Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The Sexuality and Gender Identity Discrimination Bill 2003 [2004], as the date suggests, was introduced in 2003, but in reality it has been around in one form or another since it was introduce by former Democrats senator Sid Spindler back in 1995, in the days when the Labor Party was in government, which is a long time ago. It was reintroduced and stood on the Notice Paper in my name for about five years before it was once again reintroduced in slightly amended form by former Democrats senator Brian Greig in 2003.

The legislation—and the principles underpinning it—have been around for a long time and, frankly, I do not think there would be a single senator in this place who would not be aware of the broad thrust of it. Indeed, when it was first tabled in 1995, it was referred to a Senate committee as part of a much wider national Senate inquiry into sexuality discrimination and the report of that inquiry was tabled in December 1997 by the Senate Legal and Constitutional References Committee, with wide-ranging recommendations going beyond the ambit of the legislation. It is a real tragedy that the simple principles underpinning this legislation and the clear recommendations contained in that report that was tabled nearly nine years ago have not been acted on except in a small number of areas.

This debate this afternoon is an opportunity to test both the Labor Party and particularly the coalition as to how far they have progressed, if at all, over that period of time. The legislation in the broad ensures the removal of ongoing inequities under federal law discriminating against gay, lesbian and bisexual people in areas such as superannuation, death benefits, taxation arrangements, income support, immigration access, industrial relations conditions, Public Service entitlements—including bodies such as the Federal Police and the Defence Force—veterans pensions, access to the Family Court, Medicare and welfare legislation, among other things. It simply seeks to ensure that people are no longer discriminated against on the grounds of their sexuality or their gender identity under Commonwealth law.

It should be noted that this principle has been supported publicly by a growing number of people within the federal Liberal Party. I certainly welcome those statements. The most notable example would be that of the Liberal member for the seat of Leichhardt in my state of Queensland, Mr Warren Entsch, who has been on the record a number of times, as far back as before the last federal election, supporting the removal of discrimination against people in same-sex relationships under federal law. He has been joined by a number of other Liberal colleagues in more recent times. The member for Wentworth, Mr Turnbull, has been on the record recently saying similar things. Indeed, our Prime Minister himself, Mr Howard, at the end of last year stated that he did not believe that people should be discriminated against under federal law because they are in same-sex relationships.

I hasten to emphasise that this does not deal with the matter of same-sex marriage or matters like adoption. What it deals with is the legal situation affecting people, particularly same-sex partners, under federal law, whether you are talking about taxation, superannuation, the defence forces, veterans, Medicare arrangements, social security legislation or a whole range of other areas. Just last week, the Senate Standing Committee on Economics tabled its report into the provisions of the Tax Laws Amendment (2006 Measures No. 4) Bill 2006. As my colleague Senator Murray pointed out in his minority report, these changes will have the effect of expanding existing discrimination that already applies to people in same-sex relationships under the capital gains tax regime. So, despite some of the positive statements being made by a range of coalition members, including the statement on the public record by the Prime Minister that he does not believe people should be discriminated against in general areas of federal law because they are in same-sex relationships, not only does that reality continue to exist but it is being expanded, for example, in that piece of taxation legislation.

General nice-sounding statements saying that you do not think something should be the case are not good enough when the reality is that discrimination exists and the solution or remedy to that discrimination has been before the Senate since 1995 in the form of legislation tabled by the Democrats. The remedy is here in this legislation. It may be that some other speakers might identify specific components within the legislation that they think are problematic in a legal sense, and I am quite happy for them to do so. But nitpicking about particular problems with this specific piece of legislation should not be used as an excuse for ongoing inaction. Inaction is what we have had in this area.

I feel compelled to emphasise and, indeed, defend the Democrats’ record in this area. I noted a list put forward yesterday by the Sydney Star Observer of, according to them, some of Australia’s most gay-friendly politicians. This is not a competition, I hasten to add, and I am not in any way casting aspersions on others who were mentioned in that list, of which Mr Entsch was one and I think Senator Vanstone was another, but I did take great offence at the failure to note the Democrats’ record in this area. What that says to me, quite frankly, is that the Sydney Star Observer are not interested in people undertaking action that makes a difference. If you want to get this discrimination changed, making statements in support is not going to change it. Even the Prime Minister has made statements that can be interpreted as supportive. What makes a difference is actually seeking to act to change the laws. There can be absolutely no doubt that the Democrats have done that consistently, year after year after year—far more so than any other party in this federal parliament. To have that not recognised and dismissed is, apart from being personally offensive to me, really quite a dangerous act because it suggests to any other politicians who might be wanting to act in this area that there is not much point in genuine action because that is not valued by people such as those at the Sydney Star Observer. It is no wonder you do not get progress when the people who attempt to make changes do not get any recognition.

It should be noted that there have been some positive changes in recent years. They are minor, but I think any advance should be acknowledged. Back in May 2004, at the time I was the leader of the Democrats, we saw the federal government finally agree to some recognition of people in same-sex relationships being able to access the superannuation of their partners in the same way as can people in de facto opposite-sex relationships. Whilst that was agreed and put in legislation—it was put in the form of recognition of interdependent relationships—I would have to say the actual process of administratively enacting that legislative change has been extremely poor. In a sign of how strongly this federal government was prepared to resist this sort of change, an amendment was made to the superannuation choice legislation and, because the Labor Party did not support superannuation choice legislation, the Democrats were in the position where our vote made the difference in whether the legislation passed or failed.

It took three years, from August 2001, over which the sole area of disagreement between the Democrats and the government was in removing the discrimination on same-sex couples being able to access the superannuation of their partners. The government were prepared to sacrifice all the changes with regard to superannuation choice for three years, solely so they did not have to adopt that principle. It took three years for them to change their position—but change it they did, which is certainly welcome and also something, I might note, that was barely acknowledged in much of the gay and lesbian media around the country. That is another example of where one has to wonder whether actual change is something that people are interested in or whether its being acknowledged is dependent on who is achieving it.

There have been other small steps forward. There is a long history in the Hansard of this Senate of the Democrats repeatedly pressuring the government via questions in question time, as well as during Senate estimates, through motions and in legislation through proposed amendments, seeking to remove discrimination for same-sex couples who are veterans or in the Defence Force. We have seen some small improvements in that area just in the last year or two. It is quite extraordinary, when we have a crisis with regard to recruitment and retention in the armed services, that the federal government refused to address something as fundamental as the entitlements of people’s partners because of their own philosophical objections to wanting advance in this area. There have been some changes there in recent years—not comprehensive or complete changes but at least there have been some.

I would also note that it was again the Democrats, going as far back as 1991, who were able to get changes made in the immigration area through an interdependency category that allowed some people in same-sex relationships to migrate to Australia. Again, it is not as adequate as complete removal of discrimination altogether, but it did provide a mechanism. We have seen a small step forward in recent times where the skills shortage is so bad in this country that the government are even willing to recognise same-sex partners to try to get people in here on skilled visas. They still will not do it across the board, including and most importantly in the family visa area, but they now recognise same-sex partners in the skilled visa categories because not doing so was a barrier to actually getting skilled people to migrate here. But, again, it took all of those years to get those small and incomplete changes.

If you compare the lack of progress at the federal level with what has been done at the state level, it becomes all the more stark because, at the time the predecessor to this legislation was first presented, back in 1995, many of the states were in as bad, if not a worse, situation. But, whilst things have all but stood still at the federal level, we have seen all of the states and territories significantly improve their situation. All of the states and territories have introduced laws ensuring same-sex relationships are afforded equality under law. Tasmania has gone so far as to remove all reference to the word ‘de facto’ in its legislation and replace it with a series of definitions relating to interdependent relationships covering family members, carers and significant personal relationships, which include those in same-sex relationships.

The benefit of that approach is that it recognises that this is about relationships. Removing discrimination on the basis of sexuality highlights the fact that we are talking about human beings, with all of their diversity and all of the different types of relationships that they have—not just getting hung up about sex. It would be good if people could just cope with putting aside their own particular personal moral views about sexual activity and recognise that we are dealing with human relationships here—and dealing with a wide range of human relationships of diverse nature.

Discriminating against people on the basis that you do not happen to like the gender of the person they have fallen in love with or the person they have formed a strong, independent relationship with not only is offensive and unfair but can be extremely hurtful. It leads to completely unnecessary inequities in our society and our economy. Frankly, it simply works against the human reality. A change is long overdue.

As I said, at its core, the legislation simply seeks to remove the areas of discrimination. It simply seeks to ensure that Commonwealth law no longer is able to discriminate against people on the basis of their sexuality or their gender identity. There is a range of different components, different divisions, within the legislation. They are outlined in the original second reading speech by Senator Greig back in 2003. That is on the Hansard record, so I will not go through them again now.

But I do need to emphasise the core point: over the last decade throughout Australia we have had significant progress in removing discrimination on the grounds of sexuality in all of the state and territory governments. It has not just been Labor governments and it has not been done solely by Labor; in most cases, even when Labor governments were making these changes, the changes were supported by Liberal oppositions, and in some cases changes were made by Liberal governments. It is solely at the federal level that we have had this total intransigence and this complete refusal to move.

