Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I would like to thank the honourable senators for their contributions to this debate. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 introduces the second part of the Rudd government’s historic reforms to amend Commonwealth laws that discriminate on the basis of sexuality. The Senate has, of course, previously debated on second reading the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which I will refer to as the superannuation bill. Together, these laws, and the Family Law Act de facto reforms, implement the Rudd government’s election commitment to removing same-sex discrimination, and its commitment to implementing the recommendations of the Human Rights and Equal Opportunity Commission’s Same-sex: same entitlements report. I want to take this opportunity to thank the commission for its work on that report.

This is a significant day. This is the Rudd government implementing its election commitments, and I want to note that, over the course of Australia’s history, it has been the task of Labor governments to legislatively remove discrimination. This was previously done in relation to race and gender, and it was done some 20 years ago in adding sexual preference as an additional ground of discrimination under the Human Rights and Equal Opportunity Commission regulations. So, despite years of this issue having been discussed by the Howard government, we now have a Labor government—yet again—willing and able to put in place legislative reforms to remove discrimination. I also want to acknowledge that this is a reform that has been argued for and campaigned on by a great many members of the Australian community—in particular, members of the gay and lesbian community—who have worked very hard to achieve the equality in Australia that is being provided for in this legislation.

The bill before the chamber removes discrimination against same-sex couples and their children in 68 Commonwealth laws. These reforms are long overdue. The general approach taken in the bill is as follows: inserting a non-discriminatory definition of ‘de facto partner’ usually based on the new definition of a de facto partner which is to be inserted into the Acts Interpretation Act; recognising certain registered relationships under prescribed state and territory relationship registers; recognising children and parents in same-sex families where the child is a child within the meaning of the Family Law Act; removing marital status discrimination by expanding the meaning of ‘stepchild’ beyond its current meaning of ‘a child of a husband or wife by a former union’ to ‘a child of a de facto partner’; inserting a non-discriminatory definition of a step-parent; and inserting a tracing rule to recognise other family relationships—such as brother, aunt and grandparents—for relatives of non-biological parents.

In relation to the definition of ‘de facto partner’, the bill utilises the new definition of de facto partner which is to be included in the Acts Interpretation Act by the superannuation bill and will apply to de facto partnerships whether the parties to a relationship are of the same sex or different sexes. This definition of a de facto partner will recognise two different types of relationships. The couple will be taken to be in a de facto relationship if they have a relationship as a couple living together on a genuine domestic basis, having regard to a number of circumstances included within the definition. Registered relationships will also be recognised where that relationship is registered under prescribed state or territory laws as a prescribed kind of relationship for the purposes of the Acts Interpretation Act. The definition will, however, not apply to a number of acts such as the Social Security Act 1991, the Migration Act and the Veterans’ Entitlements Act, which currently have their own particular approach to defining who is a member of a couple or a de facto partner or a child of a person.

The government has tabled parliamentary amendments to the general law reform bill. The majority of the amendments make changes consistent with the first recommendation made in the report of the Senate Standing Committee on Legal and Constitutional Affairs, and they reflect community input into the committee’s inquiry. I thank the committee for its work in consideration of the bill. As was noted in the debate on the superannuation bill, there were criticisms that the particular term used in relation to the expanded definition of a child would create interpretational difficulties. As a result, the amendments will build on the bipartisan support for amendments to the Family Law Act and adopt the definition of ‘child’ within the meaning of that act. This was one of the recommendations of the Senate committee.

On 18 September, the Attorney-General announced that the government would reform access to child support to remove discrimination against same-sex couples and their families. From 1 July 2009, parents with children from same-sex relationships will be able to seek child support from the other parent if the relationship breaks down. Presently, the non-biological parent in a same-sex couple where the couple has had a child is not liable for child support if the relationship breaks down, and this situation arises because the Child Support Scheme expressly relies on section 60H of the Family Law Act, which, until recently, did not confer parentage to the same-sex partner of a biological parent of a child born within that relationship. Recent amendments to that section mean that female same-sex couples will be recognised as the parents of children born as a result of artificial conception procedures, and these amendments will apply for child support purposes from 1 July next year. Similarly, amendments to the new section 60HB in the Family Law Act for children born under surrogacy arrangements regulated by state and territory laws will also apply for child support purposes from 1 July 2009. Government amendments will update the child support legislation to also refer to section 60HB in addition to the current reference to section 60H.

In addition to those reforms, the government amendments, which were tabled on 11 November 2008, will apply the general approach taken in the bill to the child support acts by amending provisions in the Child Support (Assessment) Act that relate to the concept of a parent so as to maintain consistency between that act and the Family Law Act as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, amending the definitions of ‘de facto relationship’ and ‘member of a couple’ in the Child Support (Assessment) Act to recognise both same- and opposite-sex de facto relationships and registered relationships within the meaning of section 22B of the Acts Interpretation Act, as we propose to amend it, and inserting a tracing rule in the Child Support (Assessment) Act and Child Support (Registration and Collection) Act.

I want to turn very briefly to some implementation issues that have been raised. The Senate committee’s report on this bill included a recommendation to develop and implement user-friendly initiatives and strategies to inform clients and staff of the proposed changes by no later than 31 March 2009, and I note that Senator Hanson-Young raised the issue today. Can I indicate to senators that relevant government agencies have been consulting with community representatives to ensure that the concerns of affected community members are carefully considered in the implementation of these reforms. Each portfolio will be responsible for the dissemination of information to its particular client groups. Each relevant department or agency is in the process, I am advised, of developing specific communication strategies in order to reach such groups.

