George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports the principle underlying the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the related bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. That principle, stated broadly, is that nobody should be discriminated against on account of their sexuality. The bills therefore repeal or amend all provisions in Commonwealth law which treat homosexual couples less favourably than heterosexual couples.

Just as, in previous generations, Australian parliaments have legislated to protect our citizens from discrimination arising from their gender, race or religious belief, so now, in the early years of the 21st century, it is high time that the same principle were applied to protect people from being discriminated against on account of their sexual orientation. It is high time that we acknowledged that the domestic arrangements of gay and lesbian Australians ought to be respected and treated on the same footing as heterosexual de facto couples. I should stress that nothing in these bills contemplates so-called ‘gay marriage’. Both sides of politics in this country accept that marriage is a unique relationship which can only exist between a man and a woman. To recognise that—which has been a cultural commonplace in almost every human society since civilization began—is not to discriminate against gay people or to treat their domestic relationships with disrespect; it is merely to acknowledge the unique incidence and characteristics of marriage.

The Liberal Party’s support for this legislation reflects our deep commitment to the intrinsic dignity of every human being and our deep commitment to their fundamental right to lead their own lives in their own way. Like gender, race and religion, sexuality is intrinsic to identity. It is simply no business of society’s to dictate to its members about matters which are so private that they define a person’s very sense of self. But it is the obligation of society to ensure, as a basic principle of fairness, that its members are protected from unlawful discrimination and enjoy the right to equal treatment. As the former Leader of the Liberal Party, Dr Brendan Nelson, said on the second reading of this bill in the House of Representatives on 4 June:

We believe in the equal right of every Australian citizen to be treated with dignity and respect. We believe that all must have an equal right to lead their lives in their own way, according to their own choices and their own decisions, so long as they respect the equal right of all others to do the same. We believe that every Australian is equally entitled to a fair go regardless of who they are, where they live or whether their parents are right or poor. They are entitled to equal treatment regardless of the colour of their skin, the God whom they worship ... the political beliefs which they hold, their gender or professed sexual orientation.

I point out to honourable senators that the opposition supported the second reading of this bill in the other place. This is a position which has been strongly supported by the new leader of the Liberal Party, Malcolm Turnbull.

Let me say bluntly that this legislation has been too long in coming. I was one of many who sat on the back bench in the previous government who urged the redressing of the wrongs which this legislation at last seeks to address. As I told the Senate on 12 October 2006:

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.

But I can hardly claim to have been one of the more important voices in the Liberal Party. On an occasion such as this I must in particular mention my friend the Hon. Warren Entsch, the former member for Leichhardt, who championed this cause with tenacity throughout the latter years of the Howard government. Mr Turnbull, whom I mentioned before, has been a champion of this issue since well before he was elected the member for Wentworth in 2004. There have been many others—great Liberals such as Senator Marise Payne, Mr Petro Georgiou, the Hon. Christopher Pyne and Senator Simon Birmingham are a few of the names which come to mind—who have fought for the rights of gay Australians for many years, in particular during times when the climate of the Liberal Party was rather less congenial in relation to this issue than it is today.

Despite my disappointment that these reforms were not introduced by a Liberal government, I cannot let this occasion pass without pointing out that law reform in this area has, at critical times, been progressed by Liberals. In fact, the first time an attempt was made to reform the law in this area was in 1972 when a Liberal member of the South Australian parliament, the late Murray Hill, the father of our distinguished former Senate leader Robert Hill, introduced into that parliament a private member’s bill decriminalising homosexual acts between consenting adults. The first time the Australian parliament debated the matter was on 18 October 1973—35 years ago this week—when another great Liberal, a former Prime Minister, no less, Sir John Gorton, moved in the House of Representatives to decriminalise homosexual behaviour.

We have come a very long way in a generation and a half. And, although these bills are overdue, they have been overdue for a long time. It is a shame the Howard government did not act, yet it is equally a shame that neither did the Keating government nor the Hawke government. The fact is, from the time Australian society repudiated the idea that homosexual conduct was a crime and accepted that homosexual people should be allowed to get on with their lives just like everybody else, it was always appropriate to include them within the scope of antidiscrimination laws and to repeal laws which specifically discriminated against them.

The opposition does not regard this legislation as an attack on the family or upon family values. I have never been able to understand the argument that the formation of households is somehow a threat to family values. By recognising and supporting the formation of stable households by gay and lesbian couples, the legislation if anything reinforces social stability. In that regard, I might point out that, in their evidence before the Senate inquiry, the Australian Christian Lobby expressed their support for the bills, and they were not the only witnesses of a conservative disposition who did so. Nor have I ever been able to understand the attitude of some people who yield to no-one in their hostility to ‘big government’, in their conviction that governments have no business telling their citizens how they should run their own businesses or spend their own money, yet seem perfectly comfortable with governments telling their citizens whom they may love and how they may love them. Liberals, and respectable conservatives too, believe that governments should let people make their own decisions about how they live their lives, provide a stable framework within which they may do so, and leave them alone.

