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

by leave—I move amendments (1) to (5), on sheet 5404 revised, together:

(1)    Schedule 1, page 3 (after line 3), before item 1, insert:

1A  Subsection 5E(1)

Insert:

de facto partner means a person in a de facto relationship.

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship:

             (a)    in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                   (i)    the length of their relationship;

                  (ii)    how long and under what circumstances they have lived together;

                 (iii)    whether there is a sexual relationship between them;

                 (iv)    their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                  (v)    the ownership, use and acquisition of their property, including any property that they own individually;

                 (vi)    their degree of mutual commitment to a shared life;

                (vii)    whether they mutually care for and support children;

               (viii)    the performance of household duties;

                  (ix)    the reputation, and public aspects, of the relationship between them;

                   (x)    the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

             (b)    a de facto relationship may be between two people of the same gender.

(2)   Schedule 1, page 3 (after line 3), before item 1, insert:

1B  Subsection 5E(1) (at the end of the definition of non-illness separated spouse)

Add:

      ; or (c)    who is a de facto partner.

(3)   Schedule 1, page 3 (after line 3), before item 1, insert:

1C  After paragraph 5E(2)(a)

Insert:

           (ab)    the person is a de facto partner, or a person in a de facto relationship; or

(4)   Schedule 1, page 3 (after line 3), before item 1, insert:

1D  Subparagraph 5E(2)(b)(iii)

Omit “marriage-like relationship”, substitute “de facto relationship”.

(5)   Schedule 1, page 3 (after line 3), before item 1, insert:

1E  Section 11A (and the heading)

Omit “marriage-like” (wherever occurring), substitute “de facto relationship”.

These amendments, as people can see, also address the existing discrimination in the Veterans’ Entitlements Act with regard to people with same-sex partners. They redefine the definitions of de facto partner and de facto relationship to include people in same-sex relationships as well as opposite sex relationships. That is, of course, an issue on which the Democrats have put forward amendments many times over the years. We have done it quite a number of times just this week and, indeed, four or five times just today, so I will not go through the arguments in great detail. We have just had one of those arguments with regard to the previous piece of legislation to do with judges. But I do believe I have to, partly because of the contribution of the minister in the previous debate on the amendments that the Democrats moved in relation to judges’ pensions. He quite explicitly said, ‘If you remove this discrimination against judges and give judges with same-sex partners access to the pension, what are you going to do about Defence Force people?’ The veterans community was an explicit example that he gave. This is what we would do about it: we would move an amendment to the Veterans’ Entitlements Act as well.

That just shows, frankly, the complete intellectual bankruptcy, I would have to say, of the argument put forward by the minister in the previous debate, because the government refuses to progress legislation which sits on the Notice Paper in the Senate that would deal with all of these changes en masse and in a way that is completely consistent with the Human Rights and Equal Opportunity Commission report, which has examined the issue thoroughly over many months. Indeed, it examined it so thoroughly that that was the excuse that the government gave for not referring that piece of legislation to a Senate committee. The government said that it has already been examined by HREOC, the Human Rights and Equal Opportunity Commission, and that we do not need to send it to a committee because they have already done the work.

That being the case, there is no reason to not proceed with that straightaway. Obviously, the government would not do that, so the next approach is to move amendments to each of those pieces of legislation, each of those acts, as amending bills come through this chamber. We have had many amending bills coming through this chamber this week which have provided many opportunities to remove this discrimination. So, frankly, the argument that Senator Johnston put forward, as the minister in the previous debate to do with judges’ pensions, is simply specious. He may or may not have known, but this particular amendment that we are dealing with now, to remove that discrimination with regard to the veterans entitlements, was certainly before him, having been circulated in the chamber.

I will read briefly from the summary in the Human Rights and Equal Opportunity Commission report so that people are clear that this is not just a matter of some high-minded principle about equality or removal of discrimination; this is about explicit and very direct negative impacts on veterans. And they are veterans. The government’s speech with regard to this legislation, quite understandably and appropriately, in glowing terms talks about the government’s ongoing commitment to Australia’s veteran community and to assist veterans who have been disabled as a result of their service for our country and our war widows and war widowers. After that, there should be this in brackets: ‘Unless those veterans’ partners are of the same sex—then our commitment does not exist.’ So, if you are a partner of a veteran, the government are pleased to have this legislation before the chamber to demonstrate their ongoing commitment to you—unless it is a same-sex partner, and then they do not have any ongoing commitment to you and you do not have any entitlements at all. That is simply the case. I cite the findings of the Human Rights and Equal Opportunity Commission:

Australian Defence Force veterans and their families are generally entitled to a range of special benefits and entitlements in recognition of their military service.

However, many of those benefits are not available to veteran same-sex couples and their children.

So we have this range of special benefits and entitlements to veterans and their families in recognition of their special service, but if your partner is a same-sex partner then there is not that recognition of your service. Why is it that your service in the Defence Force, a very special and important type of service to the Australian nation, is not recognised as completely and fully if your partner happens to be of the same sex? How does that show recognition of your special contribution of military service?

