Russell Trood (Queensland, Liberal Party) Share this | Hansard source

It is a pleasure to rise this afternoon and speak to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This is the first of several bills that will result in some important reforms in family and relationship law in Australia. I think it is fair to say that this is a case of a legislature catching up with some significant changes in Australian social behaviour, especially in the way we live together, in the way we constitute families and relationships, and in the way we protect the interests of our children. As Senator Brandis has said, the opposition supports the general thrust of these reforms. It recognises the need for change, it acknowledges that community values are changing, and it accepts that, to avoid injustices and unfairness, the law must change to reflect these situations.

To the extent that they aim to end discrimination, I am especially supportive of the bill. But there is a caveat on the opposition’s support for reform, certainly on my personal willingness to support it, and that relates to the institution of marriage and to the treatment of children within the bill. Like many, perhaps a majority in this chamber, I see marriage as an institution constituted between a man and a woman—people of opposite sex. I do not support gay marriage nor do I support legislation that might not protect the interests of our children, who are such a valuable resource to our community. Looking at the bill, I was very anxious indeed to see that neither of these principles were offended—the principle of the institution, as I believe it, of marriage and the rights of our children. No doubt some will say that this is precisely what this bill does, that it goes too far, it might be argued, in compromising the values that underpin marriage and that it goes too far in undermining the uniqueness of this very important social institution. I think that this perspective underscores the wide spectrum of views that exist on this issue within Australian society. My own view is that the bill avoids this danger, and I think this is generally the view of the Senate Committee on Legal and Constitutional Affairs, which reported on the bill.

The bill itself, as the Attorney-General said in his second reading speech, gives effect to an agreement between the Commonwealth, the states and the territories to refer powers in relation to the consequences of the break-up of de facto relationships. The existing situation is clearly unsatisfactory. There is shared jurisdiction between the Commonwealth and the states and territories. Among the states, the rights enjoyed by the parties to de facto relationships are confusingly different and where de facto relationships break down couples can find themselves dealing with issues related to children in a federal court and issues related to property in a state court or vice versa. This is expensive and it is highly inefficient. The bill will do away with this confusion. It will bring matters within the jurisdiction of the federal court system and it will enable family courts to deal at the same time with all relevant matters of property and the needs of children.

There are other significant reforms in the bill. It aims to treat same-sex couples on a similar basis as opposite-sex couples for certain family matters and to apply similar principles to de facto couples as those in marriages when break-ups actually occur. Most witnesses before the Senate committee accepted the need for these reforms, but, as the report of the Senate committee makes clear, some who appeared before it to give evidence had a different view. But, I think, in general, the weight of evidence was in support of the reforms that the bill seeks to achieve.

There are many issues raised by the bill and I will not try and canvass all of them in my remarks; perhaps I will just mention three important matters. The first of these is the definition of de facto marriage, which has been touched on by Senators Brandis and Barnett. The Senate committee examined this bill at the same time as it examined the Evidence Amendment Bill 2008. In doing so, this exposed an important issue—namely, the definition of de facto marriage. Both bills have definitions but curiously they are different from each other. The essential point of difference is over the criteria a court has to take into account to determine whether a de facto marriage actually exists. The de facto bill proposes to insert into the Family Law Act a section with nine probative circumstances for the court to take into account. By contrast, the Evidence Amendment Bill proposes to amend the Evidence Act with regard to a definition of de facto marriage and require the court to have regard to only seven probative criteria. Issues included in the de facto bill but omitted from the evidence bill are the existence of a sexual relationship and whether a relationship was registered in a state or territory. Two bills drafted by the same department produced two definitions of the same institution—namely, de facto marriage.

I can be tolerant of seeming illogicalities in legislative drafting when there is a compelling issue of public policy behind it, but to be persuasive here the logic really requires some herculean feats of legal argument. In the committee, Senators Brandis and Barnett and I sought to tease out from officials what this logic might be. The futility of this endeavour is recorded in the Hansard and indeed in the committee’s report. Try as they might, officials could not give what I at least regard as a persuasive argument for the two inconsistent definitions. Perhaps one should not blame the public servants because, presumably, this was a matter of government policy. Whatever the reason, officials were not able to provide me with a plausible case for these differences. I cannot see any persuasive reason for the differences in the definitions.

