agreement to remove the discrimination in all areas of federal law, because the Labor opposition, as they were at the time, picked out the area of marriage and said that that was one area in which they would not remove discrimination but that in other areas they would. That was the commitment that we had from the then opposition prior to the election, but we never got a time line about when that would happen or how that would happen, and that has been very frustrating for a lot of people in my own state of New South Wales.

The Gay and Lesbian Rights Lobby is running a campaign this year which is called 58 in ‘08. It says, ‘Let’s see these changes’—the commitment made by the former opposition during the election campaign—’to make sure that the discrimination is removed this year.’ So when this election commitment is actually going to be implemented is an issue of concern within the community. As soon as the Prime Minister, Kevin Rudd, produced his 100 days report, I got a copy of it to look through to see if there was anything there that related to removing the discrimination against same-sex couples, but there was nothing. That greatly concerned me, because it meant that this promise that was made by the government in opposition—they said they would remove that discrimination—clearly did not make it to the first 100 days. I went to many forums with the gay and lesbian community in the lead-up to the election campaign, and the Labor members there, such as Tanya Plibersek, the member for Sydney—she lives near me, and we are often at these forums together—made the commitment time and time again. The impression was left with the community that it was a significant priority, yet there was no indication in the document that came about in the first 100 days to say: ‘This is what we are doing. This is the time line. This is what we are planning. This is the way in which we intend to do it.’ And that is what I am asking for today.

I recognise it is a big change, and I recognise that the Human Rights and Equal Opportunity Commission framework was quite narrow. It was about same-sex couples and work entitlements. There are other areas, and I note the report in the Australian on the day of the Sydney Gay and Lesbian Mardi Gras indicated that the Attorney-General’s Department had identified other areas. I understand there to be another 40, so there are about 100 areas of law that we need to change. I recognise that, and I was really thrilled when I first heard that, because it was the first indication I got that there was actually work going on to make the changes. So I thought that was positive. But I think that what is really important is setting out a time line so that people in the community know when these changes are going to occur. The report in the Australian on that particular day indicated that the government was planning on making announcements about a reform package in the May budget. Great. If that is the time line, it would be useful for people to know. But when there are campaigns like the one the New South Wales Gay and Lesbian Rights Lobby are running to say, ‘Make these changes this year’, it would be good if we could have from the government a clear indication of when these changes are going to occur.

I presumed that each time we had a piece of legislation which was one of those identified by the Human Rights and Equal Opportunity Commission as having that discrimination component to it we would see an amendment along with the other amendments being made by the government. In the first sitting week of parliament when the aged care bill was introduced into the House of Representatives, I expected to see the amendments that the Human Rights and Equal Opportunity Commission had recommended in that bill. I moved those amendments before when we were here under the former government. That is how I thought we would see them, but they were not there. There was another bill yesterday that related to superannuation where, again, I thought we would see those amendments. Again, for this bill, they are not there. I am moving this request for an amendment because that is what I thought the process would be—a gradual process over time where each time there was a bill that discriminated against same-sex couples those amendments would be brought in.

That is not the new government’s approach. They are going to do it differently. Could we just have an outline and a framework so that the gay and lesbian community know what the timetable is, know what the proposal is and are able to hold the government accountable for that time line? We have had the commitment, but we have not had delivery or implementation of it. Part of what I am asking for today is a clear time line and framework for how this is going to happen so that there is a plan that the government can be held accountable to.

I want to outline one particular aspect of the request I am moving today. As I say, they outline the recommendations of HREOC, but they also have one other aspect which there has been a reasonable amount of debate about. Where state and territory governments recognise same-sex relationships in a variety of different ways—such as civil unions or the relationship register in Tasmania—this request for an amendment from the Greens ensures that those relationships are also recognised in federal law. There is, for example, the de facto relationship. We stipulate that it does not matter what your gender is if two people have a de facto relationship. We also then go on to talk about what we are calling a ‘recognised relationship’. That is any relationship registered with a state or territory registry of births, deaths and marriages under state and territory law. There is the relationships register in Tasmania that I think came about in 2004 and there is currently debate going on about what form of civil unions or recognition of same-sex relationships will occur in the ACT as well. This request for an amendment allows the changes to the law to operate into the future in recognising that there are states and territories looking at doing these proposals. They ensure that they are caught up in the process of removing the discrimination.

The way that the Greens would like to see this discrimination removed is through a change to the Marriage Act in federal law so that people in same-sex relationships who choose marriage as the way they want their relationship identified will not experience that discrimination. Because of both of the major parties coming together and ruling that out some time ago, we have seen different forms of relationship recognition occurring at a state and territory level.

People have all sorts of different ways in which they want their relationships recognised. This request for an amendment seeks to outline the de facto relationship but also to outline that a recognised relationship is a separate entity. There are many people who have their same-sex relationship or heterosexual relationship recognised under these systems because they do not just relate to same-sex relationships—for example, in Tasmania—and they do not want their relationship to be considered as just a de facto relationship but as more significant than that. They may have had a ceremony and had their relationship recognised and so, rather than just fitting it in with de facto relationships, this request for an amendment would allow their relationship recognition in state and territory law to be recognised in federal law.

That is something which Australian National University senior law lecturer Wayne Morgan talked about in the article I was referring to in the Australian on the day of the Sydney Gay and Lesbian Mardi Gras. He said that couples should be able to access federal entitlements by registering a relationship at a state and territory level, and that is what is provided for in the Greens request. I just wanted to indicate that that is the only way in which there is any deviation from the Human Rights and Equal Opportunity Commission, and it is to encapsulate something that is happening now, which is the relationship recognition registries that we are seeing at state and territory levels.

These are amendments that all of the non-government parties under the former government committed to. Because we have not seen a timetable or an outline about how discrimination will be removed from the bill—and this bill is third time lucky where discrimination could have been removed but has not been—I thought it was appropriate to come in here on behalf of the Greens and move this request for an amendment so that that election commitment from the Labor Party could be honoured. I commend this request for an amendment to the Senate.