I would have to say that it took a long time for the ALP to move. As many senators would recall, and as is still the practice of the Democrats from time to time, when various pieces of legislation pass through this chamber we move amendments to areas of law—whether it is tax law, Medicare law, Defence Force legislation or veterans legislation, to use some examples—to ensure that at least the act being dealt with no longer includes discriminatory aspects with regard to people’s relationships. For the first 10 times we did that, Labor opposed us, for a variety of reasons. It was not until the 11th time—I think on 18 September 2003—that Labor finally supported amendments that we moved. They were to superannuation legislation. For the first time, the amendment to remove discrimination in that particular area passed the Senate. Unfortunately, it did not pass the House of Representatives and it was not insisted on when it got back to the Senate, so we did not have success in that area. But it did take a significant number of times before we could even get the ALP on record and consistently supporting amendments that would remove discrimination at least for particular areas of legislation. The ALP is now relatively consistent on that, and that is something to be welcomed.

But it does need to be emphasised that this discrimination is continuing. It is very real and it is extremely unfair. As I said previously, it goes to the heart of people’s identity. It goes to the heart of people’s relationships. To have legislation that quite actively discriminates against people solely on the basis of their sexuality—in some cases very severely—is something that we should be well and truly past. It is most frustrating to have even the Prime Minister saying that he accepts that principle but still refusing to act on it. That is where the pressure needs to be continued.

Whilst this legislation will not come to a vote today and will not in itself change that reality, by bringing it on for debate again today the Democrats seek to continue to put that pressure on all of us here—to not just make some positive statements but follow them up with action. We will persevere, even if it is not recognised by people such as the Sydney Star Observer, because it is the right thing to do. It is something that probably loses votes—in fact, I know that it loses votes—especially for parties such as the Democrats, who seek to maintain more of a centrist position. But it is the right thing to do and it is well and truly overdue.

We will continue to test all parties in this area, probably when the next taxation legislation—the tax No. 4 bill—comes through in the next few weeks. The easy thing to do would be to just support this legislation. If we did that, we would address this issue once and for all in its totality. That is what we should be doing.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

In rising to speak on the Sexuality and Gender Identity Discrimination Bill 2003 [2004], I can say at the outset that it is Labor’s longstanding policy to remove discrimination against the GLBTI community. We did take action when we were in government and we have taken action at a state level. We have made commitments in our platform, and when in government we will deliver change. Labor recognises that we have strong legislation protecting people from discrimination on the basis of race, sex, disability and age, but that under federal law it is still lawful to discriminate on the grounds of sexuality or gender identity. We are committed to removing discrimination in Commonwealth legislation—a process all Labor states have undertaken except, as I recall, South Australia, which is currently undertaking that and which will complete it soon.

This is much needed at the Commonwealth level because some of these items do impact, as I think Senator Bartlett indicated, in areas of social security, tax law, veterans, Medicare and the like. We do acknowledge the strong interest that has been shown by the Democrats, especially former senator Brian Greig, who drafted the bill. So we can happily support the intent and the direction of the bill, even if parts of it we might approach in a different manner, if I can put it that way, in terms of both drafting and a couple of other issues contained within the bill. But it is not really the time to go to that level of detail.

What we can say is that, because Labor has had a longstanding commitment to remove discrimination against same-sex couples, we do feel strongly about this issue—one that this government has totally neglected. It has been in our platform for a long time. We took it to the last election and we will take it to the next election. We are committed to delivering equality between de facto heterosexuals and same-sex couples and are currently conducting consultations on relationship recognition for same-sex couples.

The Democrat bill is basically a good one. We support the intention of removing discrimination to the GLBTI community. Labor would not approach these issues in the same way, but this bill would be a positive change nonetheless. It is one I know that the government would not pick up. I doubt very much that they will express that here today.

It is a matter that Labor has also progressed. The shadow Attorney-General has an exposure draft of her own sexuality discrimination bill open for public comment and feedback. The exposure draft is a private member’s bill that has not been introduced into the House of Representatives because Labor wants to ensure that many people in the community have a look at the bill and provide feedback to Labor’s shadow Attorney-General on the many issues that are contained within it. It is a detailed exposure draft. The hard work has been done by Labor. It goes through a range of issues covering many different matters, including an audit of all Commonwealth laws and ministerial advisory councils, and, of course, the central plank of the draft bill: the prohibition of sexual orientation and gender identity discrimination. It deals with discrimination in areas including education, goods and services, accommodation and land, how those matters might be looked at and issues that go to harassment and victimisation. It is a very complex exposure draft bill. I congratulate the Labor shadow Attorney-General for the hard work that she has put in in developing that. It does demonstrate Labor’s commitment to this important issue. It provides a clear and comprehensive path to removing long overdue discrimination at the Commonwealth level and aims to combat harassment and incitement to violence on sexuality or gender identity.

This exposure draft bill has some similar provisions to the Democrats bill and some different approaches as well, but the general direction is the same. We have learned from the success in some state jurisdictions. Labor supports the intent and aim of the Democrats bill, though, as I said, in government we would probably not take the same path or take every definition or exemption and perhaps depart not only on form but sometimes on technicality as well. But, as I said, it is not the time to go to some of that detail.

It is worth noting that the Human Rights and Equal Opportunity Commission is currently undertaking a national inquiry into discrimination against people in same-sex relationships regarding financial and work related benefits and entitlements. I would encourage people to have a look at that at the HREOC website at www.hreoc.gov.au. It is about providing a thorough list of Commonwealth legislation which discriminates against same-sex couples, so it gives you some measure of the work that this government has not addressed. Already over 80 pieces of legislation needing change have been identified, so there is a great need for government backbenchers to turn their minds to ensuring that the government might one day find its way clear to look at it, but I doubt that very much, quite frankly.

Labor plans to win the next election and will deliver on its promise to change the law in this area for good. Whilst there are some similarities between Labor and the Democrats on GLBTI issues, there are significant differences between Labor and the coalition—most importantly, by Labor refusing to stoop to the government level to use language and rhetoric to alienate and abuse people living in our community who are not heterosexual.

In voting a few months ago for the ACT’s right to make its own laws in this area, free from the intervention of the Commonwealth, we made this point clear. But our track record in this area is also strong. We commenced these changes under a Keating Labor government, particularly in Defence. Some might recall that the ALP lifted the ban on gay and lesbian people working in the military in 1992. Labor in government in the states has also delivered far-reaching reforms. New South Wales was one of the first to put gay and lesbian couples on an equal footing with heterosexual de factos. Since then, Western Australia, Tasmania, Queensland, Victoria and the ACT have moved forward with significant changes.

Labor has always been committed to removing discrimination against gay and lesbian people. From opposition we have continued to campaign for change. Mr Anthony Albanese and Ms Tanya Plibersek pursued superannuation changes for years before the government finally took some action. We will continue to do that, but the real measure will be when we are next in government, because we know that this government will not be moving on this. We can fix up the legislation that remains unaddressed—those 80 pieces and counting. Our community needs to be respectful, tolerant and engaged. Caring and loving adult relationships should be recognised and supported. Labor will do its bit to ensure that they are.

I understand that there was some arrangement with the times. I have been allowed 10 minutes. The clock has not been adjusted for that, but I will I adjust my speech accordingly to ensure that those who follow me can also have an opportunity to speak. But it is worth reiterating that the shadow Attorney-General, Nicola Roxon, has put out a draft, and for more information you can contact her website and, as well, you can comment on that. It is at www.nicolaroxonmp.com. We note that we are a consultative party, unlike the Howard government.

George Brandis (Queensland, Liberal Party) Share this | Link to this | Hansard source

In Adelaide last Wednesday, the member for Kooyong, Mr Petro Georgiou, delivered a very fine speech on the liberal tradition. The occasion of that speech, which I understand, Madam Acting Deputy President Troeth, you attended, was the Murray Hill lecture. The Murray Hill lecture is named to honour the memory of the late Murray Hill, a member of the South Australian parliament and the father of the former Leader of the Government in this place, Robert Hill. Mr Georgiou noted, in celebrating the late Murray Hill’s contribution to liberalism in Australia, that it was in 1972, while the late Mr Hill was a member of the Liberal and Country League, that he introduced into the South Australian parliament a bill to decriminalise homosexuality in that state.

That was the first occasion of substantive what we would today call ‘gay law reform’ in Australia and it came from a Liberal member of parliament. The following year, on 18 October 1973, Sir John Gorton, then a backbench opposition member of the House of Representatives, moved in that House that ‘in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law’. That was the first substantive piece of gay law reform at the federal level, and it was moved by a Liberal member of parliament—indeed, a former Liberal Prime Minister.

Those like Senator Ludwig or Senator Bartlett who chastise my side of politics on this issue do so with a meanness of spirit which ill becomes them. The view of these matters, of which the late Mr Hill and the late Sir John Gorton were pioneers, is a view which today animates the Liberal Party. It is a view that has been embraced by the Prime Minister, who as recently as 8 June this year said:

I am in favour of removing areas of discrimination and we have and I’m quite happy on a case by case basis to look at other areas where people believe there’s genuine discrimination, but I think they should be looked at on a case by case basis. I don’t think it’s the sort of thing that can be done in an across the board fashion. We made some changes in relation to entitlements a couple of years ago and if there are other areas of genuine discrimination, then I’m in favour of getting rid of them.

