Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I rise this evening to provide a contribution to the debate on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I do so in a number of capacities, first of all as the chair of the Senate Standing Committee on Legal and Constitutional Affairs. This provides me with an opportunity, since tabling this report a number of weeks ago, to thank the people who put in submissions to this inquiry and appeared before us. We had public hearings in Sydney, Melbourne and Canberra over three days. I think that, overwhelmingly, the people who appeared before us supported the intention and the content of the legislation. They certainly had gone to a lot of trouble to put their thoughts on paper and submit to us. We had 112 submissions in the course of the inquiry. They were crucial in our getting a view as a committee and charting our way through this piece of legislation, which has become difficult in some areas—and some of those aspects have been raised this afternoon in people’s contributions to the debate.

This also gives me a chance to publicly thank the staff of the committee, who were instrumental in helping us draft this report—particularly Ms Sophie Power, who has now left the committee and gone to be the secretary of another committee; Ms Hanako Jones; and, of course, our secretary, Mr Peter Hallahan. But the whole secretariat of course pitches in and helps deliver good, sound arguments and brings together all of the evidence that we receive, orally and in writing.

This is the first of a tranche of four bills that we will be dealing with through the federal parliament. As Senator Trood said, this finally catches up with what is happening in our social environment in this country and actually recognises that there are same-sex relationships occurring in this country and that laws need to step up to the mark and recognise this.

In June 2007 the Human Rights and Equal Opportunity Commission, now renamed the Australian Human Rights Commission, produced its Same-sex: same entitlements report. This was the report of a national inquiry into discrimination against people in same-sex relationships on financial and work related entitlements and benefits. The report was tabled in the federal parliament, so we are going back some period of time. As Senator Feeney said, in the lead-up to the last federal election the Labor Party stumped up to the mark and committed to actually ending discrimination for same-sex couples in this country. I want to place on record my admiration for Attorney-General Robert McClelland for embarking on what I think is massive reform in this country in this area and doing it swiftly, within the first year of our coming to government.

The Same-Sex: Same Entitlements inquiry conducted by the Human Rights Commission found that at least 58 federal laws relating to financial and work related entitlements discriminated against same-sex couples and their children, that the laws breached the International Covenant on Civil and Political Rights, and that laws that discriminated against the children of same-sex couples and failed to protect the best interests of children in the area of financial and work related entitlements also breached the Convention on the Rights of the Child.

In summary, the Same-Sex: Same Entitlements inquiry recommended that the federal government should amend the identified discriminatory laws to ensure that same-sex couples and opposite-sex couples enjoy the same financial and work related entitlements and that the discriminatory laws identified by the Human Rights Commission should be amended to ensure that the best interests of children in same-sex and opposite-sex families are equally protected in the area of financial and work related entitlements.

The Same-Sex: Same Entitlements inquiry also considered family law matters. Currently, for constitutional reasons, only married couples are able to access the federal Family Court to decide property related matters. The Same-Sex: Same Entitlements inquiry argued that both opposite-sex and same-sex de facto couples should have access to the federal Family Court for property matters. This bill implements that reform. This bill amends the Family Law Act to allow for opposite-sex and same-sex de facto couples to access the federal Family Law Courts on property and spouse maintenance matters. Amendments which the government will be tabling will extend that to a number of other areas.

The bill also makes consequential amendments to other acts that refer to the property and spouse maintenance areas of the Family Law Act so that they now apply to de facto couples. It makes minor amendments to the Family Law Act affecting financial agreements and superannuation splitting between married couples and it creates a new family dispute resolution certificate.

This bill is long overdue. It gives effect to an agreement between the Commonwealth, states and territories made in 2002. You have to wonder why it took a Labor government to introduce these reforms and make a move. The previous government, now the opposition, had five years in which to make this agreement become a reality. I have not heard, in any of the speeches on the second reading from the other side, why they failed to do that while in government. But what we want to do now is move on and recognise that same-sex couples exist in this country, and rightly so, and to ensure that barriers and discrimination affecting those couples no longer exist.

The primary objective of the bill before us is to allow opposite-sex and same-sex de facto couples to access the Family Court on property and spouse maintenance matters. The reforms will provide greater protection for separating de facto couples and will simplify the laws governing them. I will go through the four schedules quickly. Schedule 1 creates a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. This regime is similar to the financial regime that currently exists in the Family Law Act 1976 for married couples. It implements the powers referred by New South Wales, Queensland, Victoria and Tasmania over financial matters arising on the breakdown of de facto couples and it will only apply in referring states. At this stage it does not include Western Australia and South Australia unfortunately, particularly in the case of Western Australia. And of course we do not need referring powers in relation to the territories. That actually happens by virtue of the Commonwealth’s territories powers.

The proposed reforms will apply to de facto relationships that have lasted for two years, or to shorter relationships if there is a child of the relationship or if a party to the relationship has made a substantial contribution to the relationship and it would cause serious injustice not to grant an order. The bill also extends to couples whose relationships both satisfy the definition of ‘de facto relationship’ in the references of power and are registered under state or territory relationship registration legislation. Schedule 2 contains consequential amendments to other related legislation. These pick up references to property settlements and financial matters that apply currently only to married couples and extend those references so that they also apply to de facto couples. Schedule 3 makes several amendments in relation to binding financial agreements between married couples. For example, such agreements can include persons other than the married couples, such as a parent of one of the spouses or a family company. The amendments also simplify the requirements for splitting superannuation interests when one spouse dies. Schedule 4 creates a new type of certificate which can be given to parties by a family dispute resolution practitioner where it becomes apparent that it would be inappropriate to continue the family dispute resolution session. Schedule 4 also makes minor drafting corrections to the Proceeds of Crimes Act.

