Chris Ellison (WA, Liberal Party) Share this | Hansard source

The bill we are dealing with tonight is the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and is part of a package of bills which are related and purportedly deal with discrimination against same-sex couples. Ostensibly, the genesis of this bill is portrayed as being the Human Rights and Equal Opportunity Commission report Same-sex: same entitlements. I think it is fair to say, though, that last year, when the coalition was in government, it gave consideration to eradicating financial discrimination based on the sexuality of a person or persons in a relationship. And I think it is fair to say that the purpose of removing that financial discrimination, as alluded to in the title of this bill, is something which would be broadly supported. But, of course, there are other aspects to this bill.

Firstly, although the Senate committee quite rightly touched in its inquiry on the subject of interdependent relationships, this bill does not. I think it is a touch disingenuous of people to say, ‘Well, we want to eradicate discrimination where same-sex couples are involved, but we are not prepared to go that extra distance and cover those interdependent relationships which exist in society and which can be best characterised as, say, two people who have lived together in a non-sexual relationship but have relied on each other over many years.’ I cite an example of two spinster sisters. They too are in a similar position. I think it is regrettable that this bill does not go that far to include that. If it were serious about doing away with discrimination based on financial matters and the relationships people enter into with each other, it would consider that, but it does not.

Of course, there are other aspects to this bill which go much further than its title would suggest. I am dealing with definitions such as those of ‘child’ and ‘parent’, just to name a couple—very important definitions indeed, ones which are central to our society and the basic functioning of our community and families. I note that these matters were raised in the Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill—and of course you, Mr Acting Deputy President Barnett, were a member of that committee. I want to pay tribute to the work that you did with Senators Trood and Fisher in relation to your comments on aspects of the bill which you found flawed.

Before I deal with that, however, I wanted to remind the Senate of what the coalition announced back in June as to its policy. The coalition stated:

There is no inconsistency between the recognition of equal treatment and the economic rights of same-sex couples and the coalition’s acknowledgement and respect for traditional marriage. The coalition will not accept amendments that would alter the status of traditional marriage between a man and a woman and does not support gay marriage or access by gay and lesbian couples to adoption, IVF and surrogacy. The coalition’s support for the government’s amendments is subject to the condition that nothing in its terms will affect the status and centrality of traditional marriage between a man and a woman.

Those are basic principles which guide us in approaching this legislation.

The difficulty, of course, is that this bill does bring in those other aspects which I have mentioned. The bill provides in relation to the definition of a child:

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.

Some very interesting comments were made by Liberal senators who are members of the Senate Standing Committee on Legal and Constitutional Affairs. I refer to them as being of great assistance. I quote:

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.

The Explanatory Memorandum to the Bill gives two scenarios in which this definition would apply. These scenarios each involve artificial conception. Each scenario raises complex questions about the consent required by various parties in connection with a procedure involving assisted reproductive technology undergone by one party, and the implications for a possible parent-child relationship between these parties and any child conceived as a result of that procedure. The Bill does not adequately address these issues.

The scenarios canvassed by the Explanatory Memorandum to this Bill do not refer to surrogacy arrangements. However, the definition may cover some surrogacy arrangements.

I think that is a salient point because it demonstrates the lack of forethought that has gone into this bill, and that is also demonstrated by the late production of some 18 pages of amendments. I will come to the lack of process in a moment.

It can be seen that when you apply the fundamental principles I mentioned earlier, as espoused by the coalition in June this year, you do have some concerns and you can see some issues with this bill. I certainly agree with some of the comments that you, Mr Acting Deputy President Barnett, and some of the other senators made when expressing concerns about the definitions—the reference to ‘relationship’ and the impact the definitions have on marriage. They are of a very serious nature indeed.

As I said at the outset, no-one argues with doing away with discrimination, where you have couples who are interdependent on each other—whether they are same-sex or not is irrelevant; it is the fact that people are being discriminated against because of their different relationship and that they cannot enjoy the same superannuation benefits or other financial benefits. No-one disagrees with eradicating that sort of discrimination. I think it was Brendan Nelson who said that no-one should be financially disadvantaged because of their sex, and I think that was a very good way of putting it.

I note that, in this report by the Senate Standing Committee on Legal and Constitutional Affairs, Liberal senators stated:

A better approach to ensuring equal treatment for children who have a parent who is a party to a same-sex relationship ...