To the extent to which there is any discernible difference between Mr Howard’s position and the position of other leading Liberals of the past, the difference is one only of approach, not of philosophy. When the decriminalisation of homosexuality in the ACT came before the House of Representatives during the time of the second Whitlam government in a private member’s bill, if my memory serves me correctly, Mr Howard voted in favour of it.

During the course of the Howard government, a number of steps have been made to remove from the statute books discrimination against gay people. The superannuation laws have been changed to include same-sex partners as potential beneficiaries of death benefits in certain circumstances. In 2004 the government amended the Income Tax Assessment Act, the Superannuation Industry (Supervision) Act and the Retirement Savings Accounts Act to expand the range of potential beneficiaries of tax free superannuation death benefits to include what were defined as ‘interdependency relationships’, which included same-sex partnerships. On 10 October last year the government announced its decision to extend conditions of service for Australian Defence Force employees to interdependent relationships, which would include same-sex partners of ADF members.

So it is not right to say that the Liberal Party and the Howard government have not embraced the principle embodied in Senator Bartlett’s bill. They have done so. And that reflects the liberal philosophy. It reflects the philosophy outlined in the federal platform of my party, which condemns, as ‘an enemy’ of liberalism, ‘narrow prejudice’ and which commits the Liberal Party to oppose ‘discrimination based on irrelevant criteria’. I hardly think that in this day and age any mature or civilised person would regard sexuality as a relevant criterion for discrimination against other Australians.

So the objectives of the Sexuality and Gender Identity Discrimination Bill 2003 [2004], set out in the objects clause, clause 3, are objectives which not only I warmly support but also are supported by the Liberal Party and have historically been not only supported by but pioneered by Liberals, including the late Murray Hill, the late Sir John Gorton and, among contemporary Liberals, people such as the Hon. Warren Entsch and the Hon. Malcolm Turnbull, to name but two, who have agitated on this issue in the public in recent days. It is far too late in the day for anyone sensibly to suggest that in Australia there is a place for discrimination against people on the grounds of their sexuality. That attitude reflected the prejudices of a different time and a different age which are now obsolete and must be seen to be ignorant.

This is an enormous issue for Australia because it affects so many people. I think that, in years gone by, at a time when gay people were socially marginalised and, to use a famous expression, ‘in the closet’, it was thought to be a marginal issue, a boutique issue, that affected relatively few. But we know today that that is not so. The estimates vary but social scientists tell us that between four and six per cent of people identify as being exclusively or predominantly homosexual. If those estimates are right—and I have chosen the conservative end of the estimates—that means there are about one million Australians so circumstanced.

But each of those people have parents, most of them have siblings and many of them have children, so the number of Australians directly affected by discrimination against gay and lesbian people is many times greater than the five-odd per cent of the population, the approximately one million Australians, who so identify. If one takes into account only the members of their immediate families and disregards their close friends, workmates and colleagues, one is talking about a multiple of that number, several million Australians, directly affected by discrimination which in this day and age we identify to be ignorant, bigoted and, to use the words of the Liberal Party’s federal platform, a narrow prejudice which we will not countenance. So this is an important issue and it is an issue of wide significance.

I commend former Senator Brian Greig, who pursued this issue with his customary courteous tenacity in this parliament—

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

Hear, hear!

George Brandis (Queensland, Liberal Party) Share this | Link to this | Hansard source

thank you, Senator Scullion—during his time here. Nobody who has spoken to this bill so far has questioned the underlying principle, the moral sentiment, behind it—and I hope no-one would. But may I pause to say a word about the false antithesis which some people seek to draw between the advancement of this issue—respect for the rights and dignity of gay people—and so-called family values. There are certain people, some of them occupying the lunar fringe of my party, and certain extreme religious groups who seek to make that antithesis. It is a false antithesis. As if homosexual people are not members of families! As if their sense of commitment to their families and the values of their families, and the value to them and to the community of their families, is not as important to them as to anyone else! It is an ignorant, absurd and offensive notion.

I said before that, to the extent to which there is a difference between the mainstream parties of Australian politics on this issue today, it is a difference not of values—at least, not among those who occupy the mainstreams of their parties—but of approach. Senator Ludwig adverted to this too. The method of this bill is to seek to fold into the Human Rights and Equal Opportunity Commission Act certain generic prohibitions against discrimination. That approach, which has many things to commend it, is at variance with the government’s approach, the Prime Minister’s approach, of identifying discrimination and dealing with it on a case-by-case basis.

There are good arguments for both approaches, but I must say as a lawyer who values precision in statutory language that I am more impressed by the case-by-case approach than by the generic approach. For that reason, and another which I will mention in a moment, I do not think that this bill, valuable as it is to enable people to make declarations of intent and of values, is the right vehicle to deal with the prosaic, technical field of law reform. That is much better done by fixing up, case by case, the statutes which discriminate.

It is for that reason that, in April 2006, the Human Rights and Equal Opportunity Commission announced the commencement of a significant public inquiry into this matter called ‘Same sex, same entitlements’. Its discussion paper was published at that time. That inquiry is still pending. Hearings of the inquiry for later this month and next month in the various Australian states and territories have been announced. It seems to me an unusual and a premature thing, when the Commonwealth agency specifically charged with responsibility for human rights is presently in the middle of an inquiry into this matter—one of whose aims is to seek to identify the particular matters which need to be dealt with—to pass a bill which deals with the matter in an imprecise and generic way, honourable and laudable though the values and objectives of those who sponsored bill might be, and reflective of the mainstream of public opinion in this country in all respectable political parties though it might be.

One of the most useful things—a very prosaic issue which would only excite lawyers, but one of the most useful things—that the Human Rights and Equal Opportunity Commission’s inquiry has done is to trawl through the tens of thousands of pages of Commonwealth statutes to identify each and every specific instance which needs to be reformed in order to achieve the objectives embodied in the objects clause of the bill currently before us. The result of that research was published on 26 September, only two weeks ago.

The preliminary draft of the background paper lists 68 particular Commonwealth statutes which in various ways, many of them quite technical ways, like in the superannuation and taxation field, would require to be amended so as to achieve the goal of eliminating discrimination. And within the 68 statutes that are identified, in many there is a multiplicity of different provisions that would need legislative amendment.

So the way to do this, I think, if I may say so through you, Acting Deputy President, to Senator Bartlett and others who support this bill, is to wait until the Human Rights and Equal Opportunity Commission’s inquiry is complete, to wait until its draft list is finalised, and to deal with it in an omnibus bill—one of those dreary bills, like the taxation laws amendment bills which we are so often seized of here, which list in the schedule all of the statutes and all of the particular provisions which need to be fixed up, and then amend or repeal them or amend the definitions to include same-sex relationships in the defined sense. That is the way to go about this. And for that reason I would not encourage honourable senators to vote for this particular bill whilst, as I have said, nevertheless acknowledging the usefulness of having this discussion and enabling all of us—Democrats, Labor, Liberals—to declare our support for the values which it enshrines.

May I finish on this note. Speaking as the chair of the Attorney-General’s backbench policy committee within the government, this is an issue which we have been pursuing for some time. It is an issue that, both at the committee level and in private conversation, I have raised with the Attorney-General. And without violating the confidentiality of private discussions or the private proceedings of the government’s backbench committee, may I say that I have no doubt whatever that Mr Ruddock, as a Liberal in the mainstream of the liberal tradition, an honourable political figure through his long career, finds himself entirely in sympathy with the objectives that are sought to be prosecuted today.

So I think we are at that stage of the debate in which the issue of values has been fought and won. Society has moved on. People have become more tolerant. People have become more respectful of differences in others. The Liberal Party, which years ago used to have a relatively conservative position on these matters has, led by people like the late Murray Hill and the late Sir John Gorton, now embraced a modern, tolerant, inclusive view. We are at the stage in the debate where we are moving from a debate about the values to a technical debate about statutory drafting. I am glad to say that we have reached that point. It is high time that we got here. Once the Human Rights and Equal Opportunity Commission report is finalised, I hope the government loses no time in implementing its recommendations to the full.

Kerry Nettle (NSW, Australian Greens) Share this | Link to this | Hansard source

I welcome the opportunity to discuss the Sexuality and Gender Identity Discrimination Bill 2003 [2004] because, as senators will know, the Australian Greens are proud advocates of the need to remove discrimination in many areas of law and for many groups of people, and one of those groups of people is the lesbian, gay, bisexual, transgender and intersex community in Australia. I am not only talking about their status as part of same-sex couples, which the HREOC inquiry is looking at; we need to also be looking at the areas of discrimination that they face as individuals in Commonwealth law. So this bill is an opportunity for us to debate that and we welcome it. As others have said, it is a bill that was introduced, as I understand it, in 1995, so it is long overdue that we have the opportunity here to debate this piece of legislation. There are a range of exemptions in this legislation which allow for religious organisations to continue to discriminate against same-sex people in schools and nursing homes, and the Greens have particular concerns about those. Indeed, I have amendments to legislation we will be debating next week in the Senate that seek to address some of these issues.

