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

I rise to speak to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. This bill seeks to eliminate discrimination against same-sex couples and the children of same-sex relationships in Commonwealth legislation that provides for reversionary superannuation benefits upon the death of a scheme member, and in related taxation treatment of superannuation benefits.

The Greens support the removal of discrimination in all areas of federal law, and we do not want to see the Same-Sex Relationship (Equal Treatment in Commonwealth Laws-Superannuation) Bill 2008 delayed any further. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed immediately.

The Greens have a strong track record of defending the rights of lesbian, gay, bisexual, transgender and intersex people. We believe that all members of our community are entitled to equal treatment before the law and by the community. There has been discussion and public debate about the removal of same-sex discrimination for decades. The time has come to take action and make this happen.

The first stage of the Rudd government’s election promise to remove discrimination against same-sex couples in more than 100 pieces of Commonwealth legislation follows a 2007 Human Rights and Equal Opportunity Commission report which highlighted that at least 20,000 same-sex couples experience systemic discrimination daily. The Australian Greens believe that freedom of sexual orientation and gender identity are fundamental human rights. The need for acceptance and celebration of diversity, including sexual orientation and gender diversity, is essential for genuine social justice and equality.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 amends the Commonwealth civilian and military defined benefit superannuation schemes, the parliamentary, judicial and statutory legal officer pension schemes and the pension scheme for the Governor-General. As I have already outlined, while the Greens welcome the introduction of this long-overdue piece of legislation, the issue of providing equality to same-sex couples in superannuation entitlements has been a subject hotly debated in this place for more than a decade—long before I was here—yet only now are we seeing any real movement on this issue.

The Greens do not think people should be discriminated against on the basis of their sexuality and have some serious concerns which we believe need to be addressed before universal equality is achieved for same-sex couples and their children. In particular, along with other key witnesses we are concerned that, while the government’s proposed legislation will provide superannuation entitlements for same-sex couples who have their money tied up in Commonwealth super schemes, for those who have their money tied up in commercial super schemes the discrimination may very well continue. I should point out here that almost 90 per cent of Australians have their super tied up in private schemes rather than public schemes, so we are only guaranteeing justice for 10 per cent of the population.

Where a superannuation fund provides for recognition of an opposite-sex relationship as a de facto relationship, we believe this should be non-discriminatory. While this bill specifically legislates for judges, veterans and Commonwealth public servants, it allows private superannuation firms to remove discrimination if they choose to yet it does not actually mandate them to do so. While the Greens are indeed pleased to see the government commit to its election promise by removing same-sex discrimination in all areas of law, we are disappointed to see that this legislation does not specifically mandate private superannuation firms to stop discriminating against same-sex couples—considering that around 90 per cent of Australians have their super tied up in private funds.

The Superannuation Industry (Supervision) Act 1993 regulates private superannuation schemes. Where private superannuation trust deeds refer directly to the definitions outlined in the SIS Act, they will have the immediate effect of including same-sex couples. Yet, as I have outlined, this legislation, in its current form, does not require all trust deeds to incorporate these definitions. The Greens believe that in order for full equality to be realised for same-sex couples with respect to this legislation, the Superannuation Industry (Supervision) Act should mandate that where an individual superannuation fund recognises opposite-sex de facto couples they must also recognise same-sex de facto couples. We would encourage the government to stand by its commitment to remove discrimination against all same-sex couples, whether they work in the private or the public sector.

The Greens also welcome the new definition of a ‘couple relationship’ contained within this bill. We particularly support the explicit reference to same-sex couples in the definition of partner and the addition of registration of a relationship as evidence of the existence of a couple relationship. As I outlined in the additional comments to the chair’s report into this bill, the Greens particularly support point number 17 in HREOC’s submission, which states:

The combined effect of replacing the term ‘marital relationship’ with ‘couple relationship’ and replacing the phrase ‘husband and wife’ with ‘partner’ ensures the equal treatment of same-sex and opposite-sex relationships.

This is in fact what we are here to talk about—removing all forms of discrimination.

I would like to outline that the Greens do not support the committee’s recommendation that the definition of ‘couple relationship’ in the bill be amended to read ‘marital or de facto relationship’. We believe that if the government were to proceed with this recommendation, its aim of achieving equality for same-sex couples is an absolute furphy and would not be achieved. Further to this, the Australian Greens support the recommendation put forward by the Australian Coalition for Equality that the recognition of registered relationships needs to be completely separate from the distinct recognition of de facto relationships. It is for this reason that the Greens believe that an umbrella term of a ‘couple relationship’ be adopted to ensure the courts do not treat married, registered or de facto couples differently, in that each will have their own unique criteria but will be provided with equal couple relationship entitlements.

Another issue that was raised during the committee inquiry into this bill was to ensure that children born into same-sex families have the same rights and entitlements to superannuation benefits as children born into opposite-sex families—a basic right for children that is currently denied. The bill expands the changes to the definition of ‘child of a relationship’ by adding the concept of a child who is the ‘product of a relationship’, which caused significant confusion during the inquiry. Many witnesses claimed it was ugly language without any legal precedent. During the inquiry in Sydney, Professor Jenni Millbank suggested to the committee that the ‘product of a relationship’ concept was attempting ‘to do too many things while pretending it is not doing very much and that the ensuing confusion and uncertainty will deprive the people of their rights rather than grant them rights.’

It is for this reason that the Greens, along with other key witnesses, have concerns about the terminology ‘product of a relationship’ being used to define a child. While we support the need for a more concise and legally tested definition of a child, the Greens do not support the committee’s recommendation that a review be conducted to determine the necessity of a definition to be included within this bill. We therefore believe that the terms used to define parents and their children be simplified wherever possible in this and similar legislation to ‘parent’ and ‘child’—because that is precisely what we are talking about—that it be applied consistently to ensure children across Australia are equitably included and the distinction between parents, co-parents and stepparents are not inappropriately or unnecessarily blurred.

The Greens support the removal of discrimination in all areas of federal law, and we do not want to see the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill delayed any further. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed immediately. It is not good enough to suggest that a person is half pregnant. You are either pregnant or you are not. If we are to remove discrimination, we should be doing it across the board.