Although, as I have said, the principle underlying this bill, and the cognate bill, has the opposition’s strong philosophical support, I must express disappointment at the manner in which these important bills have been handled by the government. The proposed government amendments to this bill were first received by the opposition at about 5.30 this afternoon, at a time after the Senate committee report had already been tabled in the chamber and almost 4½ months since the bill was introduced into the House of Representatives. We have yet to see the foreshadowed amendments to the cognate bill. I understand that the committee stage of the bills will not take place until the next sitting week of the Senate. Until such time as the opposition has had the opportunity to consider the amendments and the report of the Senate committee, we will of course reserve our position in relation to any particular matters which they may raise. Nevertheless, as I have indicated this evening, the position of the opposition—and it is a position based profoundly on Liberal philosophy—is to support the principle underlying the bills.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. This bill seeks to eliminate discrimination against same-sex couples and the children of same-sex relationships in Commonwealth legislation that provides for reversionary superannuation benefits upon the death of a scheme member, and in related taxation treatment of superannuation benefits.

The Greens support the removal of discrimination in all areas of federal law, and we do not want to see the Same-Sex Relationship (Equal Treatment in Commonwealth Laws-Superannuation) Bill 2008 delayed any further. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed immediately.

The Greens have a strong track record of defending the rights of lesbian, gay, bisexual, transgender and intersex people. We believe that all members of our community are entitled to equal treatment before the law and by the community. There has been discussion and public debate about the removal of same-sex discrimination for decades. The time has come to take action and make this happen.

The first stage of the Rudd government’s election promise to remove discrimination against same-sex couples in more than 100 pieces of Commonwealth legislation follows a 2007 Human Rights and Equal Opportunity Commission report which highlighted that at least 20,000 same-sex couples experience systemic discrimination daily. The Australian Greens believe that freedom of sexual orientation and gender identity are fundamental human rights. The need for acceptance and celebration of diversity, including sexual orientation and gender diversity, is essential for genuine social justice and equality.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 amends the Commonwealth civilian and military defined benefit superannuation schemes, the parliamentary, judicial and statutory legal officer pension schemes and the pension scheme for the Governor-General. As I have already outlined, while the Greens welcome the introduction of this long-overdue piece of legislation, the issue of providing equality to same-sex couples in superannuation entitlements has been a subject hotly debated in this place for more than a decade—long before I was here—yet only now are we seeing any real movement on this issue.

The Greens do not think people should be discriminated against on the basis of their sexuality and have some serious concerns which we believe need to be addressed before universal equality is achieved for same-sex couples and their children. In particular, along with other key witnesses we are concerned that, while the government’s proposed legislation will provide superannuation entitlements for same-sex couples who have their money tied up in Commonwealth super schemes, for those who have their money tied up in commercial super schemes the discrimination may very well continue. I should point out here that almost 90 per cent of Australians have their super tied up in private schemes rather than public schemes, so we are only guaranteeing justice for 10 per cent of the population.

Where a superannuation fund provides for recognition of an opposite-sex relationship as a de facto relationship, we believe this should be non-discriminatory. While this bill specifically legislates for judges, veterans and Commonwealth public servants, it allows private superannuation firms to remove discrimination if they choose to yet it does not actually mandate them to do so. While the Greens are indeed pleased to see the government commit to its election promise by removing same-sex discrimination in all areas of law, we are disappointed to see that this legislation does not specifically mandate private superannuation firms to stop discriminating against same-sex couples—considering that around 90 per cent of Australians have their super tied up in private funds.

The Superannuation Industry (Supervision) Act 1993 regulates private superannuation schemes. Where private superannuation trust deeds refer directly to the definitions outlined in the SIS Act, they will have the immediate effect of including same-sex couples. Yet, as I have outlined, this legislation, in its current form, does not require all trust deeds to incorporate these definitions. The Greens believe that in order for full equality to be realised for same-sex couples with respect to this legislation, the Superannuation Industry (Supervision) Act should mandate that where an individual superannuation fund recognises opposite-sex de facto couples they must also recognise same-sex de facto couples. We would encourage the government to stand by its commitment to remove discrimination against all same-sex couples, whether they work in the private or the public sector.

The Greens also welcome the new definition of a ‘couple relationship’ contained within this bill. We particularly support the explicit reference to same-sex couples in the definition of partner and the addition of registration of a relationship as evidence of the existence of a couple relationship. As I outlined in the additional comments to the chair’s report into this bill, the Greens particularly support point number 17 in HREOC’s submission, which states:

The combined effect of replacing the term ‘marital relationship’ with ‘couple relationship’ and replacing the phrase ‘husband and wife’ with ‘partner’ ensures the equal treatment of same-sex and opposite-sex relationships.

This is in fact what we are here to talk about—removing all forms of discrimination.

I would like to outline that the Greens do not support the committee’s recommendation that the definition of ‘couple relationship’ in the bill be amended to read ‘marital or de facto relationship’. We believe that if the government were to proceed with this recommendation, its aim of achieving equality for same-sex couples is an absolute furphy and would not be achieved. Further to this, the Australian Greens support the recommendation put forward by the Australian Coalition for Equality that the recognition of registered relationships needs to be completely separate from the distinct recognition of de facto relationships. It is for this reason that the Greens believe that an umbrella term of a ‘couple relationship’ be adopted to ensure the courts do not treat married, registered or de facto couples differently, in that each will have their own unique criteria but will be provided with equal couple relationship entitlements.