As if to underscore the bureaucratic restlessness of mind on this matter, we now have a third definition. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill, also introduced into the parliament a couple of weeks ago, proposes to amend the Acts Interpretation Act to add yet another definition of de facto relationship—where there are not seven nor nine probative criteria but eight criteria. One bill has nine, another has seven and a third splits the difference and has eight as indicative of the relationship. My simple view is that a relationship is or is not a de facto relationship and the legislature should encourage the court to determine that fact by reference to the same criteria. As a legislature, we should not be inviting the courts to apply three different definitions, depending on circumstances. The answer would seem to be to extend a definition in the Acts Interpretation Act to all circumstances where it is relevant to refer to a de facto relationship.

The second matter that I wanted to raise is the equivalence of marriage with de facto marriage. The evidence before the committee was clear. The bill has provoked community debate about whether marriage should be regarded as much the same as de facto marriage for the purposes of dealing with matters related to the break-up of the relationship, and witnesses came to this issue in very different ways.

Some argued that, by extending to de facto marriages the same rights as marriages, it would actually undermine marriage. It was suggested that there were strong reasons to maintain the distinction, not least because marriage is the best environment for raising children—a proposition which I strongly support. From another perspective, equating the two resulted in the removal of free choice from individuals. De facto couples were being forced into accepting a set of rules relating to an institution—that is to say, marriage—which, seemingly, they were anxious to avoid. Yet another perspective put the proposition that de facto relationships had a specific social purpose: they allow some people to test their compatibility without the burden of responsibilities of marriage. This was especially said to be true of young people. They do not want to be forced into marriage until they are ready. In rebuttal of this point, some witnesses were inclined to say that this was precisely what public policy should be aiming to do—in other words, reinforcing the idea of commitment amongst people. Another line of argument was that couples had the choice to opt out of the Family Law Act by making a binding agreement. On the other hand, the question was raised: would they know whether this option was actually available? Finally, there was an argument, on an equivalence principle reflected in the bill which proposed to protect the weaker party to a de facto relationship, that that in itself was a desirable matter of social policy.

Not surprisingly, the merits of these arguments depend largely on the nature of one’s moral universe and the values that inform it. I can see merits in some of the arguments and rather less in others. On balance, I am inclined to think that the drafters of the bill have the balance about right. But community practice, once the bill has been passed and the new law is in operation, will no doubt determine whether I am correct. In the meantime, I am not persuaded that marriage as an institution is diminished by the bill, and I can see that there is a compelling need to end the considerable confusion of laws that exist around this area of behaviour.

The third proposition I wish to raise is the matter of the child of a de facto relationship, which has been referred to by other speakers and particularly by Senator Brandis and by Senator Barnett. There is a serious problem with this matter in the bill. The main problem revolves around section 60H of the Family Law Act in relation to de facto couples. Senator Brandis in his remarks referred to the fact that it serves, or seems to serve, to homogenise marriage and de facto marriage. The result is undesirable, and, according to some witnesses and the body of evidence before the committee, it may result in the law becoming convoluted, unduly complex and even illogical and iniquitous.

Clearly, there is a need to rethink this provision of the bill. That view is reflected in recommendation 2 of the committee’s report, where a comprehensive general review of terms such as ‘de facto’, ‘couple’, ‘child’ and ‘parent’ is suggested. But it now seems that the recommendation of the committee may have been somewhat overtaken by events. While I think the review is still desirable, the issue has become more urgent as a consequence of the reforms envisaged under some of the other family legislation now before the Senate—namely, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008.

There are two issues here. First, together the three bills have the potential to result in a very confused and convoluted body of law with regard to the definitions of a child, of a parent, and of other matters within the area of family law. That could not only result in injustice to some members of the community, not least children, but it could be very expensive justice. The second issue is that, taken together, the three bills and the definitions traverse important moral and ethical ground and make assumptions on issues where we have barely had any public debate, most notably on the issue of surrogacy, and I note that Senator Barnett spoke to that issue specifically. It is my belief that, as a legislature, we have a responsibility to address these issues before we give these reforms the authority of law, and I trust that the government will give serious thought to the ways in which this can be done before the legislation passes through the parliament. In this context, I commend to the Senate Senator Brandis’s amendments because I think they contribute to the task of clarifying the intent of the bills.

Finally, these bills contribute to the task of ending discrimination based on sex. They catch up with social change. They rectify some confusing jurisdictional issues between Commonwealth and state courts, and they offer a more rational way of dealing with the affairs of de facto couples on break-up. Given the aims of this legislation, I commend these bills, and the reforms that the opposition has placed on the record, to the Senate.