This bill is in fact the commencement of watershed reform in this country when it comes to dealing with opposite- and same-sex de facto couples and their access to the federal Family Law Courts on property and maintenance matters. The bill is consistent with the government’s policy not to discriminate on the basis of sexuality and it offers de facto couples’ access to the federal Family Law Courts, which have experience in relationship matters and have procedures and dispute resolution mechanisms more suited to handling family litigation for determination of financial matters when a relationship breaks down.

I want to go to a number of issues that have been raised by a number of speakers this afternoon. The first, of course, is the claim and the hesitation about the protection of marriage. At no time in this bill, or in the other three bills that you will see come before this chamber to end this discrimination, is the Marriage Act amended. At no time is there any intent to actually change the intent, the content, the reverence or the importance of marriage in this country. There is no amendment to the Marriage Act before this parliament. There is no attempt to either water down the relationship in the marriage, or the legal, binding nature of a marriage or to change that in any way at all when it comes to dealing with this situation. This was raised a number of times in our public hearings by a number of witnesses, and it goes to the impact on the status of marriage. Mr Graeme Innes, who is one of the human rights commissioners, summed it up very well in a public hearing when he said:

... in no way does this legislation undermine or threaten the institution of marriage. The level of keenness and desperation that I heard from a range of the same-sex couples—

and he is referring to their inquiry into these issues—

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.

In response to the committee’s questions as to whether the institution of marriage continues to hold people’s affection despite increases in de facto relationships, the Australian Institute of Family Studies told the committee that its research showed that marriage is still viewed favourably. So, as I said, there is no intention at all to undermine the concept of marriage or the relationship. The committee noted that section 43(a) of the Family Law Act, which is not being amended in any way by the bill, provides that the family courts must have regard to ‘the need to preserve and protect the institution of marriage.’

What we are simply seeking to do here with this tranche of legislation is to actually recognise that in this day and age in this country people fall in love with members of the same sex. They have a right to do so, and they do. There may be some elements of our society that do not like or tolerate that but it occurs and it happens and we should be, where we can, ensuring that when people make that choice in their life there is no discrimination. I want people to perhaps think about the impact that this has on families when a son or a daughter chooses to identify as a lesbian or a homosexual and seeks to fall in love with a member of the same sex. As a family and as a parent I am sure that you would want that child—no matter who they choose to love in their life—to have the same rights and access as other members of our society. Abhorrent as it may be for some members in this chamber and in this parliament to accept that, the fact is that it happens. And the fact is that these people are very happy. The fact is that these people choose to live with their lifelong friend and become lifelong partners. The fact is that there are some elements in this society, including myself, who believe that these people ought to have the right to marry. But what is before us now is the matter of actually looking at the rights of these couples when those relationships do not work out the way they would want them to, particularly when there are children involved.

As a committee, we also looked at the issue of de facto relationships. Many submissions were particularly supportive of the inclusion of same-sex couples in the definition of ‘de facto relationship’ on the basis that it would remove discrimination against same-sex couples in the area of family law and therefore implement aspects of the HREOC same-sex inquiry. Again, Mr Graeme Innes stated that HREOC supported the definition of de facto relationship contained in the bill ‘because it brings equality to same-sex and opposite-sex couples’. As I noted earlier, in HREOC’s view the definition of ‘de facto relationship’ in the bill is essentially the same as the model definition recommended in HREOC’s own report, the Same-sex: same entitlements report.

Finally, I want to turn to the recommendations of the committee. There is an issue with section 60H of the Family Law Act, although I note that the government will be proposing amendments to change this, as identified in Mr McClelland’s press release of a number of weeks ago. We noted that this area of the legislation needed to be dealt with further. I think that is one benefit, perhaps, of Senate inquiries and one of the reasons why Senate inquiries can sometimes do a great job in improving and amending legislation.

As the Gay & Lesbian Rights Lobby from New South Wales pointed out when they wrote to the committee following the tabling of our report, they support the five recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs. One of those was in relation to amending the definition of ‘child of a de facto relationship’ in the proposed section 90RB of the bill and the parenting presumptions in section 60H of the Family Law Act. We had suggested as a committee that those be amended:

… to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act …

That then goes, of course, to access rights and child support rights. As the Gay & Lesbian Rights Lobby pointed out:

An estimated 20 per cent of lesbian women have children, and the Committee recommendations will ensure these children gain important protections and rights via the Family Court and child support scheme.

One area of particular significance is Section 60H of the Family Law Act. Currently, co-mothers are not recognised as a legal parent for the purposes of child support obligations and family law. The Family Law Act only recognises a consenting “husband or male de facto partner” of the birth mother (of a child born through assisted reproductive technology) as a parent.

This means a birth mother cannot pursue child support payments from the co-mother; nor can the co-mother be recognised as a parent in proceedings before the Family Court. The recommendation of the Senate Committee is to simply refer to a “husband or de facto partner.” This reflects similar provisions in NSW, WA, ACT and NT—

and those proposed for Victoria. I note that the minister has picked up this recommendation and that there will be amendments in relation to this as we proceed with the debate on the bill.

I think this is watershed reform when it comes to dealing with this section of our society. As I said, it is the first of four pieces of legislation that we will be dealing with in coming days and that will be passed by this federal parliament. I think it signifies a shift in the maturity of this parliament to recognise same-sex couples and to acknowledge and recognise the work that the Australian Human Rights Commission has done in keeping this drawn to our attention and highlighting the need to end this discrimination. It is with some pleasure that I commend this bill to the Senate.