Another issue that was raised during the committee inquiry into this bill was to ensure that children born into same-sex families have the same rights and entitlements to superannuation benefits as children born into opposite-sex families—a basic right for children that is currently denied. The bill expands the changes to the definition of ‘child of a relationship’ by adding the concept of a child who is the ‘product of a relationship’, which caused significant confusion during the inquiry. Many witnesses claimed it was ugly language without any legal precedent. During the inquiry in Sydney, Professor Jenni Millbank suggested to the committee that the ‘product of a relationship’ concept was attempting ‘to do too many things while pretending it is not doing very much and that the ensuing confusion and uncertainty will deprive the people of their rights rather than grant them rights.’

It is for this reason that the Greens, along with other key witnesses, have concerns about the terminology ‘product of a relationship’ being used to define a child. While we support the need for a more concise and legally tested definition of a child, the Greens do not support the committee’s recommendation that a review be conducted to determine the necessity of a definition to be included within this bill. We therefore believe that the terms used to define parents and their children be simplified wherever possible in this and similar legislation to ‘parent’ and ‘child’—because that is precisely what we are talking about—that it be applied consistently to ensure children across Australia are equitably included and the distinction between parents, co-parents and stepparents are not inappropriately or unnecessarily blurred.

The Greens support the removal of discrimination in all areas of federal law, and we do not want to see the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill delayed any further. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed immediately. It is not good enough to suggest that a person is half pregnant. You are either pregnant or you are not. If we are to remove discrimination, we should be doing it across the board.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to support the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. In doing so, I also want to place on record my full support for the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 debated earlier in this chamber. Both of these bills represent a major component of an historic suite of legislation intended to implement Labor’s commitment to the protection of human rights in Australia and of equity in our community. They are both bills to amend Commonwealth laws that discriminate on the basis of sexuality.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 will amend legislation touching on Commonwealth government defined-benefit superannuation schemes, relevant taxation provisions, and statutes related to the regulation of the superannuation industry. The superannuation schemes covered by the bill include: the Commonwealth Superannuation Scheme, the Defence Force Retirement and Death Benefits Scheme, the scheme under the Superannuation Act 1922, the Defence Forces Retirement Benefits Scheme, the Judges’ Pensions Scheme, the Federal Magistrates Disability and Death Benefits Scheme, the Governor-General Pension Scheme, and the Parliamentary Contributory Superannuation Scheme.

The bill introduces a long-overdue reform. It removes discrimination on the basis of sexuality from laws that go directly to the entitlements of citizens, particularly to their wishes as to the disposition of those entitlements after death. The passing of this bill is critical. If the acts I have mentioned are not amended and a scheme member dies, the present situation is that his or her same-sex partner will not be entitled to receive a reversionary death benefit. Once the acts are amended, there will be equal treatment of same-sex couples and their children in this area.

Many of the same-sex couples and their families who encounter systemic discrimination every day of their working lives come under one of the superannuation schemes I have mentioned. The entitlements taken for granted by opposite-sex couples, whether married or de facto, and their families have until now been unavailable to some of their neighbours, family members, friends or work colleagues who might be sitting at the next workstation to them, living down the street from them or shoulder-to-shoulder with them in an Australian Defence Force operation. This is patently unfair and out of step with the thinking of a modern Australian community.

In its 2007 report entitled Same-sex: same entitlements, the Australian Human Rights Commission identified many anomalies with regard to financial and work related entitlements and benefits. I quote, with permission, brief excerpts from the personal stories of two of those who made submissions to the Human Rights Commission:

We are 60 and 58 years of age. We are both members of the Australian Public Service and contributors to the Public Sector Superannuation Scheme …

                        …                   …                   …

We hold all our debts and assets in common—house, mortgage, car, bank accounts, furniture, insurance etc. We are the principal beneficiaries of each others’ wills …

                        …                   …                   …

We wish to provide security for each other. However, we are unable to do this through superannuation death benefits …

                        …                   …                   …

We find this an extraordinary discrimination by the Australian Government against its own employees. Are we any less committed to each other than members of a de facto opposite sex couple, or people who work in the private sector?

Again, another submission states:

I am a serving member of the Australian Defence Force, and whilst there have been significant changes in entitlements following the decision to recognise interdependent relationships in the military in December 2005, I am still concerned regarding the lack of change to superannuation and Department of Veterans Affairs benefits should something happen to me on an overseas deployment …

                        …                   …                   …

… should I die in service, then my partner will be financially disadvantaged compared to if we were in a recognised heterosexual relationship …

                        …                   …                   …

We’re not asking for new and unusual benefits, just to be treated in equality with those in heterosexual relationships.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 will remedy the inequality that informs these personal statements and allow access to benefits and entitlements previously denied. The bill does this by way of revision of definitions, including the definition of a child, and by the addition of new concepts such as ‘couple relationship’, where required, so as to include same-sex partners.

Further, a relationship registered under prescribed state laws will be sufficient to prove the existence of a same-sex relationship when considering questions of eligibility for a death or pension benefit. As well, the bill will allow changes to the superannuation industry’s regulatory framework so that funds other than the Commonwealth defined-benefit schemes may make allowance for same-sex couples and their children.