As Senator Bartlett said, this is an old bill and many of the exemptions that are in this bill are broad ranging. Since then we have seen legislation introduced in the ACT and in Tasmania which has a far narrower gamut of the exemptions to such legislation. Senator Ludwig mentioned a piece of legislation, a sexuality discrimination bill exposure draft by the shadow Attorney-General, Nicola Roxon, which has also been made available. Unfortunately it has the same wide-ranging exemptions that we see in this piece of legislation. My colleague Michael Organ, who was formerly the member for Cunningham in the House of Representatives, also introduced a piece of legislation which sought, as all these pieces of legislation do, to remove discrimination. Everyone chooses to do it in a different way but, as all of those who have spoken so far in this debate have indicated, there is support for the need to remove this discrimination. I share the optimism that the previous speaker brought to this debate in saying that I and the Australian Greens believe that we will remove the discrimination that exists in this area of law and we are on the path to achieving that. I see this piece of legislation as a stepping stone in taking us in this direction. Indeed, a similar comment was made by Justice Michael Kirby in a recent speech that he was giving. He said:

But people, and nations, eventually grow up. Once the truth of diverse sexuality is common knowledge, it is impossible to put the genie back in the bottle. It is impossible to put the gay issue back in the closet. Diversity in sexual orientation is simply a fact of life. More and more people recognise and accept this fact. We all have to get used to it.

I share that sentiment. I think it is not just a matter of getting used to it; it is a matter of celebrating the diversity that a whole range of different people bring to our community. In the same way that we accept people from diverse cultures coming to Australia, so too we are made richer as a society by accepting the contributions that a whole range of people bring to our society regardless of their sexual orientation.

We have seen attitudes on these issues change over time. Rodney Croome, a campaigner in this area from Tasmania, was speaking to a group of students in 2004 and he noted that in Tasmania the increased debate that occurred about the legality of homosexuality changed the hearts and minds of ordinary Tasmanians. He put it this way. He said:

At the start of the debate in 1988, support for gay and lesbian rights was the lowest in the country at 33%. When homosexuality was decriminalised in 1997 it was the highest in the country at almost 60%.

I am proud to say that my colleague Greens Senator Christine Milne was at that time the Leader of the Greens in the Tasmanian parliament and was able to negotiate that gay law reform with the Liberal government of the time to remove that discrimination so that finally Tasmania joined every other state and territory in ensuring that homosexuality was legal.

We have seen a whole range of reforms in the area of discrimination over the years in Australia, whether it has been women getting the vote or Indigenous people getting the vote and being recognised. There have been a range of measures brought in which continue to operate under HREOC—the Human Rights and Equal Opportunity Commission—and the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act, which they administer. In my own state of New South Wales homosexuality was only legalised in 1982. The first Mardi Gras occurred in Sydney, my home town, in 1978. At the end of that everyone who was involved was dispersed by the police. It is now a massive celebration that occurs in Sydney. It is a real opportunity for people from across the political spectrum to come together and to celebrate the diversity of people who make up our community. So we do move through social change as we progress as a society and acknowledge the contributions that everybody makes. This is one of those arenas where we still have a way to go in not just accepting the contributions that people have to make to our society but also recognising them in law.

So often we see that attitudes within the community move ahead of the attitudes that are reflected here in our parliament. One example would be the debate that happened in 2004 in this parliament that dealt with the issue of same-sex marriage. As we all know, that was a setting-back of the direction in which we are going in removing discrimination. Unfortunately both of the major parties came together to ban same-sex people from accessing marriage. It was interesting at that time that when polls were carried out amongst the Australian community of the attitudes of people to this issue we saw that the views reflected here in the parliament did not reflect the view within the community. Of course there are growing numbers of people in the community who want to see that discrimination reformed not just in relation to same-sex couples but also in relation to same-sex individuals. Many of these people have had the opportunity to contribute to the public debate, such as through the Senate inquiry that occurred into the same-sex marriage legislation that was dealt with in the parliament. On all of these occasions we heard quite harrowing evidence put forward of circumstances of discrimination faced by people in our community. I want to share with the Senate a couple of those experiences. This evidence was given to the Senate during the inquiry into the government legislation to ban same-sex marriage. One individual wrote:

I’m a 17 year old gay male and I don’t feel safe or comfortable in my own country. I had heard of this act before. Trying to change things so that they can lawfully discriminate against Gay and Lesbian people. It IS discrimination, because if it wasn’t, I wouldn’t feel like my government hates me for who I am ... In this country I feel like I am not as deserving as a heterosexual person. Like I’m some kind of freak or mutant and that the government wants to get rid of me. It makes me so sad and I can’t do anything about it because I don’t matter.

It is really unfortunate that people in our community feel that way. What this piece of legislation does is to allow for us to share the contributions that everybody has to make by recognising the contributions that all people have to make. Many other people made similar comments. There were some comments made by a 17-year-old young woman from Ballarat. She said:

These new actions have now placed a new fear in me as I am now unsure whether it is ok for me to feel attracted to the same sex. I want to one day get married and adopt a child and now I am unsure whether I want to. Please help me. What can I do now?

Two male persons, in their submission, stated:

We are male persons in our mid to late 70s. Since 1948 we have lived in a permanent and loving male relationship as partners in Melbourne … It is puzzling to learn of disdain for same-sex couples as somehow unworthy citizens intent on undermining traditional respect for marriage and family, and not even deserving of privileges extended to de facto couples.

It has long been disappointing to same-sex couples such as ours that we have been denied such recognition and rights of “survivor benefits” similar to those of heterosexual partnerships. (Our own partnership has lasted 56 years.)

These contributions all deal with the issue of same-sex marriage that we dealt with in the parliament two years ago. But, as others have said, an inquiry is currently being carried out by the Human Rights and Equal Opportunity Commission, which is looking into the discrimination against same-sex couples regarding access to financial and work related entitlements. I welcome the contribution of Senator Brandis, who spoke before me, who said he would like to see all those recommendations put into place once they come out from HREOC. I also share in that enthusiasm, but I think we need to acknowledge that the HREOC inquiry is limited to looking at just same-sex couples and work related entitlements. Whilst I am sure the report will be comprehensive, as all reports from HREOC are, it may not deal with all of the issues in the arena because of the slightly narrower terms of reference that it has set itself.

I want to share with the Senate some of the submissions that have been received by the HREOC inquiry. One in particular comes from a group called the Coalition of Activist Lesbians. It draws together a number of stories from people in the community. One of those stories reads:

A librarian at a council run library in south western Sydney, described being asked to remove a small rainbow flag from her desk—

at work—

for fear of offending other workers. This lesbian said that because the order came from her boss she was not willing to challenge this or make a complaint. She also described how books on gay sexuality were kept out the back and library members had to individually ask the librarian for access to them.

Another lesbian, working in a New South Wales government department, described having obscene emails sent to her and, when she spoke with her supervisor, she received more harassment and ended up leaving her place of work.

A lesbian involved in a motor vehicle accident, where her partner of seven years was killed, was ignored as the next of kin when she went to the hospital. Despite arriving at the hospital in two ambulances from the one accident scene and her telling them over and over again that this was her life partner, workers at the hospital recognised the dead lesbian and contacted her uncle to identify her body. The other woman was discharged and sent back to their shared home three hours later, with no further contact from the hospital, despite having just seen her partner of seven years killed by their own vehicle and having been knocked over by the car herself. This woman needed to access a solicitor to maintain her right as next of kin in order to make funeral arrangements and organise the woman’s estate. The police did not accept her claim as next of kin for several days and visited the family home to ask specifically about their relationship in inappropriate ways.

I give another example where a lesbian mother has spoken about being banned from seeing her two teenage children because their father thought that she was a sinner. She was unprepared to fight this as she thought it would be too humiliating publicly, especially within the church, and she feared it would be destructive for her children and other family members. There have been countless circumstances. A woman was visiting a women’s centre in Illawarra and was verbally abused and threatened by a worker in front of the coordinator of the centre, where she was told, ‘Get your dirty lezzo friends out of the centre.’

These are not the sorts of circumstances that any of us want to see our fellow citizens having to face, and this piece of legislation does allow us that opportunity to move in the right direction. I have many other examples here, including people who wanted to give birth and felt they needed to move interstate in order to have both of their names on the birth certificate. When a young woman at a school in regional New South Wales told her friend that she thought she may be a lesbian, the rumour circulated in the school and she was held down by students in the car park afterwards and a car was driven over her feet. She was too frightened to tell the school authorities or to seek medical advice or contact the police for fear of further violence or of having to tell her parents. None of us want to see these circumstances happen to people in our community. The government has a capacity, through changing regulation and being involved in public education campaigns, to show leadership on this issue and ensure that people do not face the kind of discrimination that unfortunately so many people currently do.

It is good to see Senator Santoro in the chamber, because I know this has also been an issue for people in the aged care sector, where same-sex couples currently can be discriminated from accessing particular aged care facilities. It is an issue we will be dealing with in legislation next week, where I will be moving some amendments to ensure that people’s rights are recognised within the aged care sector.

I do not know whether there has been any discussion to date about the private member’s bill proposed by Liberal MP Warren Entsch. Today’s front page of the Melbourne Star newspaper indicated that Mr Entsch’s bill is only about establishing a reporting mechanism on discrimination, rather than actually addressing discrimination. What we need to be doing is dealing with legislation such as this that seeks to remove that discrimination. It is good to have reporting mechanisms on the discrimination that exists. It was indicated earlier that that is part of the inquiry that HREOC is undertaking. But, in terms of moving forward and addressing these issues, we need legislation that deals with discrimination, as this particular piece of legislation does.