I think that is an issue which has been raised: the welfare of children. Of course, the welfare of children is paramount, but I think there is a better way of expressing it. I certainly take on board the comments of Liberal senators who stated that you could use the phrase ‘child of the de facto partner of the person’ to refer to a child in these circumstances, other than referring to a child as simply being a ‘product’ of a relationship. Senator Bernardi said it very well when he referred to the fact that he wants four ‘products’ in his family. I have got three. I certainly refer to my children in other terms—sometimes not so affectionately; it depends on their behaviour—but I do not think I can quite bring myself to think of children as ‘products’. I think that it is very unfortunate.

During the course of the inquiry there was evidence given. I refer to that part of the report which deals with ‘de facto relationship’ versus ‘couple relationship’. The Attorney-General’s Department said there were difficulties with expressing it by reference to ‘de facto relationship’ and that ‘couple relationship’ was a better way of doing it. I note that the Association of Superannuation Funds of Australia, no less, concurred that you could have a difference in the reference without having discrimination. Certainly the Australian Christian Lobby stated that the generic category of ‘couple relationship’ should be abandoned and replaced with references to ‘married’ or ‘de facto relationship’ and the associated terminology of ‘spouse’ or ‘partner’ throughout the bill. That was something which the Association of Superannuation Funds of Australia did not take any issue with, as I see from the report. I think that that is a salient point as well, because it demonstrates that you do not have to overturn these established notions and definitions which society has come to accept over years, such as ‘child’, ‘parent’ and ‘marital’, in order to achieve your ends.

All it takes is a bit of smart thinking, a bit of work and a bit of time. It does not take 18 pages of amendments being delivered at the last minute, when you think that this government and the Attorney-General have had months to contemplate this. He has breached every undertaking he has given the coalition, as I understand it, in relation to the delivery of these amendments. We had the absolutely outrageous situation of a Senate committee considering a bill having been promised amendments before it completed its determination of the inquiry, and it did not get them. Then, once the report was handed down in the Senate today, 18 pages of amendments arrived. Of course, that demonstrates the very point that was made. Mr Acting Deputy President Barnett, you made that point forcefully and correctly.

There is a procedure in this Senate and it is that you have Senate inquiries which are of great assistance to senators when they are considering bills. In this case, the Senate inquiry has been of great assistance, but of course it could not do its job because it did not have the opportunity to consider 18 pages of amendments. I have not had a chance to look through them. I flicked through them and I am not sure whether they address the concerns that I have mentioned, but I have to say this: we are dealing with very important icons in our community, and definitions. It is very much the basis on which society ticks. The family is at the basis of our community and society. Definitions such as ‘marriage’, ‘child’ and ‘parent’ have been with us for many years and the acceptance of the established definitions of those terms has formed the basis of our community and society. You do not simply come along and say, ‘Well, we want to achieve this end and we will overturn all those definitions in the meanwhile and refer to children as products.’

Someone once said that marriage is a great institution—the trouble is the people in it. I must say there is a lot of truth in that. I think someone said earlier that a marriage is something you have to work at constantly—and don’t those of us who are in the institution know that!—but it is still a worthwhile one. It is still one which is the anchor of this society. I fully accept that men and women have had de facto relationships for time immemorial and it has been recognised by the common law, quite properly. That is a choice people make; I respect that. People in interdependent relationships that rely on each other financially should not be discriminated against. But we must, above all, keep marriage as an essential union between a man and a woman and recognise it as the basis of our society and community.

I note that during the hearings the Australian Family Association, the Australian Christian Lobby, Family Voice and others expressed fears that this could be the beginning of something much more. I reiterate: the coalition has said very clearly that it approaches this on the basis that it believes in traditional marriage and that its support for the government’s amendments is subject to the condition that nothing in its terms will affect the status and centrality of traditional marriage between a man and a woman. I would remind my colleagues of that as the guiding principles which drives the coalition in these matters.

I think for someone to say, ‘If you hold a different view, you’re biased or prejudiced,’ is a reflection of the lack of faith they bring to the argument. We all hold different views; I respect views which are different to mine. But I think that for people to say, ‘Well, you’re just prejudiced,’ is an easy fix and is not thinking through the argument. It is perhaps facile at best to say this after you have heard consideration and comments given by people of a different view, and I have seen that today, where those comments and views have been well thought-out and based on a thorough consideration of the issues at hand.

I hope that, in the amendments that will be considered and in the committee stage of this bill, this flawed bill can be salvaged. Senator Bernardi; you, Mr Acting Deputy President Barnett; and others have voiced their concerns as to whether that can be done. I share those concerns, but I say to senators and the wider community that this is about getting something very important right and, if it takes some time and a bit of hard work, then so be it, because this goes to matters which are central to our very community. We want to eradicate discrimination wherever it should be but we also want to preserve those basic notions which hold us together as a society.

Debate (on motion by Senator Stephens) adjourned.