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

I rise tonight to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. As the Deputy Chair of the Senate Standing Committee on Legal and Constitutional Affairs, which inquired into this bill, I want to express my severe concerns regarding this bill. Together with my colleagues, Liberal Senators Trood and Fisher, I have expressed additional comments with respect to this particular bill in the committee’s report. The fact is that this bill is flawed, and that has been confirmed by the government. The government has only today tabled 18 pages of amendments to this bill, and we are expected to express a view in favour of or against the bill. In fact, government senators have said in this place that this bill should be passed. How on earth can they possibly say that, when they have not even reviewed and considered the government amendments that were tabled just a few hours ago? How is that possible? The bill is flawed. It is now up to the Senate to consider the amendments, and it will take time to properly, diligently and professionally consider those amendments. That is very important.

Before I look at the substance of the bill, I want to address the process. It is a flawed process. The bill was referred to our Senate committee on 18 June 2008 for inquiry and report by no later than 30 September. On 4 September, a similar bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, was referred to the committee with a concurrent reporting date. We had two public hearings. The fact is that the committee was told by the Attorney-General’s Department, under questioning by me and indeed other coalition senators, that they were in fact considering amendments to this bill—in the middle of a committee of inquiry! You can imagine how the senators on that committee felt. Goodness, gracious me! We were expected to express a view supporting or not supporting this particular bill when we were advised by the witnesses before us that they were considering further amendments to the bill. I understand that they were reviewing the Hansard transcripts of the evidence given to the committee by the witnesses, which in many ways was critical of the bill. Perhaps they were responding to that. If that was the case, that was good news. But you can understand how we felt when, halfway through an inquiry in which we were looking into this, the government said, ‘We’re looking at a whole range of amendments to this bill.’

The chair of the committee subsequently confirmed that the amendments would be provided by the government on 8 October, which was Wednesday of last week. Here we are in the middle of the next week and the amendments still had not arrived in this chamber until a few hours ago. There are 18 pages—and I have them here before me—together with a supplementary explanatory memorandum, which we will need to review as well. The supplementary explanatory memorandum is some 21 pages long. We will need to review that along with the 18 pages of amendments. If you want confirmation that this government is administering the affairs of this country in a dilatory, negligent and potentially reckless manner then you have it here before you today, my colleague senators and Madam Acting Deputy President. The evidence is here.

I have not even looked at these amendments, so I do not know if they address the concerns that have been expressed not only by us but by other members of the Senate committee. That Senate committee inquiry report was delivered just a few hours ago—in fact, around four o’clock this afternoon. It is extensive. There are 73-odd pages. Additional comments by the Liberal senators are at the back of the report. I want to say thank you to the secretariat for the work they did, under a lot of pressure, to pull this report together in a very tight time frame. I thank Peter Hallahan and his secretariat for pulling that together. I also thank Senator Trood and Senator Fisher for the work they have done in pulling together the additional comments by the Liberal senators.

I want to focus on the process and then on the substance of the bill. The process, firstly, is flawed—the government has tabled 18 pages of amendments today. Senators on the other side are saying, ‘Support the bill; it’s got to be passed as soon as possible.’ Give us a break! Due process says we should consider this in a measured, proper and professional way, as a Senate should. I find it almost offensive that they are asking us to pass the bill without even considering the 18 pages of government amendments that were laid on the table just a few hours ago. So you can understand the frustration, annoyance and perhaps a little bit of aggro from those on this side of the chamber who say due process has been abused and that the process is unsatisfactory in the extreme.

Earlier in the Senate, in the debate on the de facto amendment bill that is before us, I highlighted the fact that this is one of four amending reform bills before the Senate on the removal of discrimination between same-sex couples That is an objective that all of us in this chamber support—let me put that on the record—but the government has come up with three different definitions of ‘de facto relationship’ in four separate bills introduced concurrently, simultaneously, in both houses of this parliament. How is that possible? How could the government muck it up so badly? And now they are amending their own bill! It is embarrassing for the government. They should have simply come in here and apologised. They should have said, ‘We’ve muffed it. We want to improve this legislation. We need more time to amend our bills, which we’ve asked the Senate to consider. We’ve asked the Senate committee to use your time, your resources, your efforts to fix the bill. We’ve now seen the flaws in our argument. We’ve seen the flaws in our bill, and we want to try and fix it.’ If they had come into this chamber and admitted the flaws and admitted that they had muffed it, then it would have been appreciated, and it would have helped in terms of coming up with better legislation. That is our job: to try and improve the legislation in the Senate. As a whole, it works, it is great, and I appreciate it.