I want to deal with one issue concerning the obligation that we as a country have to stand up for human rights and stand up in opposition to discrimination not just within Australia but also overseas. This is an issue that the Australian government has been very involved in. There was a human rights conference in Vienna in 1993, at which the Australian government committed to raising in the international arena issues of discrimination against people with respect to sexual orientation. The Australian government was very active in that. Indeed, when the Howard government was elected in 1996 it continued to play this role in raising issues about sexual orientation within the international arena and involving that in its human rights dialogue, for example, with countries such as China. But it is my understanding that the Howard government is no longer continuing that level of advocacy. Indeed, I am certainly keen to hear whether there has been a change in policy and, if so, why that has occurred. For me, that has been highlighted in a number of instances that have occurred recently, where we have seen same-sex discrimination in particular countries. I have written to the foreign minister and asked questions in Senate estimates regarding the need to ensure that these issues are raised and what representations the Australian government and the foreign minister have made about these circumstances.

One such issue on which I am yet to receive a reply relates to a situation in Uganda, where a newspaper published a list of names of people they sought to out as being gay or lesbian. Many of these people have subsequently been arrested and many others are in hiding; indeed, a number of them are part of the Uganda Green Party as well. The Ugandan government does not have a good track record on these issues, and I have asked the Minister for Foreign Affairs what representations are being made by the Australian government about these activities happening overseas.

I mention also the criminal sanctions for homosexuality that members of the government raised here when two young boys were hanged in Iran some time ago because of their sexuality. I have raised the issue before with the government about whether representations were made on this issue. My recollection is that the answer I received was that representations were made about opposition to the death penalty, but I did not hear that there were any representations made about these specific instances of the death penalty being imposed because of homosexuality.

I know the government has been active in this area in the past, and I want to encourage the government to continue to speak out in international fora about these issues for all people, whether they are Australian citizens or not. We had an example last year of an Australian tourist and a Fijian who were sentenced to two years jail for engaging in consensual homosexual sex, which was an offence under the Fijian criminal law. It so happens that the Fijian constitution was changed in 1997 so that there cannot be discrimination based on sexual orientation, and so their case was overturned in the Fijian court on constitutional grounds. But there was much activity within the Australian community on this issue, and I was certainly very involved in the activities, campaigns and writing to the foreign minister to ask him to speak out on this. But we did not hear any comment from the Australian government on that issue, so this is one area where I really encourage the federal government to take up the mantle they have held in the past in speaking out against this kind of discrimination when it happens not just in Australia but around the world.

We are seeing fantastic things happen around the world. The rest of the world is moving towards recognising same-sex partnerships. The list of countries that have decided to establish civil unions or civil partnerships is very long: Denmark, Norway, Israel, Sweden, Greenland, Hungary, Ireland, France, South Africa, Germany, Portugal, Finland, Croatia, Luxembourg, New Zealand, the United Kingdom, the Czech Republic, Slovenia, 10 states within the United States, next year Switzerland will establish civil unions, the Netherlands, large parts of Spain, Belgium, and three states in Canada. All these countries have recognised same-sex marriages so it is a direction that internationally we see the community moving in.

I do share the optimism of the speaker prior to me that we will get there in Australia. Because I do share that optimism that we will see change in Australia, I feel disheartened by the experiences of discrimination that people currently face. I am an optimist and I think we will see this discrimination removed, but until it is removed I feel for those people who continue to face that discrimination. I want to sum up with an optimistic comment, which again comes from Mr Justice Michael Kirby, who said:

The journey to enlightenment in Australia is by no means complete. But on the issue of sexuality, it has certainly commenced. As the United Nations High Commissioner for Human Rights told the recent conference in Montreal it is a matter of fundamental human rights and basic human dignity. In the end, it is not only about gays. It is about all people and the quality of freedom and mutual respect in the society that we want to live in. The momentum is unstoppable.

I agree with Justice Kirby that the momentum is unstoppable. I see this bill as part of that unstoppable momentum; hence, I commit the Australian Greens to supporting it and I commend it to the Senate.

Linda Kirk (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Sexuality and Gender Identity Discrimination Bill 2003 [2004]. Consistent with Labor’s longstanding policy of removing discrimination against the gay, lesbian, bisexual, transgender and intersex community, known as the GLBTI community, I support the intent of this bill. As I read it, the bill will provide avenues for redress for GLBTI citizens who have been discriminated against in the public and private sectors, and it will legislate against vilification on these grounds. In essence this bill will prohibit discrimination against sexual minorities, transgender and intersex citizens, and it legally recognises same-sex couples under Commonwealth law.

As I have said previously in this place, we live in a time when most Australians know someone who is in a same-sex relationship. This means that most of us have some understanding and appreciation of the difficulties these Australians face in their everyday lives because the law provides no recognition of their relationship. I firmly believe that the parliament should remove discrimination on the grounds of sexuality, and that we should outlaw harassment and incitement to violence on the basis of sexuality.

To remove discrimination the Australian Labor Party took action when we were in government, and we have continued to take action in government at the state level. In Labor’s policy platform we commit to supporting legislative and administrative action by all Australian governments to eliminate discrimination, including systematic discrimination on the grounds of race, colour, sex, religion, sexuality, disability, genetic make-up, political or other opinion, national or social origin, property, birth or other status. Specifically, and in the context of this bill, the Labor Party platform supports the enactment of legislation prohibiting discrimination on the grounds of a person’s sexuality. Labor strongly believes that every Australian has the right to be free from unlawful discrimination, vilification and harassment. To that end, homophobic violence and intimidation are regarded by us as totally unacceptable in a peaceful, tolerant society like ours.

My Labor colleagues and I are committed to taking comprehensive steps to address systematic discrimination against gay and lesbian Australians. We are committed to delivering equality between de facto heterosexuals and same-sex couples. Today I think it appropriate to acknowledge the strong interest that has been shown in this issue by the Australian Democrats, particularly former senator Brian Greig, who drafted the bill before us this afternoon. I would also like to put on the record that, whilst I believe Labor’s approach could differ somewhat in its terms and perhaps in its drafting, generally speaking we support the thrust of the bill before the Senate today because it is a step in the right direction. As I have said, Labor have a longstanding commitment to remove discrimination against same-sex couples, just as we oppose discrimination against other groups within our Australian community.

In recognition of the support that the Australian Labor Party has for its commitment in this area, Labor’s shadow Attorney-General, Ms Nicola Roxon, has recently publicly released an exposure draft of a bill entitled the Sexuality Discrimination Bill. This bill has very similar provisions to the one that we are looking at here today yet also some different approaches. But generally the thrust of the bill is the same. Currently the shadow Attorney-General and Labor are conducting consultations on relationship recognition for same-sex couples. The essence of what Labor wants to do is to remove discrimination in Commonwealth legislation, a process that the states have followed. It also needs to be done at the Commonwealth level in particular areas, for example social security, taxation, veterans’ affairs and Medicare.

Over the years, particularly in recent times, we have seen Labor state governments and those in the Territory take steps to address discrimination against their citizens in same-sex relationships under state and territory laws. But, somewhat disappointingly now, for 10 long years we have seen no attempt at all by this government to confront the legal obstacles that are experienced by gay, lesbian, bisexual, transgender and intersex Australians.

We have seen no attempt at all by this government to actually take seriously the genuine concerns about ongoing discrimination in a range of areas under federal law. As recently as just a few weeks ago, Labor called on the Howard government to address discrimination against same-sex couples in Commonwealth legislation—something that Labor have been doing for some time now. This call came after a recent decision by the Administrative Appeals Tribunal in which the AAT ruled that the definition of ‘spouse’ in taxation law means a man and a woman. The effect of this decision means that same-sex couples are subject to capital gains tax on property settlements after the relationship breaks up. This is in stark contrast to heterosexual de facto couples, who can access relationship breakdown laws and gain relief from them.

I understand that, whilst the AAT in their reasons did express some sympathy for the applicant’s position, they made clear that their hands were tied by the legislation and that they had no alternative but to interpret the legislation in the way I have just described—namely, that ‘spouse’ in taxation law means a man and a woman. This decision I believe clearly demonstrates the pressing need for this government to take action now to remove discrimination against same-sex couples in Commonwealth law, particularly but not exclusively in areas concerning financial matters. As we all know—and it is a disgrace—time and time again the Prime Minister and the Attorney-General ignore the continuing discrimination faced by same-sex couples in key areas such as superannuation, taxation, health and welfare benefits. And, despite the government’s promises in 2004, it has not even fixed superannuation properly for same-sex couples. It is still the case that Commonwealth public servants are not treated equally if they are in a same-sex relationship.

