Guy Barnett (Tasmania, Liberal Party) Share this | Hansard source

I stand today to speak to the bill before the Senate, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, and also as the deputy chairman of the Senate Standing Committee on Legal and Constitution Affairs that inquired into the bill. At first instance I would like to express my thanks to the secretariat for the assistance provided in a short amount of time under considerable pressure to pull this report together. As senators know, the report of the committee was tabled in August—just a couple of months ago—but it is part of a package of four bills that are currently before the parliament that deal with the government’s legislative package which seeks to implement equal treatment of same-sex relationships in Commonwealth law.

Before I specifically address the bill before the Senate, the de facto amendment bill, I want to highlight to the Senate and indeed to others that the government appears to have displayed and demonstrated an extraordinary degree of incompetence and behaviour bordering on recklessness in its handling of these four bills. First of all, the definitions used in these bills of ‘couple relationship’, ‘de facto relationship’, ‘child’ and ‘parent’ vary across the four bills. And there are many instances where they are mutually incompatible and contradictory. Specifically in the four bills, you have three definitions of ‘de facto’ that are different. So here we have a government which, for whatever reason—whether negligence, incompetence or some other reason—has introduced into the parliament four bills with three different definitions of the word ‘de facto’. This was of course highlighted at the various Senate committee inquiry hearings that we had—particularly when we had before us as witnesses the Attorney-General’s Department, but it was certainly highlighted by other witnesses as well. Of course, we hope that these matters will now be addressed. I would also refer to the definition of child as ‘a product of a couple relationship’, which has attracted significant adverse comment from community groups and experts on all sides of the issue.

Just as a reminder, the four bills that I am referring to are the Evidence Amendment Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the bill before us, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. So there are four bills relating to the same objective—to provide equal treatment of same-sex relationships in Commonwealth law—with different definitions which are contradictory. It highlights negligence at best and perhaps recklessness at worst with respect to the behaviour and the administrative arrangements of the government.

While the House of Representatives was debating and ultimately passing without amendment the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, which included this problematic term, the government circulated in the Senate proposed amendments to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, which used an entirely different approach to the definition of child in Commonwealth law. So we have had the government backing contradictory approaches to the definition of the child-parent relationship simultaneously in two chambers of the Australian parliament.

The government committed to the Senate Standing Committee on Legal and Constitution Affairs, in a public hearing and subsequently as well, that proposed amendments to both the same-sex bills currently before the parliament would be forthcoming and that they would be provided to our committee by 8 October—last Wednesday in fact. Well, of course, we are standing here today and there are still no amendments before the Senate. In fact, they have not been distributed. The committee has not received those amendments. It is an inappropriate administrative arrangement and it is an inappropriate way to deal with legislation. I am specifically referring to the amendments to the two same-sex bills, but of course there is a package of four bills and the de facto bill before us is just one of those four.

I wish the government had got it right in the first place, but of course there is always room for improvement. I hope that the government sees the error of its ways and perhaps acknowledges the concern, dismay and annoyance not only of senators on this side but, I think, across the board and also, in particular, the witnesses, who expressed their concern about the lack of time to prepare adequately to respond to the very lengthy bills, in particular 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 2008.

Senator George Brandis has outlined the coalition position but, more generally and from a bigger picture point of view, I want to put on the record the coalition’s view as expounded by Dr Brendan Nelson in his speech on the second reading of the Same-Sex Relationships (Equal Treatment In Commonwealth Laws—Superannuation) Bill on 4 June 2008. He said that while supporting the bill in principle:

… the opposition will not support—in fact we will resolutely oppose—any measure which might open the door or otherwise give legitimacy to gay adoption, gay IVF or gay surrogacy.

A coalition amendment to the bill then stated in part:

… that the Opposition will refer the bill to the Senate Legal and Constitutional Affairs Committee with a view to ensuring that, in removing discrimination against people in same-sex relationships:

(a)  the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise …

That is something that I strongly support, and I thank our former leader Dr Nelson for expressing those views. I want to put on the record my strong support for those sentiments, for those principles, and to highlight that.

Focusing a little bit more closely on the bill before us in the Senate, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, as was noted in our Senate committee report:

The primary purpose of the Bill is to amend the Family Law Act to provide opposite-sex and same-sex de facto couples access to the federal family law courts in relation to property and maintenance matters.

Currently, same-sex and opposite-sex de facto couples can access the federal Family Court to resolve child-related matters. However, financial and property arrangements between separated de facto couples are subject to state and territory law, which varies between jurisdictions.

The report notes that that was explained by the Attorney-General in his second-reading speech, which I acknowledge and note. So the bill attempts to address those issues by enabling the federal Family Court to deal in the one proceeding with both financial and child related matters arising from separated de facto couples.

I also want to note another point. This is an important point because it relies on the referral of powers from the states. It gives effect to a decision of the Standing Committee of Attorneys-General in November 2002. Since then, for example, New South Wales has enacted the Commonwealth Powers (De Facto Relationships) Act 2003; Victoria, Queensland and Tasmania have legislated in similar terms; and, as has been noted by Senator Pratt and in the Senate report, Western Australia has its own Family Court. So there is that requirement that there be a referral of powers. I have referred to the definition of ‘de facto’. There are three different definitions in these four different bills before the parliament at any one time.

I wanted to highlight the report before the Senate, in particular page 15, where I asked some questions of the Australian Institute of Family Studies. In response the AIFS informed the committee:

The probability of a marriage ending in divorce appears to have been increasing … 33% of all marriages that began in 2000-2002 could be expected to end in divorce, compared with 28% of all marriages that began in 1985-1987. However, the estimated expected duration of marriages that end in divorce has increased … [A]mong men who obtained a divorce from their first marriage, the average expected duration of their marriage increased from 11 years for those who married in 1985-1987 to 14 years for those who married 2000-2002.