Indeed, I join with many others in this place, in the other place and in the community in saying that I regard the reforms set out in this bill as well overdue. The measures contained in the bill are not about special treatment or special rights for same-sex couples and their families. They are about equal treatment for all Australians. They are about equal access to the rights and entitlements which we enjoy and equal adherence to the responsibilities that accompany those rights and entitlements.

The amendments as a whole are expected to be in operation by mid-2009. But every day’s delay in passing this legislation is an extra day of discrimination against same-sex couples—an extra day of discrimination that could have far-reaching, adverse consequences for many men, women and children. It is for this reason, and in the context of the focus on fairness and equity that is the hallmark of a Labor government, that I urge the speedy consideration and passage of these measures, and I wholly commend their terms.

The amendments in this bill will have a positive impact on same-sex families. It will afford them the same superannuation tax treatment as opposite-sex de facto couples. It is with pride that I stand here tonight as a member of a government that has taken the measures contained within this bill, and I commend them to the Senate.

Kate Lundy (ACT, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to have this opportunity to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 this evening. There is no doubt that it is long overdue. It will remove inequities which have existed for a considerable time. That Labor took on the difficult task of removing these inequities within six months after coming into government provides me with a great sense of satisfaction and confirms our great party’s ongoing quest for social justice.

First, I need to make clear that this bill only covers Commonwealth defined-benefit superannuation schemes, which are the Commonwealth Superannuation Scheme and the scheme under the Superannuation Act 1922. Simply put, this bill will remove discrimination against same-sex couples and the children of same-sex relationships in acts that provide for reversionary superannuation benefits upon the death of a scheme member and in related taxation treatment of superannuation benefits. As I am sure my colleagues know, these acts were identified in the Human Rights and Equal Opportunity Commission report Same-sex: same entitlements, which found that same-sex couples experience discrimination in a wide range of Commonwealth laws including superannuation, taxation and social security. This bill will allow same-sex couples and their children to receive the benefits and entitlements that they have been prevented from accessing for far too long.

On Labor coming into government, Labor’s Attorney-General commissioned a whole-of-government audit of Commonwealth legislation, which confirmed the Human Rights and Equal Opportunity Commission findings. The audit also identified further discrimination in the legal treatment of same-sex couples, and their children, occurring in a range of non-financial areas, such as administrative and evidence laws, and the government will be examining these matters as well. This bill marks one of a number of stages of the government’s commitment to addressing this inequitable treatment of same-sex relationships in other legislation, some of which have been debated this evening.

There has been a considerable amount of ill-informed comment both inside and outside this place about what the legislation seeks to achieve. Some of the more radical opponents of this legislation have expressed views that this is the beginning of a so-called slippery slope which will lead to hellfire and damnation. Fortunately, the great majority of those who have previously opposed the provisions that are now in this bill have a much more reasoned attitude once they hear the facts of the matter, and I hope they would now support what the government is trying to achieve.

Let us be clear about this: removing sexual discrimination does not undermine marriage; it simply removes discrimination. The question of recognition of same-sex marriage is a separate issue from that of providing equal recognition for same-sex couples. What this bill does do is make sure that same-sex couples are recognised as the same as for all practical purposes and have the same entitlements as opposite-sex de facto couples.

There was a concern that having a differing category of relationships would increase the risk that courts’ interpretations might have varied and could even have included one of a same-sex couple being denied access to benefits. As a result, the bill ensures equality by replacing the term ‘marital relationship’ with the term ‘couple relationship’. This is similar to the approach recommended by the Human Rights and Equal Opportunity Commission. The bill also replaces the phrase ‘husband or wife’ with the term ‘partner’. The definition of ‘partner’ is non-discriminatory and applies to persons, whether the persons are in a same-sex or opposite-sex relationship. This will place all persons who have an opposite-sex or same-sex relationship with a scheme member on an equal footing. Let me state again: removing discrimination in no way diminishes the status of a marriage in the assessment of superannuation benefits. A ‘couple relationship’, which includes both of these types of relationship, recognises equally the children produced. Following on from this, the new definition will prevent the problem of the denial of benefits coming from a surrogacy arrangement, as can presently occur.

It was also found that Australia was in breach of its international obligations. Some 58 of our present federal laws have been found to discriminate against same-sex couples in the area of financial and work related entitlements, in breach of the International Covenant on Civil and Political Rights. Many of those same laws also discriminate against the children of same-sex couples and fail to protect their best interests in financial and work related entitlements, in breach of both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. This bill will mean that Australia is no longer in breach of its international obligations.

This bill reinforces this government’s basic belief that all Australians are equal before the law. There should be no diminution of any of our citizens’ rights or of their expectations to live with dignity and to be treated with due respect. Australians should not bury their heads in the sand and should appreciate that this bill actually causes us to recognise real family situations for a considerable number of Australians. Finally, this bill will ensure that the fundamental benefit of superannuation, which is to provide financial security for working people and their families into the future, is available to all Australians. I think it is an outstanding step on the road to ending discrimination in Australia, and I commend it to the Senate.

Simon Birmingham (SA, Liberal Party) Share this | Link to this | Hansard source

It is my pleasure to rise to contribute on this very important bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, one of a number of important bills before the Senate at present. That is because this bill and the series of them relate to matters of principle and doing what is right. Many times in this place we spend a lot of time debating politics. Politics is the nature of this place and the other place. This is one of those opportunities where many speakers will cast politics aside for the debate, and that is something to be welcomed. In casting politics aside, they will attempt to speak about what they truly believe in. I reflect on and respect the range of opinions that I am sure have been and will continue to be reflected on this issue. For most of us, it is about doing very much what is right on this issue of discrimination and equal treatment before the eyes of the law.