In the time available to me today, I would like also to draw the Senate’s attention to a national inquiry that has been referred to by a few other speakers here this afternoon. The Human Rights and Equal Opportunity Commission, HREOC, is conducting a national inquiry into discrimination against people in same-sex relationships in respect of financial and work related benefits. As other speakers have said here today, HREOC recently released a discussion paper on this topic and a detailed research paper which identifies Commonwealth legislation that discriminates against same-sex couples and their children. This was the second discussion paper released as part of the ‘same-sex, same entitlements inquiry’. In releasing the second paper, the President of HREOC, Mr John von Doussa QC said:

Same sex partners living in a genuine relationship are denied the entitlements most families take for granted, such as: carer’s leave when their children are sick; tax rebates for dependents; and a guarantee that their partner will receive their superannuation death benefits.

Human Rights Commissioner, Graeme Innes, said:

Discrimination occurs in many of the fundamental aspects of family life governed by the Commonwealth, including: employment conditions; health entitlements; social security; tax; superannuation; family law; aged care and migration.

That is virtually the full gamut of the areas of Commonwealth responsibility.

The same-sex, same entitlements inquiry received more than 350 submissions in response to its first discussion paper, and the inquiry is now inviting comments on the second discussion paper by 3 November this year. Already HREOC has identified more than 80 pieces of legislation in Commonwealth law that need to be changed to bring them into line with the rights conferred on heterosexual couples.

Labor’s track record in this area is very strong, commencing with the reforms implemented by the Keating government. By way of one example, the ban on gay and lesbian people working in the military was removed in 1992. I am proud to say that Labor state governments have achieved far-reaching reforms. New South Wales, for example, was one of the first to put gay and lesbian couples on an equal footing with those in heterosexual de facto relationships. Since then the other states have followed suit and have also moved forward and introduced significant changes. Labor is resolute in its commitment to removing discrimination against the gay, lesbian, bisexual, transgender and intersex communities; however, sadly for the people of Australia, the Howard government has completely neglected this area. Labor are working hard to gain office at the next election so that we deliver on our commitments.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. As you know, I was not planning to speak on the Sexuality and Gender Identity Discrimination Bill 2003 [2004], but I was very interested in the remarks that the previous speaker had made about the elevation of Labor state governments and the Keating government. Regrettably, in a speech where undoubtedly the senator spoke with a degree of sincerity about matters that she believed in, she was still able to involve, I thought, some fairly cheap political shots, to be quite frank. I think this is unfortunate. This is a debate which the community has had for a considerable period of time, and one which will continue. But the Howard government, I think, has a very strong record in the area of human rights, and I for one would not accept that this government is second to any government in ensuring that respect for human rights and the protection of human rights. We are all aware there are significant challenges in the modern community, but this is a debate in which I think the Labor Party will emphasise issues which perhaps are not issues with many in this chamber. But there is a variety, and so my comment to you, Senator Kirk, is that you are quite entitled to put a carefully thought out argument which puts your views but it would be a help if you could avoid the odd cheap shot in an area which is a very important debate.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

I rise this evening to contribute to the debate on the Sexuality and Gender Identity Discrimination Bill 2003 [2004]. I would at the outset make the general observation that the government is committed to removing discriminatory treatment in federal laws. This commitment intends to remove discrimination against all interdependency relationships. Indeed, both the Prime Minister and the Attorney-General have made public comments on the need for removal of discriminatory treatment at the federal level. The government is currently examining discriminatory treatment against interdependency relationships, but in this complex area it is important and appropriate to deal with the issue on a case-by-case basis.

I would like to just focus on the government’s commitment to protecting human rights. The government condemns discrimination as understood in international human rights law. It condemns such discrimination in all its forms. All in our society should have the opportunity to participate in our community and to experience the benefits associated with that participation. On the other hand, I also think that all in society should also accept the responsibilities that flow from such participation without fear of discrimination.

The Australian government is committed to the protection of human rights. Our approach to human rights is a reflection of our liberal democratic ideals. It is also a reflection of our belief that justice and human dignity are basic rights that all in society should enjoy. Human rights in Australia are underpinned by the interaction of important institutions within our legal framework. Australia is one of the oldest democracies in the world, with strong democratic institutions. Our Constitution and our common-law system are also important institutions which protect human rights.

In addition, current legislation, including anti-discrimination legislation at the Commonwealth, state and territory levels, protects and promotes human rights in Australia. Australia has a wide range of programs, services and support mechanisms designed to assist every Australian to achieve their full potential. The government is committed to ensuring that such programs and services target those most in need while encouraging all Australians to contribute in the community to the extent that they are able. At a federal level there is already an extensive framework of legislation protecting human rights and prohibiting discrimination on various grounds. The state and territory governments have also enacted their own anti-discrimination legislation and established various human rights institutions that operate in the various states and territories.

I would now like to now turn to some previous comments that the Prime Minister and the Attorney-General in particular have made in relation to sexuality discrimination. Both the Prime Minister and the Attorney-General have previously indicated, on various occasions, that the Australian government is committed to the elimination of discrimination against same-sex couples. This issue ought properly to be treated, as I said, on a case-by-case basis. I would particularly like to put on the record some comments that the Prime Minister made as far back as 24 August 2001, when he stated:

I think people take the view that individuals make their own preference, you know, choose their own lifestyle in these things and people shouldn’t be the subject of discrimination if they choose a particular lifestyle.

                 …           …         …

... I don’t think people should be in any way penalised or discriminated against if they are homosexual. I mean I certainly don’t practice any kind of discrimination against people on the grounds that they’re homosexual, I think that is unfair.

                 …         …         …

I mean my view is that we should be completely tolerant and fair minded about people’s sexual preference.

When asked about civil unions in December 2005, the Prime Minister stated:

I am strongly in favour—as my Government has demonstrated—strongly in favour of removing any property and other discrimination that exists against people who have same-sex relationships.

Also, in June this year, speaking in Sydney, the Prime Minister stated:

I am in favour of removing areas of discrimination and we have and I’m quite happy on a case by case basis to look at other areas where people believe there’s genuine discrimination, but I think they should be looked at on a case by case basis. I don’t think it’s the sort of thing that can be done in an across the board fashion. We made some changes in relation to entitlements a couple of years ago and if there are other areas of genuine discrimination, then I’m in favour of getting rid of them.

The extent to which sexuality discrimination—particularly differential treatment of same-sex relationships—exists in our society is a very complex question. It is a question which the government is looking at closely. The government believes that a single piece of legislation is not the most effective way to address the differential treatment experienced by persons in same-sex couples or those who identify their sexuality as other than heterosexual, and such legislation is likely to have unintended consequences.

The Democrat member’s bill is essentially a replica of existing federal anti-discrimination laws, such as the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992, with terms like ‘sexuality’ replacing ‘sex’ or ‘disability’. It is a blunt instrument for a complex task. For this reason the government believes that instances of inequitable treatment should be considered on a case-by-case basis with regard to the underlying legal and policy framework in which the discriminatory provisions operate. A good example of the need to give such treatment detailed consideration is superannuation. Changes to large programs, like superannuation, may involve significant future costs, and further work would need to be done to prepare those programs for those changes.

I would now like to look at action that has been taken to address differential treatment and discrimination. The government has a strong record of condemning discrimination in all its forms. The government’s practice has been to address discrimination where we find it. Indeed, the government already does much to remove differential treatment of same-sex couples. In the area of interdependency relationships, in particular, the government has already taken significant action to address differential treatment and discrimination.

I would like to look at superannuation, where this has been very evident. Superannuation laws have been changed to include same-sex partners as potential beneficiaries of death benefits in some circumstances. In 2004 the government amended the Income Tax Assessment Act 1936, the Superannuation Industry (Supervision) Act 1993 and the Retirement Savings Accounts Act 1997 to expand the range of potential beneficiaries of tax-free superannuation death benefits to include ‘interdependent relationships’. It is very important to note that this would include, for example, elderly siblings intending to live out their lives together, adult children living with and caring for their parents, as well as same-sex couples, who may not otherwise be recognised as dependants.

Tax-free superannuation death benefits could previously be paid only to spouses, to children under 18 years of age and to those who could establish financial dependency on the deceased. Special provision has also been made to include in the definition of ‘interdependency relationships’ circumstances in which a close personal relationship does not meet the other elements of the definition because of a disability.

Even after the amendments, it will be the governing rules of the fund which will determine whether or not a trustee can make a payment to a same-sex partner. The government’s choice-of-fund legislation will enable same-sex couples to choose a superannuation fund that best serves their needs—that is, one with governing rules that allow payments to same-sex partners.

Another area in which the government has made progress in eliminating discrimination against people in interdependency relationships is in the entitlements for Australian Defence Force employees. The government decided on 10 October 2005 to extend certain conditions of service entitlements to other interdependent relationships of ADF members which will include the same-sex partners of ADF members. Amendments will be made to ADF conditions of service, documents and relative determinations under section 58 of the Defence Act 1903.

Since 1 December 2005, ADF members in recognised interdependent partnerships, including same-sex relationships, have been eligible for the same range of conditions of service provided by Defence to those in recognised de facto relationships. The concept of interdependent relationships allows recognition of a range of relationships where there is a real reliance by the parties on each other and therefore has relevance to the members’ ability to balance work and family responsibilities by accessing conditions of service that are available for that purpose.

A wide range of work-family provisions is now available to assist all members of the Australian Defence Force in recognised interdependent partnerships. These include parental leave for all members with parental responsibility for a child, carers leave, compassionate leave and compassionate travel, housing assistance, rent allowance as a member with dependants or service residents, house-hunting trips, reunion travel, removals including for the non-service partner and/or family on breakdown of the relationship, separation allowance and bereavement payment to legal representatives.