To detail the examples, the same-sex partner of a veteran cannot access the war widows and widowers pension, the very specific benefit that we are increasing here, quite appropriately and with the support of the Democrats. We support increasing by $10 per fortnight the former domestic allowance component of the war widows and widowers pension and amending the way it is indexed. But the simple fact is that it is available to opposite sex partners of deceased veterans; it is not available to same-sex partners. Their contribution is less valuable. That is a simple legal fact as the law now stands and it will remain that way until an amendment such as the one I have put forward on behalf of the Democrats is passed.

The same-sex partner of a veteran cannot access war widow or widowers pension and they cannot access bereavement payment. I ask senators to think about how that would feel. It should not need much imagination. When your partner dies—and obviously in the case of veterans they can be partners of decades-long standing—it is not just that you do not get the payment; it is that you do not get the recognition. Your relationship with your partner who has just died, a lifelong partner in some cases, is not recognised. That, I suggest, is something that can strike very hard at people, and it should not have to happen.

Same-sex partners cannot access war widow or widowers pension, bereavement payment, gold repatriation card, income support supplement, partner service pension or military compensation. I say in passing that military compensation can include the sorts of people I was talking about in my speech in the second reading debate or injured servicepersons. To use a quote from one of the people who gave evidence to the HREOC inquiry:

Gay war veterans laid down their lives or were injured for our country—

in the same way as heterosexual war veterans.

They protected us. We should protect them and their families. Why are their families less deserving of being afforded this protection?

One day I would like an answer to that question: why are their families less deserving of being afforded this protection? There is no excuse for this continuing discrimination. On behalf of the Democrats I repeat our commitment to continue to push on this issue until the discrimination is removed, whether it is under the Veterans’ Entitlements Act or under the other 57 pieces of legislation that were identified by the Human Rights and Equal Opportunity Commission.

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

The Labor Party understands the position that the Democrats are putting in this debate. It is a matter they have diligently been progressing this evening in a range of other legislation and during the week. The Labor Party’s position on this has been articulated by me and by others. We have said that, if these are tagging amendments, we understand and support the principle but we are not going to agree to the actual amendment. This is, on balance, one of those in that frame.

It is also the case that we do not want to contribute without some idea of what the cost would be. No costings have been provided. As we have said, Kevin Rudd is a fiscal conservative and he is not going to allow these things to provide an attack on the budget. We do not think that they are matters that go to the budget issue per se. They are, by and large, moral issues. Labor has proposed a way of dealing with this. The Human Rights and Equal Opportunity Commission has provided a way forward and a model that Labor prefers. I understand that it differs from the model that has been put forward by the Democrats. We also think that the process of an audit to look at the Commonwealth legislation and the Commonwealth regulations, guidelines and procedures does need to be progressed in a meaningful way to ensure that there is meaningful removal of discriminatory provisions within the legislation. It is no easy task and it is even more difficult from opposition.

On that basis, we are not prepared to support the amendment. I do not use the word ‘oppose’ in this instance. I do understand that the Democrats have been consistent in this principle. But I think that the Democrats understand the position that I have articulated. We have a similar view but perhaps a different way of getting there. We are not going to manage it from opposition by amending the government’s legislation. It is a matter that will take some time for a government to do.

We have heard this evening from the Minister representing the Attorney-General in this place that the government is considering it. I think the words, although they seemed to warm his heart, were a little hollow. The government has had 11 years to deal with this matter. The HREOC report has been released and available, and they have not commented on or provided a response to it in a meaningful way. That is a shame. This government, even in the last week of this session—that is, potentially, if you believe the Treasurer—has not really provided support or clear direction in this area by using the phrases ‘we will’ or ‘we will commit to’ or ‘the coalition will’. They have been saying ‘considering’, and unfortunately Labor knows what that in fact means. It means: ‘We will consider it for a very long time and try not to do anything unless absolutely forced into it.’

Chris Ellison (WA, Liberal Party, Minister for Human Services) Share this | Link to this | Hansard source

Just for the record, the government does not support the proposed amendments. The government’s position on this issue is very clear and well known. Senator Johnston outlined the government’s position in more detail in the previous debate. I will not traverse the same ground and detain the Senate any longer, but this is a matter that was the subject of the Human Rights and Equal Opportunity Commission report, which was handed down three months ago. The government is considering that report. In relation to these amendments, the government is opposed to them.

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

Just very briefly, I understand the position that both the minister and the shadow minister have taken. I think that Senator Johnston’s contribution and reasons are somewhat at odds with the reasons given by a range of other ministers on various other similar amendments around the place. But that is neither here nor there. The bottom line is that the government are not going to do it. I think it is pretty clear what the other reasons are as to why the government are not going to do it. We all know they could have done it years ago. They did, eventually, after a lot of pressure from the Democrats, do at least part of it some years ago in regard to superannuation. They could have done it a long time ago if they wanted to do it; they have not. That is obviously clear.

With regard to Labor’s position, again, I understand it. I appreciate the desirability of costings. I do think it is a bit of a problematic argument to use in the sense that this measure of $400-plus million that we are about to pass was not on the table yesterday. It is suddenly there now. Money can appear pretty quickly when the political desire is there. I am wary of the principle of whether or not you can afford to remove discrimination, particularly in the current fiscal environment where you obviously could afford it. It is saying: ‘We would like to remove discrimination, but we cannot actually afford it.’ I understand it on principle, but I think that, in a practical sense, it has its problems. Either way, we shall persevere and one day we shall succeed.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.