With that, I am very pleased to add my voice of support to this bill and the other pieces of legislation that have been and are to be debated. Those three bills are the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill, which was just considered in the second reading stage by this place; this bill, of course, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill; and the third major piece of legislation, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill. Each of them takes a very important step towards providing equality of access to the law, to financial arrangements and to the basic services and opportunities that Australians expect to enjoy to a group of Australians who, until now, have not enjoyed access to those equal rights under the law.

Each of them takes a step forward. The bill just considered in debate by the Senate deals with, of course, access to the courts and matters relating to consideration of de facto relationships in the family law courts. This bill relates specifically to Commonwealth defined-benefit superannuation schemes, whilst the final piece of legislation to be considered by this place on another day is a comprehensive piece reforming some 68 Commonwealth acts across a range of areas. It is important that we do this, because society has evolved and come to recognise quite clearly that the discrimination that has existed in our laws is wrong. It is a wrong that needs to be righted and it deserves to be corrected. It is very important and pleasing to see this place act in that way. As a Liberal, it is pleasing to see such an action and step being taken.

As someone who holds liberal beliefs very true and dear to my heart and believes in the innate worth of liberal philosophy at the heart of our Liberal Party, I recognise and respect entirely that there are various philosophical strains that make up our party. There are those who hold far more conservative thoughts and beliefs than I do and some who probably hold far more liberal beliefs than I do, but I recognise that Sir Robert Menzies, our party founder, in 1944 said about the Liberal Party that he was forming:

We would like to have a country …

               …            …            …

in which there is freedom of thought and free speech and free association for all except the enemies of freedom;

and

in which citizens are free to choose their own way of living and of life …

It is those freedoms that are inherent in this bill before us tonight and in the other bills related to it. They are inherent because it is not just freedom that is good enough; it needs to be both freedom and equality before the law in how these matters are considered.

Many Liberals over the years have fought for equality for same-sex couples. This is not the first time that Liberals have stood and advanced this argument. Senator Brandis, in his earlier contribution, paid tribute to many, including of course our current leader, Malcolm Turnbull. In turn, I would like to pay tribute to Senator Brandis, who I know regards this very much as an article of faith as a Liberal—an article of faith that we should not be advancing or continuing forms of discrimination in our society.

In South Australia we have a proud history, as the Liberal Party, of working to address and overcome discrimination against same-sex couples. In 1972, Murray Hill, then a Liberal member of the Legislative Council in South Australia and of course the father of former Senator Robert Hill, introduced a bill to decriminalise homosexuality. He enjoyed support in that measure from other prominent Liberals of the time: Martin Cameron, Robin Millhouse, and former Liberal Premier and leader Steele Hall. They saw the wrongs of discrimination and they were willing to champion the cause of righting those wrongs. Through history we have enjoyed Liberals standing up for the rights of others, and this is an occasion where we are very pleased as a party to join in lending our support to this legislation.

Times of course evolve and the relationship status of de facto partners, whether they are in a same-sex relationship or in an opposite-sex relationship, has evolved over the years. That is not to take anything away from the sanctity of marriage and the very integral role that marriage has played, does play and will, I have no doubt, continue to play in our society. Each time some measure that provides legal recognition to something outside of marriage has been advanced or discussed, there have been those who have argued that it will undermine the sanctity of marriage. The proof, of course, has been in what has occurred. Marriage is still very central to Australia despite the recognition that was given to de facto relationships many years ago.

In looking at the evolution of times and talking about de facto relationships during debates, in 1976, in the UK, Lord Justice Bridge spoke of the complete revolution between 1950 and 1975 in society’s attitude to unmarried partnerships. He reflected:

Such unions are far commoner than they used to be. The social stigma that once attached to them has almost, if not entirely, disappeared ... The ordinary man in 1975 would, in my opinion, certainly say that the parties to such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family ...

Of course he, at the time, in the seventies, was reflecting on those in an opposite-sex de facto relationship, but in many ways the same words could be applied—the same phraseology could be applied—here in 2008 when talking about same-sex relationships and those in same-sex de facto relationships, because indeed the ‘ordinary man’, as Lord Justice Bridge put it, would now accept that, provided there is an apparent level of permanence and stability, they are members of a family and are worthy of equal treatment under the law.

That is what is being reflected in the Senate committee inquiries that have taken place into these pieces of legislation. The overwhelming body of evidence has been to acknowledge that people are worthy of this equal treatment. The response in the electorate has been one of acceptance that these measures should pass—one of recognising that they should be passed, and passed without great fuss. It is noteworthy in a sense that tonight, as we debate this, the galleries are empty. The emails have not been flooding in. There is not great public angst or opposition to these measures; there is an acceptance that they are a logical next step in the progression of Australian society. They reflect measures and steps that have been taken around the world, and it is now a case of Australia taking that next step to move forward.