Another area where discrimination has been addressed is immigration. In December 2005, the government asked the Minister for Immigration and Multicultural Affairs to bring forward a submission to the government on the scope of providing for the full range of interdependent relationships in applications for temporary and permanent skilled visas. In the area of migration, people who share an interdependent relationship with an Australian citizen or permanent resident are able to apply for interdependency visas to allow them to reside in Australia. This includes people in same-sex relationships.

Interdependency visas were created as a class of visa in 1991 by regulations under the Migration Act 1958. The regulations state that two people are in an interdependent relationship if they live together, are closely interdependent, have a continuing commitment to mutual emotional and financial support and are not related or part of the same family unit. The government, nevertheless, makes non-discriminatory distinctions in some areas such as in relation to marriage, adoption of overseas children and access to IVF.

Another area is in employment. Federal anti-discrimination laws do not cover discrimination on the ground of sexual preference in general terms. However, federal laws do address such discrimination. Discrimination in employment on the ground of sexual preference is a ground for lodging a complaint under the Human Rights and Equal Opportunity Commission Act 1986. The commission’s jurisdiction to inquire into such complaints arises from Australia’s obligations under ILO convention 111, the Discrimination (Employment and Occupation) Convention.

When a complaint of discrimination in employment on the ground of sexual preference is received, the commission attempts to resolve it through the process of conciliation. If the complaint cannot be resolved through conciliation and the president is satisfied that discrimination in employment has occurred, the president must report the matter to the Attorney-General. The president can also make recommendations to the Attorney-General to address any damage suffered by the complainant. The Attorney-General is required to present the report to parliament within 15 sitting days of receipt of the report.

Under the Human Rights and Equal Opportunity Commission Act 1986, HREOC also has the power to inquire into any Commonwealth act or practice which may be inconsistent with specified human rights. The same process of attempted conciliation, possibly followed by a report to the Attorney-General, applies. The Workplace Relations Act 1996 contains provisions that prohibit an employer from dismissing an employee on various specified grounds, including sexuality. Complaints of unlawful dismissal on the basis of sexuality can be lodged with the Australian Industrial Relations Commission.

I have looked at some areas where we have already taken considerable action, and the government’s commitment continues into the future. Despite the inherent complexity of reviewing such large schemes as superannuation, several key areas for reform are being discussed—superannuation, for example. The government remains committed to examining options to extend interdependency to members of Australian government superannuation schemes. Most Australian superannuation schemes are accumulation schemes which can be readily adapted to extend benefits to people in an interdependency relationship, with no additional cost to the scheme.

The PSSAP, which was opened to new public sector employees from 1 July 2005, is an accumulation scheme. By introducing the PSSAP, the government has enabled death benefits to be available to dependants, which can include a person in an interdependency relationship. PSSAP members can also nominate a dependant, dependants or a legal representative to receive those benefits. However, the closed defined benefits schemes, the CSS and PSS, have very prescriptive rules to determine eligibility for benefits.

Unlike accumulation funds such as the PSSAP, benefits in the CSS and PSS are met from the budget when they become payable rather than from the accumulated contributions and earnings of the individual member as they accrue, such as in accumulation schemes. CSS and PSS benefits are usually provided in pension form to eligible spouses and children and are payable for life in the case of a spouse. Extending eligibility for death benefits from the CSS and PSS to people in an interdependent relationship will increase scheme costs and the government’s unfunded liability because some people would then qualify for pensions, including lifetime pensions, which they would not otherwise receive.

Because of the design of these schemes, a range of technical matters and budgetary considerations need to be fully examined. Early options considered by the government have not proved feasible, and the government is seeking actuarial analysis of a broad range of options to advance interdependency for the CSS and PSS and across other Australian government defined benefit schemes. The government remains committed to making provision for CSS and PSS members in an interdependency relationship.

Australian immigration legislation has long had provision for Australian citizens or permanent residents to sponsor an interdependent partner for migrant entry to Australia. The interdependent partner visa subclasses are part of the family stream of the migration program. Until recently, however, there has been no provision for non-citizen primary applicants in a range of other visa classes to include an interdependent partner in their visa application as their dependant—that is, as a secondary applicant. This is also being looked at, and DIMA is working towards extending provisions in a range of other classes of visas to assist in this area.

Time does not permit me to go into areas in defence where the government is also looking at making changes. Suffice it to say, as I said at the beginning of my speech, that the government does have a commitment to removing discriminatory treatment in federal laws, and this commitment intends to remove discrimination against all interdependency relationships.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

It is really pleasing to be part of a discussion in this place where we have so much mention of the word ‘commitment’. I think it is very valuable at this time. It is a bit of a shame, really, that issues that do encourage us to look at what we can do to improve our laws are sometimes debated in this period of business late on a Thursday afternoon. A few of us are interested, but nonetheless we can reinforce the views.

The bill before us, moved by Senator Bartlett this afternoon, has a strong title which refers to sexuality and gender identity. When Senator Greig moved this bill and spoke on it, I remember hearing with interest that one of the first things he said in his contribution was that this bill was an attempt at moving forward a piece of legislation that had been moved—unfortunately at a time when I was not listening—by a previous Democrat senator, Senator Spindler, in 1995. What is most frustrating is that so many of the issues that came into the discussion in this place in 1995 and then again in early 2000 through Senator Greig need to be reconsidered now in 2006. I think there is a bit of a message here for all of us.

I have enjoyed hearing the discussions this afternoon by people around the chamber on the attempts that have been made across a whole range of legislation and also the commitment that is shared by all of us, I hope, to ensure that we do not support any legislation or a society that allows discrimination against anyone. The Sexuality and Gender Identity Discrimination Bill 2003 [2004], in particular, addresses those people who are identified as gay, lesbian, bi-gender, transgender or intersex. One of the more frustrating elements is that whenever we get into these discussions there seems to be great confusion and almost diffidence amongst people when they try to look at what the definition is. In terms of that process, it would probably be better for all of us if we looked at people first and, subsequently in the discussion, looked at the particular reasons that the legislation is applying to them.

In terms of this afternoon’s discussion, I want to put on the record my disappointment that now, in 2006, we still need to go through so many pieces of legislation, for which we are responsible at the federal level, that have not effectively provided safety, security and service for people who are from what has become known as the GLBTI community. We can all work together to implement the commitment that seems to be dripping from the various rhetorical statements that we have heard. There has not been in this place, in recent times anyway, any statement that any of these forms of discrimination should be allowed to continue. I think we have moved well past that stage, and that is something positive on which we can build.

We can go through the various realms of federal legislation—and we have heard several senators mention them already this afternoon. There are our social security services and then there are the superannuation debates that have been going on for so many years. Senator Sherry has been taking up the Labor cause in those debates for many years. There are also the areas around defence services, the specialised tax areas and issues of land and issues of title. Those are basic areas which all of us seek to work with, but they still contain elements whereby people who identify with the GLBTI community feel that they are not getting a fair go; they are not receiving the respect that all of us should be able to understand.

It is not good enough that we come here and reinforce our commitment to make it better. What we should be able to do, as Senator Fierravanti-Wells has been able to do in some ways, is point out what has changed. But in 2006 we should not be saying that we are moving towards establishing a result in this area. We should be able to say that we have achieved the result. It has been happening across all our states, although not as quickly as it should be. Discussions similar to those we are having here this afternoon have been taking place in every state and territory in Australia.

At this point in time, the legal system in each of those jurisdictions has moved closer to achieving equity than we have. That is not just my opinion. It has been put through the media; it has been addressed by law councils and, I think to our shame, to an extent by the United Nations. The definition of equity has not been met by our federal legislation, and no-one denies that. That is almost more disappointing: no-one denies that we have not achieved equity. What we discuss is that we are moving towards it. The Prime Minister has stated his commitment to making sure that it will happen. The Attorney-General has also done so. People from the Labor Party have said that they are moving towards it. Our shadow Attorney-General, Nicola Roxon, has moved a bill in her own name in the lower house that aims to remove discrimination. But how long does it take? Will we be sitting here at this time in general business on a Thursday afternoon in 2007 having another go at ticking off the audit of what has been achieved and what has not—once again reinforcing our general and combined and strongly stated commitment?

If we are going to provide the service to constituents across our community for which we have been elected, instead of saying that we are moving towards achieving a result we should be able to say, within a reasonable period of time—and I hesitate to put a date on it; it would be far beyond my ability to do so—that we can point to the fact that, under the social security legislation, all areas of interdependent relationships are acknowledged and that the rules have changed so that people are treated the same way. We should be able to say that the promises that have been made in this place as a result of previous debates on superannuation—where year in, year out the Australian Democrats, supported at times by the Labor Party, have moved clauses in the midst of the other legislation—will ensure that there is equitable treatment of people in interdependent relationships. In the last round of debates on superannuation, the commitment was made that the changes would occur. We have been told again that the changes will occur, that the commitment exists, but the changes have not been made.