As part of this development process an interdepartmental communications working group, comprising representatives from relevant departments, has been established. This group will consult with community representatives to identify the communication tools most effective in disseminating information to the community and to ensure that the employment of any communication strategies is done in the most appropriate and targeted manner. I understand that the working group will meet with community representatives on 14 November.

Agencies involved in this process are developing specific communications strategies to reach client groups. These include a public awareness campaign, targeted communication activities, updates to current materials, training of staff where necessary and updating of policy manuals. In addition, certain departments currently providing services will also be available to assist clients to adjust to the reforms—for example, Centrelink will provide access to its financial information service and social workers to those clients affected by the changes.

The government also has in place a process to monitor the broader implementation of the reforms to ensure effective and orderly introduction. This is being auspiced by the interdepartmental working group, which is charged with monitoring the implementation of the reforms for a period of two years. Further meetings will be held as needed.

Some community groups have requested that certain parts of the reform be delayed. The government’s view is that extension of the commencement dates beyond 1 July 2009 would not only continue discrimination against same-sex relationships in the social security laws but also affect other Commonwealth acts which interact with those laws, possibly creating inconsistencies in legislative outcomes.

In relation to some of the specific comments raised by honourable senators, I will make the following comments. It has been proposed by the Greens that the Acts Interpretation Act definition of ‘de facto partner’ should directly recognise overseas relationship registration and civil unions. Recognition of overseas civil unions as conclusive proof of a relationship does raise certain complex issues. So, whilst a same-sex couple will not be able to use an overseas relationship registration or civil union to conclusively prove the existence of the relationship, the bill provides that registration may nevertheless provide evidence which will make it easier for such a couple to prove the existence of a de facto relationship. For example, evidence of an overseas civil union may demonstrate a mutual commitment to a shared life for the purposes of proposed section 22C(2)(f) of the definition of de facto relationship in the Acts Interpretation Act. It may also be relevant to the reputation and public aspects of the relationship for the purposes of other sections of that definition in that act.

In some overseas jurisdictions there may be little distinction between a same-sex marriage and a civil union. The government retains its view that marriage is a union between a man and a woman. Government policy on the recognition of overseas civil unions must have regard to the requirement of the Marriage Act 1961, which reflects that recognition, and it is the case that the government is not proposing to recognise overseas same-sex unions as marriages in Australia.

The Greens have also proposed to introduce the new umbrella term ‘couple relationship’ to cover all forms of relationship: marital, registered and de facto. The introduction of such a term would require extensive amendment to legislation—much more than is currently proposed. The approach that has been taken by the government is a functional one to remove discrimination without a major legislative overhaul.

Senator Hanson-Young also asked why not all acts identified as discriminatory by the HREOC are being amended. There are a number of reasons. First, on further review some acts were found not to be discriminatory; second, some acts relied on definitions in other acts which are being amended; third, some acts were determined to have little practical effect; fourth, subsequent to identification, some acts were repealed or are intended to be repealed; finally, some acts are intended to be amended or repealed as part of other government reforms.

The Greens have also proposed an amendment to the Sex Discrimination Act to remove all discrimination against all forms of relationship. Any such amendment would need careful consideration, and the government will carefully consider this issue in the context of the broader review of the Sex Discrimination Act that is being undertaken by the legal and constitutional affairs committee. Alternatively, the government may consider this issue in the context of any consideration of a sexuality discrimination bill.

The government needs to ensure that any extension of the SDA to recognise a same-sex relationship does not lead to any unintended consequences. Exemptions for Commonwealth, state and territory laws would probably be necessary and, whilst the general law reform bill introduces wide-ranging reforms, there remains widespread discrimination in statutory instruments, which would need to be either exempted or reformed. The government is moving to remove same-sex discrimination in statutory instruments.

Finally, the Greens have called for a conscience vote by all senators on amending the Marriage Act. The government’s position—and, for that matter, the opposition’s position—on this issue is well known.

This bill completes the government’s package of reforms to remove discrimination against same-sex couples and their children in a wide range of Commonwealth laws.

In conclusion, it is acknowledged by the government that recognition of same-sex relationships may lead to financial disadvantage for some. These reforms are about equality and extending the same treatment to persons in de facto partnerships, regardless of their sexual preference. How much value is to be placed on having equal recognition before the law and having the same entitlements and obligations as mixed-sex de facto relationships? Under the government’s evidence reforms, for example, which are currently before the Senate, same-sex de facto partners of people charged with offences will be able to object to being required to give evidence against their partners. The entitlement to object currently applies only to married couples and mixed-sex de facto partners.

In the event of a breakdown in the relationship, what value can be placed on having equal access, equal to that of mixed-sex relationships, to the federal family law courts on property and maintenance matters and also to the same entitlement to seek child support from the parent of the child of the relationship? As part of the reforms to the Bankruptcy Act, for example, the recovery and distribution of a bankrupt’s property depends in part on whether a person is regarded as a related entity, close relative or a family member of a bankrupt. By virtue of these amendments, a partner in a same-sex de facto relationship will be included within the definition of ‘related entity’ and ‘close relative’ under that act.

In its inquiry, the Australian Human Rights Commission discussed the importance of formal recognition of same-sex relationships. It also discussed some of the advantages and disadvantages of the different recognition models. The commission did observe that there was a consensus that gay and lesbian couples should have the same rights to financial and work related entitlements as opposite-sex partners.

It is the government’s view that the reforms in this bill are fair and equitable. It is the government’s view that this legislation is the right thing to do. We commend the bill to the Senate.