So it is that, in lending my support to these measures, I wish to pay tribute to those who have fought so hard against discrimination over the years and finish my remarks in acknowledging that, whether it be against racial discrimination, religious discrimination, sexual discrimination or gender discrimination, many have fought a good fight to overcome discriminatory laws and measures and intolerances in society. It is pleasing to see that those who have fought that fight are winning. The passage of this legislation will see the fight go on, I am sure, and will see further wins for those who believe in a society where all are free to lead their lives as they wish and all are treated equally before the law in doing so. I commend the bill to the Senate.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

It is with great pleasure that I rise to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. Superannuation is a fundamental benefit that, if we are lucky enough to have a working life where we can put some savings away, we can all enjoy a benefit which provides working people with security for their future and the future of those dependent upon them. It is a benefit in line with the principle of mutual obligation—the principle that those who work hard and save for their own retirement, thereby saving the state money, deserve the protection and assistance of the state to do this. That is what super does—it assists people to save for their retirement and it helps protect their retirement savings. This means that, when we talk about super, we are talking about people’s own money. This is not a benefit that the state provides to people without them making any contribution of their own, which makes it particularly important that all Australian taxpayers are treated equally in relation to their superannuation, have the same choices open to them and are entitled to the same benefits in equivalent circumstances.

However, until now, not all Australians have been treated equally by the Commonwealth or the state in this regard. Not all taxpayers have been offered the same protection and assistance. Some have been discriminated against, including me, and not for any rational reason. It was not because they were not as hardworking, because they paid less tax or because their need for protection was less—no. They were discriminated against for an absolutely arbitrary reason. They were discriminated against purely and simply because of prejudice about their sexuality. Unlike straight Australians, these taxpayers could not rest secure in the knowledge that reversionary death benefits would be paid by their superannuation fund to their partner and to any children of their relationship with their partner. Rather, in stark contrast, these benefits cannot be paid to same-sex partners and the children of same-sex couples in the same way that other people enjoy under current law. This discrimination has been allowed to continue despite the fact that every superannuation company and industry group in the country has for a very long time supported ending discrimination against same-sex couples in superannuation contributions, death benefits and reversionary pensions. It has been allowed to continue despite the fact that most Australians have long supported ending discrimination against same-sex couples in relation to superannuation.

Senator Birmingham’s previous remarks reflected on the change in social attitudes over many years in relation to acceptance of same-sex couples enjoying the same entitlements as other Australians. However, this is something that has long been accepted by the Australian public and indeed it has been the Australian parliament that has not, as yet—it will not until we have passed this legislation—caught up on Australian attitudes on this matter. So, despite the best efforts of the gay and lesbian community to bring this matter to the federal government’s attention over the past decade and more—in fact, the superannuation industry, trade unions and gay and lesbian rights organisations have been joining forces to campaign for law reform in this area for over a decade—and despite the best efforts of some Labor and minor party senators and members of another place to bring it to an end under the last coalition government, discrimination has been allowed to continue.

On 17 June 2004, Mr Anthony Albanese moved an amendment to a Howard government bill in another place in an effort to achieve equal entitlements for same-sex couples in relation to superannuation. On that occasion, Mr Albanese pointed out that this was the 23rd time that he had tried to achieve that objective through this parliament. He also pointed out that the Labor Party had had a bill before parliament to provide for equal super rights since 1998, a bill supported by the superannuation industry, gay and lesbian rights organisations and trade unions. I would like to put on record my appreciation of Mr Albanese’s exceptionally persistent efforts in relation to this matter and my appreciation of the efforts made by a number of Labor and crossbench senators to have this addressed in this chamber and through Senate committees, both by supporting Mr Albanese’s bill and through their own initiatives.

Let me repeat: we cannot blame the superannuation industry for this one and we cannot blame community attitudes. Nor can we argue that the issue was simply overlooked. No, this situation is the direct result of the arbitrary and ignorant prejudices of some past and present members of this chamber and of another place. But I am pleased to see that we now have the opportunity to move on from this time. The previous federal government had a willingness to let itself be held hostage to those prejudices time and time again. As just one example, I wish to remind the Senate of the Howard government’s response to a question asked by former Senator Allison back in 2000 in relation to this matter. The question and answer are worth quoting in full as they illustrate perfectly the Howard government’s ludicrous and fundamentally dishonest approach to these issues over 11 long years in government. I now quote them:

Senator Allison ... asked the Minister representing the Prime Minister, upon notice, on 13 February 2002:

(1) Was the Prime Minister accurately reported in the Sydney Morning Herald of 24 August 2001 as saying, `...I don’t think people should be in any way discriminated against or penalised against if they are homosexual.’

(2) Does the Government intend to remove discrimination against homosexual couples with regard to superannuation entitlements for surviving partners of members of the Commonwealth Superannuation Scheme; if so, when.

You will have to excuse me if the following is nonsensical, but it is indeed a quote. Former Senator Hill responded:

... The Prime Minister has provided the following answer to the honourable senator’s question:

(1) The report in the Sydney Morning Herald dated 24 August 2001 is based on an interview on radio station Triple J. The full question and answer are set out below.

“STUDENT: ... if we had a scale with total acceptance of homosexuality on one end and total rejection and abuse of homosexuality on the other, where would you place yourself?