We need to be certain that we will not always be talking about what is going to happen. We need to face our responsibilities under the raft of international law, state law and federal law to ensure that equity will be in place and that we will no longer be talking about other people’s responsibilities or how one piece of legislation works this way and then how we can always go to the anti-discrimination commission and implement another piece of legislation in another way. We need to ensure that there will be such a strong underpinning of safety and security in our federal system that there will be no need for fragmentation.

When we have achieved that level of certainty, we will have done our job. We will then be able to say that people from the GLBTI community are being given the rights, the responsibilities and the respect that they each should have as a member of the community and that, under law, they will be seen as the same as other people in terms of the way we impose legislation. Their rights as individuals will be respected and protected across all other forms of law.

I remember when I was working in the Australian Public Service in the 1980s. There were great debates at that time around the superannuation laws and there were particular debates about the human rights treatment of people who were then identifying as gay partners. It was pretty tough in the Australian Public Service in the eighties to identify as being part of a same-sex relationship for the various kinds of conditions of service that applied to partners. At that time, the final decision and delegation as to whether your partner would be able to obtain basic rights, such as travelling when you were moving to a new place of employment or acceptance to attend conferences as a right as a partner, was made at various levels in the Australian Public Service. We would actually try to find ways around the regulations to ensure that delegates would be able to say, ‘Yes, you and your partner will be treated as a partnership for these entitlements.’ We yearned for the day when we would not have to play those games around the rules and legislation, so that people would be able to identify in their own right and say, ‘This is me, this my partner, and this is how we interrelate.’ That has improved, but I am not confident that that is the standard right for people across our community in all forms of interaction with their employers and with the various organisations to which they wish to belong.

That is the basis of the legislation which is in front of us this afternoon. It is very detailed legislation, and I believe that was done quite deliberately—in 1995 and, again, two or three years ago when Senator Greig brought it forward. It remains current. If you go through the sections of the bill in front of us, each of those sections needs to be addressed. It is disappointing that, in 2006, I cannot feel confident as a member in this place that the people who put me here would know that this is their right. I do not feel confident that the same people with whom I worked in 1985—some of whom are still surviving in the Australian Public Service, bless them—would have the same rights as we were trying to achieve for them in the early eighties. It should not be a debating point. It should not need to be discussed—but it needs to be, because it needs to be entrenched in law.

It is one of those arguments: should it be in law before it is accepted in our general environment, or is it the other way around? Because in many ways, what we are debating is not just what is going into the legislation; it is the confidence that we have as a community that this is the right thing to do—and that is one of the challenges for those of us who have the privilege of being in this place and having that ability to make an impact through change and to be leaders. If our parliaments can state proudly that we believe that the GLBTI community must have the same protections, rights and responsibilities as every other form of community that we have, that is actually what permeates social conscience. That is how communities think and behave. There is no question. The particularly frightening element of this legislation, which has to look at violence and discrimination against people and their being treated in bad and evil ways—and I use those adjectives directly—is that we should not need to do that, but we do. What we can do as a community and as a parliament is ensure that we say that should not happen and that we will legislate to ensure that it does not happen. More importantly, we should say publicly that it cannot happen.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

In commencing my contribution to this debate, I recognise Senator Moore for her smooth, well-reasoned and, I think, very articulate contribution to this debate on the Sexuality and Gender Identity Discrimination Bill 2003 [2004]. There are some points that I disagree with Senator Moore on, but I would have enjoyed listening to her explore more fulsomely some other aspects of the legislation. Indeed, had she taken her full allotted time it would have been of great interest to me and, I am sure, the people of Australia.

Nonetheless, I would like to touch on Senator Moore’s closing comments. Senator Moore did mention that this was not just about the legislation; this was about a broader reaffirmation to the Australian community about the intentions of the parliament and the empathy that it has for situations of discrimination. I believe it is specifically about the legislation. We cannot just go into motherhood statements. We need to make sure that all legislation that passes through this place is well drafted and well crafted, that it honours the original intention of the drafting and that there are no unintended consequences of such debate.

But, in opening my contribution to this debate, I would like to quote former Senator Greig, who, in an online opinion piece on Tuesday, 17 January this year, said:

The Howard Government has done more to legally recognise same-sex relationships in the past 13 months, than previous Labor governments did in 13 years.

He went on:

Under Howard—

and I would prefer that to read ‘Prime Minister Howard’—

same-sex couples have limited rights to superannuation death benefits, are recognised in passport application processes and beneficial definitions in antiterror laws, while those in the military now have equal rights to relocation and accommodation expenses and access to defence force home loan grants.

I would suggest that former Senator Greig has recognised the immense contribution that this government has made. It is not just about motherhood statements. It is not simply about putting forward a general feeling or allowing people to pick up on the intentions of the Senate. This is about directly addressing discrimination in all its forms across the entire legislative framework on a case-by-case basis.

I would also like to remind the Senate that Senator Nettle, in her address, touched on the outrage and, I would say, the evil of hanging two young men in Iran for being homosexual. This of course is reprehensible. It is intolerable in a modern day and age to discriminate against people so vehemently as to put them to death for a sexual practice. But in saying so, and in agreeing with Senator Nettle, you could understand my concern when the Greens senators seem so keen to align themselves at various levels with the fundamentalist Islamic movement that is arising through parts of the Middle East. And rather than try to readdress this specific issue, I would like to read another quote from another senator in this place, Senator Mason. During an adjournment speech, Senator Mason said:

The fundamentalists of Hezbollah make no bones about their belief that sexual relations between consenting male adults should be punishable by death. In fact, only last year the Lebanese Shi’ite movement’s Iranian patrons hanged two young men for that crime. There were Hezbollah flags in abundance during recent Australian street protests against Israel’s military action in Lebanon, but Australian Greens Senator Kerry Nettle did not let the flamboyant presence of the jihadist lobby deter her from speaking at an anti-Zionist rally in Sydney.

We know, and it has been reconfirmed today, that Senator Nettle is an outspoken supporter of same-sex marriages and legal equality for gay couples, as many senators in this place are. And yet the senator from New South Wales was willing to make a common cause with exponents of a movement that would make homosexuality a capital offence. Senator Mason also said this is a sinister:

… ‘Red-Green’ alliance between the Left and Islamic fundamental radicalism … [It] is a particularly bizarre manifestation of the ‘politics makes for strange bedfellows’ principle.

Senator Mason announced that in an adjournment debate, and I salute him for identifying the ridiculous alliance that has arisen where you can support fundamentalist Islam and same-sex relationships. It is unbecoming of any political party.

I have mentioned that former Senator Greig has already recognised the government’s commitment to this cause and the achievements we have made. What I would like to suggest to the Senate tonight is that we really need to redefine this bill. This bill should not be confined to sexuality and issues of sexuality. I really do believe that this issue is about interdependent relationships. They can be sexual relationships, but they can also be relationships based simply on trust and need and requirements. I do not think we should confine our arguments in this regard.

The extent to which sexuality discrimination, particularly the treatment of same-sex relationships, exists in our society is a very complex one. It is a question that this government has looked at and continues to look at. It has reaffirmed its commitment, through the Prime Minister and through a number of our ministers, to ensure that it can answer an increasingly complex issue in the best and most positive possible way. This government does not believe that a single piece of legislation is the most effective way to address the inequity and discrimination that undoubtedly do exist at some levels in our society. My fear is that this bill is essentially a replica of existing federal antidiscrimination laws, like the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992, but simply with terms like ‘sexuality’ replacing ‘sex’ or ‘disability’.

It is effectively a very blunt instrument. It is akin to trying to peel an orange with a sledgehammer; it is not particularly effective. The result is the casing will ultimately be removed, but not in a productive or effective manner. It is for this reason that the government believes that instances of inequitable treatment need to be considered on a case-by-case basis with regard to the underlying legal and policy frameworks in which they find themselves. There have been numerous examples given by other senators today, such as superannuation. This government has made major changes in that area. We have talked about Australian Defence Force employees. We have talked about changes in the immigration act and employment. We have recognised these things, and it is right that we recognise the strides that have been made in this area.

This government would be perfectly entitled to rest on its laurels in so many areas. It was announced today that unemployment is at record lows; job growth and participation are at record highs. Interest rates are not only about three full basis points lower than the average achieved under Labor, but a full 10 per cent lower than the mortgage rates that householders had to pay during the Keating, Hawke and Beazley dynasties, that were going on when they were in charge of the Treasury benches. So while this government is entitled to rest on its laurels, it is not going to because it is continuing to make reforms. It is continuing to provide changes to ensure better aged care for the citizens of Australia. It is continuing to provide low-inflation figures and ensuring that the inflation tiger does not take hold. It is continuing to challenge the current thinking with regard to education policy. And it is continuing to talk about issues such as removing discrimination from agendas. So while it is entitled to rest on its laurels, it is not going to.

We are going to propose a range of changes going forward. These changes are already in the pipeline; we have a vision for the next 10, 20, 30 and 100 years for this country. It is a prosperous vision; it is a vision where all Australians can live in harmony and peace and equality. It is a vision that only the coalition government has, I might add. Part of this vision for the future of Australia—a fairer, more equal and happier, more productive Australia—is related to removing discrimination at all levels.

There are further changes to be made with regard to superannuation. There are further changes to be made with regard to immigration. There are further changes that are going to be made with regard to defence. Some of those changes have already been outlined today, but one of the key elements of this change—

Debate interrupted.