Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

I rise in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. As the first stage of the Rudd government’s election promise to remove discrimination against same-sex couples in more than 100 pieces of legislation, the de facto financial bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs, along with the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Evidence Amendment Bill 2008.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 amends the Family Law Act 1975 to provide for opposite-sex and same-sex de facto couples to access the federal family law courts on property and maintenance matters. The main benefit of the legal changes essentially allows de facto couples to access the Family Court rather than the more expensive and time-consuming state supreme courts. The bill also amends financial agreements between married couples and superannuation splitting, as well as providing for certificates in relation to family dispute resolution. This legislation requires states to refer their powers to the Commonwealth for the purpose of accessing the Family Law Court. While the majority of states have passed legislation referring their powers, we note that the federal Attorney-General is still in discussion with his counterparts in South Australia, Queensland, and Victoria, where these are yet to occur.

During the course of the inquiry, a number of individuals and organisations expressed concern over the definition of a ‘parent’, in particular section 9ORB(3) of the de facto bill and its relationship to section 60H(1) of the Family Law Act. Section 60H provides for the presumption of parentage where a child is born through assisted reproductive technology. Only the male partner of the birth mother is considered a parent under this section. The provision—60H—hinges off who the partner of the birth mother is. The key issue is that the de facto partner of the birth mother needs to be gender neutral, not that the birth mother needs to be gender neutral. Essentially, the concern with this section is that you would need to make section 60H`gender neutral in order to appropriately cover the children of lesbian couples. Yet, while the use of gender neutral language is needed in order to capture all parents, we would need to see a complete overhaul of the current surrogacy legislation to ensure uniform surrogacy laws across the board.

The Attorney General’s department, in response to questioning from the committee during the Canberra hearing, stated:

… the Commonwealth’s position is that it is currently considering a request by state and territory ministers to consider amending subsection 60H of the Family Law Act to allow children of same-sex relationships to be recognised as a child of the relationship for the purpose of the section.

The Greens fully support the five recommendations proposed by the committee to strengthen this bill. In particular, we strongly support recommendation 1, which seeks to change the definition of a ‘child of a de facto relationship’ in proposed section 90RB of the bill and the parenting presumptions in section 60H of the Family Law Act 1975 to be amended to allow children of same-sex relationships to be recognised as the child of the relationship for the purposes of the entire Family Law Act 1975. We are pleased to see the government amendments circulated last week reflect the concerns raised throughout this inquiry.

As I mentioned earlier, while we would need to see national uniform surrogacy laws implemented to ensure that all same-sex partners are recognised equally, we are particularly pleased with the addition of 60HB, which deals with children born under the current state surrogacy arrangements. We heard numerous stories throughout the inquiry which outlined concerns with children born under surrogacy arrangements and how they would be protected under this piece of legislation. In particular, HREOC outlined within their submission their concern that while:

... the new section 9ORB or an amended section 60H will include all children born to lesbian couples … it will not include children born to gay couples through surrogacy arrangements.

I acknowledge that surrogacy arrangements are extremely rare in Australia as all states other than NSW and the ACT either prohibit surrogacy arrangements or limit access to Assisted Reproductive Technology that is necessary to fulfil a surrogacy arrangement, but it is an important step towards a recognition of surrogacy in federal law—a debate I hope to see on this government’s radar sooner, rather than later.

The Greens were pleased to see recommendation 4 of the chair’s report incorporated into the government’s amendments, which:

… recommends that the transitional provisions in the Bill be amended to enable de facto couples to 'opt in' to the new regime by mutual agreement, subject to appropriate safeguards, where their relationship breaks down before commencement and their property or maintenance matters have not been finalised before commencement.

It is pleasing to see this ‘opt-in’ clause inserted into this legislation to alleviate any problems that may have arisen with the original drafting of this legislation.

I was also concerned about claims, made throughout the inquiry, that this bill would both undermine and devalue the institution of marriage by extending similar rights to heterosexual and same-sex de facto couples. This claim was refuted by many witnesses—in particular, Reverend Elenie Poulos, from the Uniting Church of Australia, who clearly stated that she did not believe the inclusion of same-sex couples in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill would undermine marriage in any way.

Mr Graeme Innes, AM, the Human Rights Commissioner, from HREOC, also rejected the dialogue that suggested this legislation undermines or threatens the institution of marriage. During evidence provided to the committee in Melbourne, Mr Innes stated:

The level of keenness and desperation that I heard from a range of the same-sex couples who wish to become married and join that institution would suggest that in fact it is supported by those views rather than undermined by them.

The Australian Greens believe that freedom of sexual orientation and gender identity are fundamental human rights. The acceptance and celebration of diversity, including sexual orientation and gender diversity, is essential for genuine social justice and equality. We support the legalisation of marriage and de facto relationships between two people, irrespective of their sex and gender identity and whether or not they cohabit. We are talking about an issue of human rights and social justice, and the Greens have always been at the forefront of calls for greater equality for all couples, regardless of their sexuality or gender.

Changes in federal legislation to reflect the political will of society are long overdue. The Australian Greens will be supporting the removal of discrimination in all areas of federal law. We do not want to see this legislation—or the forthcoming Evidence Amendment Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008delayed any further. The time for action has come. I understand the coalition have indicated their support for the intent of this bill, and I would encourage the coalition senators on my right to cooperate in the speedy passage of this important piece of legislation. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed as quickly as possible. I commend the bill to the Senate.