That is the question to the former Prime Minister. And here is his response—and this was provided in an answer to a parliamentary question. He said:

... Oh I’d place myself somewhere in the middle. I certainly don’t think you should give the same status to homosexual liaisons as you give to marriage, I don’t. I mean that will make me unpopular with some people but I accept that. That’s my view. I think the continuity of our society depends on there being a margin for marriage if I can put it like that. But consistent with that view 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. But I don’t think we should go the whole hog in the other direction and take the view that you give relationships between ... I mean I don’t believe in gay marriage for example, I don’t think our society should signal support for that.”

The answer then goes on to say in very obscure terms:

... The Commonwealth Superannuation Scheme ... provides benefits for scheme members and their eligible spouses and children. The CSS is a regulated superannuation scheme for the purposes of the Superannuation Industry (Supervision) Act 1993 (SIS Act) which regulates the superannuation industry. Under the SIS Act benefits can be paid to a dependant, which includes the spouse or any child of the person. A spouse under both the SIS Act and the rules of the CSS does not include a same sex partner. However, where a member of the CSS has neither a spouse nor an eligible child there may be a minimum lump sum benefit payable to the member’s legal personal representative or, if none exists, any individual or individuals determined by the CSS Board. That could include a same sex partner.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I’m totally confused.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senators, what gobbledegook was that that former Senator Hill was indeed required to deliver on behalf of the then Prime Minister. What absolutely complete and utter gobbledegook! Senator Parry, you did say you were totally confused—as was I in reading the then Prime Minister’s response.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Madam Acting Deputy President, I rise on a point of order. I am confused because Senator Pratt started talking about former Senator Hill quoting the then Prime Minister and then she went on to the then Prime Minister himself. I am confused about the answer and about how Senator Pratt is portraying the then Prime Minister.

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Parry, there is no point of order.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

Madam Acting Deputy President, with your indulgence I am happy to reassure the senator opposite that I was simply quoting from Hansard and repeating what former Senator Hill was directed to answer on behalf of the former Prime Minister, which was a quote from Triple J saying that the former Prime Minister does not really condone, but does  not want to discriminate against, gay relationships—an answer that effectively said, ‘But we will continue to discriminate against same-sex couples and their superannuation’, all expressed in fairly gobbledegook terms. Senators, I ask you: did former Senator Allison ask former Senator Hill about gay marriage? Or did she ask whether the former Prime Minister’s professed aversion to discrimination extended to a commitment to legislate for equal super rights some time soon? Well, you do not need to be a genius to answer that question and you do not need to be a genius to work out what that rant about gay marriage was really about in this context. It was about, as has happened many times in this place, distracting attention from the fact that, despite his protestations against discrimination, the former Prime Minister had absolutely no intention of ever ending discrimination in the fundamental matter of superannuation entitlements.

The fact that the Howard government never had any intention of ending the discrimination against same-sex couples in superannuation law was even more clearly demonstrated the following year. In 2001, the government voted down its own superannuation choice legislation after it was successfully amended in the Senate to allow gay and lesbian couples the right to leave their superannuation contributions and entitlements to their partner. On that occasion, former Senator Greig had this to say:

... the Federal Coalition is hopelessly out of touch with community attitudes and the majority of States and Territories, most of which have already ended this discrimination at a local level.

“The Superannuation industry is understandably seething over the Howard Government’s inflexibility and are shaking their heads at last night’s decision.

“It is ridiculous to promote a Bill about Superannuation choice, if that Bill denies some people the choice to unambiguously nominate their partners as beneficiaries.

“Without exception, every Superannuation company and Industry Group supports ending discrimination against same-sex couples in superannuation contributions, death benefits and reversionary pensions,” ...

Former Senator Greig also pointed out that this was the first time in federal parliamentary history that antigay prejudice had led a government to sabotage one of its own bills. What an extraordinary step for a government to take! It just shows the great lengths the previous government was prepared to go to to avoid ending discrimination against same-sex couples in Commonwealth superannuation laws. It just shows the extent to which the government was held captive by the bigoted attitudes within its own caucus on this issue.

Well, senators opposite now have a crystal clear, cut and dried opportunity to finally do the right thing on this issue, and it is wonderful to see the bipartisan support for these measures. But they have been far too long in coming. Many people have died, without their partners receiving the full benefit of their superannuation.

It is well past the time for this arbitrary and unfair discrimination to be brought to an end—not indirectly and incompletely and not by trying to shove same-sex couples under the carpet by lumping them in with some catch-all interdependent category, but by openly, directly and completely giving same-sex de facto couples exactly the same rights under our superannuation laws as the rights of heterosexual de facto couples. Why shouldn’t we? This bill does just that—nothing more, nothing less. People in same-sex relationships today see themselves as the same as any heterosexual couple, with the same kinds of family, social and community commitments and with the same kinds of loving, mutual obligations to each other. We have spent so much time fruitlessly debating equal super rights for same-sex couples in this place and, because we have been banked up against this issue, we have not had the time or the opportunity to address the many other forms of discrimination affecting same-sex couples and their children. That is why it has been left to Labor to catch up on everything, to bring us up to date and to give same-sex couples the same substantive rights that other couples enjoy. I trust that, on that basis, this bill will be passed so that we can finally move on to deal with all of those issues of discrimination against same-sex couples regarding financial entitlements, many of which were addressed by the recent groundbreaking report of the Australian Human Rights Commission.