I also want to say that not only the Attorney-General’s representative but all the witnesses were bona fide and expressed their views on this as they saw it, and I thank them for it. But there are significant elements of incompetence and potential recklessness by the government in the manner in which they have managed these four bills and the different terms in these bills, such as ‘couple relationship’, ‘de facto relationship’, ‘child’ and ‘parent’. They vary across the four bills, and in many instances, as I indicated earlier in the day, they are incompatible and contradictory. So the process is very, very flawed.

I want to confirm on the record what I said earlier about the coalition’s policy position. We support the principle of the objective behind these four bills but resolutely oppose—and I quote Dr Brendan Nelson:

… any measure which might open the door or otherwise give legitimacy to gay adoption, gay IVF or gay surrogacy.

He does not support it and the coalition does not support it. I put that on the record because marriage is important, families are important and those principles are important.

There are two major areas of concern with the substance of the superannuation amendment bill before us. Firstly, the term ‘couple relationship’ is used in the bill to cover both marriage and de facto relationships, including same-sex de facto relationships. Why would they do that? Why would they lump it all in there under ‘couple relationship’ in this legislation? This was an area of serious concern not just to the Australian Christian Lobby, Family Voice and Professor Patrick Parkinson from the University of Sydney but to a whole range of witnesses. They felt uncomfortable about this, and I know that there were members of the community, across the community, who felt very uncomfortable about the use of the term ‘couple relationship’ because it undermines marriage.

I know the Attorney-General says the objective of the bill is not to undermine marriage, but in using the term ‘couple relationship’ it certainly does. Marriage is treated simply as one of the possible indications that two persons are in a couple relationship, and it is not even conclusive for that purpose. This novel approach undermines the unique status of marriage in Commonwealth law and it was abandoned by the government in drafting the general law reform bill, which refers to marriages and de facto relationships as two distinct types of relationships while nonetheless treating them equally. The government have seen the error of their ways. They have fixed it in the same-sex general law reform bill but have made the error in the same-sex superannuation bill. So you have a different approach in two bills introduced to this parliament pretty much concurrently—within the space of a month. It is a quite bizarre approach.

Our recommendation is that the term ‘couple relationship’ be abandoned and the bill redrafted using the terminology used in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. So I am hoping that some of the government’s 18 pages of amendments, which they tabled in the Senate today, will have fixed that. I have not looked at them but I am hoping they have fixed it. Let us hope so.

The second area of concern relates to the definition of a child as a ‘product of a relationship’. Professor Parkinson refers to ‘product’ as an ‘ugly’ word. I agree with him. Is a child a ‘product’ of a relationship? Certainly the government has displayed extraordinary ineptitude in presenting the Senate with a series of ad hoc and incompatible approaches to the definitions of ‘child’ and ‘parent’ in Commonwealth law. The bill would introduce a provision that:

… any child, in relation to a person, includes ‘...if, at any time, the person was in a relationship as a couple with another person (whether the persons are the same sex or different sexes)—a child who is the product of the person’s relationship with that other person.’

I put it to the Senate that that is not in the best interests of the child and not in the best interests of our community.

The first explanatory memorandum to the bill—I do not know about the second one because it was only tabled this afternoon—set out two scenarios in which the definition would apply. The scenarios canvassed by the explanatory memorandum to this bill do not refer to surrogacy arrangements; however, the definition may cover some surrogacy arrangements. So what will the Senate do about this? There is a lack of clarity, and it is deeply regrettable in a matter as significant as the legal relationship of parenthood. Why is there confusion about this? For decades or even hundreds of years there has not been confusion about the definitions of parenthood and of a child, but the government is clearly confused. The government deserves considerable criticism for having proceeded in this manner.

There has been no inquiry into surrogacy by a Senate committee. It would be inappropriate for the Senate to adopt the amendment that has been put forward by the government 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. A question about this was asked in the committee, and I thank the Attorney-General’s Department for responding swiftly and in accordance with the facts at hand.

I could refer to the other concerns I have, but they are set out in the additional comments by Liberal senators to the committee report. The second recommendation made by the Liberal senators is:

The Bill should be amended to remove all references to a child as ‘the product of the person’s relationship with that other person’ and to replace such references with the phrase ‘child of the de facto partner of the person.’

The bottom line to that recommendation, and the rationale behind it, is that we want to do what is in the best interests of the child. We want to protect and preserve the uniqueness and special nature of marriage and to support and encourage marriage in this country. We want to support and encourage families. We acknowledge the importance and stability of marriage in modern-day Australia.