Now, we have been feeling a little gloomy and perhaps a little down in the mouth about family matters over the last few years as we have entered the 21st century. Well, there is some good news to report about the duration and the stability of marriage. In contrast, the Institute of Family Studies informed the committee:

… the median duration of a cohabiting relationship for those who separated was around 2 years (excluding first cohabitation following marriage).

The committee also noted:

… data from the Australian Bureau of Statistics also shows that, for those people who got married in 1985–1987 and 2000–2002, the expected average duration of their total married life remained unchanged at around 32 years.

The report notes that some of the conclusions of the AIFS were that:

• ‘cohabiting relationships are far more likely to dissolve than marriages’; and
• ‘regardless of the period in which cohabitation or marriage began, the likelihood of a cohabiting relationship ending in separation within five years was at least three times the likelihood of a marriage ending in divorce within five years …

There are some very important points there. I think it is worth noting and putting on the public record that marriage is an institution worth protecting. Marriage is a unique institution worth supporting. As a government and as a parliament we should do everything in our power to ensure that this wonderful institution is supported, is encouraged, is backed up in every way, shape and form. The bill before the Senate provides an opportunity for us to stand and express our views on the importance of the sanctity and uniqueness of marriage and its vital position in the Australian community today. It provides the umbrella under which children can be nurtured and loved and can grow and prosper—indeed, as a result, families can then prosper and grow and be nurtured and likewise our community. So I wanted to place on the record my strong support for that.

Indeed, those points were made by a number of witnesses to our committee, including Family Voice Australia and the Australian Christian Lobby. I want to particularly thank Professor Patrick Parkinson for his evidence to our committee—it was very extensive, very thoughtful. He did express concerns about the lack of time he had to prepare adequately. He indicated that if he had had more time he could have been more diligent in the preparation of his submission. He is a professor of law at the University of Sydney. I want to put on the record my sincere thanks to the professor for his wonderful work.

In terms of the bill’s consistency with other federal legislation, I have referred to the inappropriate behaviour and administration by the government concerning definitions that differ, particularly with respect to de facto relationships, but I want to now turn to the issue that has been addressed by Senator Brandis and other senators, which relates to the presumption of who are the parents of a child born as a result of assisted reproductive technology. Section 60H of the Family Law Act provides for and makes presumptions about who are the parents in those circumstances. It effectively recognises a birth mother and the male partner of a birth mother as parents. However, a female partner of the birth mother, a lesbian co-mother, and a male partner of the birth father, a gay co-father, are not considered to be parents. I am putting on the record my position on this, which is that I am disappointed. I do not support access to IVF for single women and lesbians. I realise that that occurs in Australia today, but I think the states should have the opportunity to express their views and allow support for funding for IVF services for married couples and de facto couples of the opposite sex.

In Australia today, couples of the same sex are allowed this service. It is one of the consequences of the government’s position and policy that it is allowed and, as a consequence of that, children are in those situations. We need to act in the best interests of the child. That is why recommendation (1) of the report refers to the merit of amending section 60H. This will ensure that the best interests of the child are protected. At all times—and I want to stress this very strongly—coalition senators have wanted to make it clear, as set out in recommendation (1), that the committee should recognise that the interests of the child must be of paramount consideration. Unfortunately, we did not have enough time to consider in greater detail the appropriate form of the amendment. I am pleased that Senator Brandis has flagged that particular amendment for senators to consider. A government amendment has been circulated, and it will no doubt be considered in committee. There will be important issues that other senators will need to consider about the amendment and the parenting presumptions that will flow from it to people in same-sex relationships, particularly with respect to ART or IVF arrangements.

The second amendment relates to concerns expressed in the report by Liberal senators about the position of multiple relationships and where a de facto relationship can exist. Currently, the bill provides that a de facto relationship can exist even if one of the persons is legally married to someone else or is in another de facto relationship. Some people expressed extreme concern about this. I would like to refer to the Hon. Bronwyn Bishop and others who have expressed publicly their concerns about the condoning of polygamy if this legislation were to go through as is. To avoid those concerns, we propose an amendment, which Senator Brandis has referred to, that would allow the courts to determine whether or not there are multiple relationships involved. That is a matter that they can sort through and resolve themselves. There are also concerns that, if we go down the track proposed by the bill as it currently stands, it will undermine the significance and distinctiveness of marriage, which has consistently been shown to be the most stable and enduring form of heterosexual union.

The proposed amendment to section 60H, which is item 5 of the proposed new schedule 3A of the bill put forward by the government, would effectively give parental status to a lesbian partner of a woman who undergoes an artificial conception procedure—this includes artificial insemination and IVF. Item 7 of the proposed new schedule 3A of the bill, as put forward in the government amendment, would introduce a new section 60HB to the Family Law Act. Under the act, this would give parental status to any person for whom an order has been made under a prescribed surrogacy law of a state or territory. I make the point that there has been no inquiry into surrogacy by a Senate committee and that it would be inappropriate for the Senate to adopt this amendment in the absence of any such inquiry. In fact, the Standing Committee of Attorneys-General is currently considering uniform national laws on surrogacy, but the initial consultation paper for this process has not yet been issued. So I cannot see why we should be going down that track at this stage. It is indeed a concern.

In summary, the bill before us clearly needs to be addressed. Some amendments have already been foreshadowed. I think the government has some lessons to learn about administrative matters. Those points have been well made during the last few minutes, and they have also been made by other senators in this place. I thank the Senate.