As senators are aware, the government has before the Senate a further bill which addresses these more wide-ranging issues through a large number of much needed reforms to legislation affecting taxation, social security and other critical financial entitlements.

This government’s readiness to take the initiative on these matters, to be bold, to be thorough and to be fair stands in sharp contrast to the prevarication, deception and half--heartedness that characterised the record of those opposite on these matters. I commend the government on moving so swiftly to address all of these matters upon coming to office. It means a great deal to me personally, and I wholeheartedly commend this bill to the Senate

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary for Disabilities, Carers and the Voluntary Sector) Share this | Link to this | Hansard source

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and omnibus bill to follow are built upon premises that I do not accept—premises that take their lead from the development of an Orwellian newspeak and give rise to a most pernicious form of social engineering.

Perhaps not even five years ago, the bill that stands before us would have been considered by most in this place as anathema to our society and to the time-honoured principles of support for marriage and the family. Now, I dare say, I am probably seen by many as speaking some form of heresy in this place when I say that this bill does not deserve the time we are about to devote to it. I guess my comments are what George Orwell termed ‘crimethink’. Another, more modern term for my misgivings, and one that I am sure will be levelled at some point, is ‘homophobe.’  Where is the freedom of thought? Where is the freedom of expression? It seems that those of us who oppose the degradation of marriage and the family, which such legislation represents, are reduced to quiet whispers of dissent, lest we be outed, lest we be branded as intolerant, uncaring or heartless. However, I do not accept that we in this place should blindly accept new definitions for ancient institutions, nor should we blithely succumb to the radical reordering of human rights that seeks to hijack principles such as fairness, reasonableness and compassion, making them slaves to errant notions of discrimination and equality.

George Orwell’s 1984 may well have been a tract against totalitarianism and socialism, but it was also a window upon the age that we live in. The clever marketing strategies of the same-sex lobby that have brought us to this juncture have beaten virtually every reasonable objection out of the public debate, not by reason, not by recourse to truth and justice, but through engendering subtle and not so subtle changes to language and perception over a long and sustained period that would have made Syme from the Ministry of Truth burst with pride.

This government has bought the myths and is determined to foist this ungood on every Australian citizen. I say ‘ungood’ deliberately. In Orwell’s own words, the etymology of newspeak was developed:

… not only to provide a medium of expression for the world-view and mental habits proper to the devotees of IngSoc—

that is, English socialism—

but to make all other modes of thought impossible.

It is almost impossible in this day and age to think of the term ‘discrimination’ as anything other than negative and the adverb ‘discriminating’ as anything other than a pejorative.

The report of the Human Rights and Equal Opportunity Commission, upon which this bill and others are based, claims that there exists a right to non-discrimination’. What does ‘a right to non-discrimination’ mean? Perhaps if I said ‘a right to be treated fairly’ we might all nod sage-like. But to be treated fairly implies some external standard by which we judge fair and unfair behaviour. What then is the case for fair treatment of same-sex couples? Is it fair that same-sex couples be treated the same as married couples? I say no. This place said no. We in this place made that clear in 2004, although I get the impression that those opposite supported the Marriage Amendment Bill begrudgingly at that time. I say that, because the debates we are now engaged in are about creating precisely such a regimen. They can tell us that these bills are not about marriage, but that is either a delusion or sheer sophistry. As one submission to the various inquiries put it:

We wonder … whether or not the current debate would have been fought out in the context of amendments to the federal Marriage Act had not that decisive moment occurred in 2004.

I agree. The report of the Human Rights and Equal Opportunity Commission did get something right, though. It pointed out where, in federal law, some same-sex couples are treated differently from married couples. By and large, I believe that most of these differences are entirely justified because same-sex couples are intrinsically different relationships from marital relationships. I say ‘by and large’ because I concede that there may be some instances where a case can be made for change in equitable terms. But this is where the devil lies in the detail. The HREOC simply said, ‘Ah! We’ve found some discrimination, and discrimination is ipso facto wrong; ergo we need to fix that.’

I put it to my colleagues that this is hardly the case for change. What are the arguments arising from these eureka moments of discovering discrimination that would employ the dictates of reason to decide that such change as proposed in this bill and other bills is warranted? There are none. The case has not been made. I say: make the case so we can debate the reasoning, but do not treat the members of this place, elected by the good people of this great nation, as mindless minions. I hope I am not the only one in this place that finds this approach offensive—and offensive is what this bill is. It is offensive in the breathtaking ignorance of social mores and conventions. It is offensive in that it seeks to make the treatment in Commonwealth law of same-sex couples as virtually identical to that of married couples. Again, as one submission put it, if all that is left to differentiate between same-sex couples and married couples is a ‘piece of paper and a ceremony’ then there will remain little defence, at some future point in time, to a claim for full inclusion in terms of the Marriage Act. A equals B, B equals C; therefore, A equals C. The use of algebra by Family Voice Australia in one of their submissions makes the reality all too obvious. We recognised de facto married relationships three decades ago in a limited way. Over time, both in terms of the law and in the perception of the public, de facto married couple relationships have become de facto marriages—or, in fact, marriage, as the Latin term connotes. This and other bills will afford same-sex couples equal standing with de facto married relationships and, therefore, practical parity with marriage itself.

Groucho Marx once said, ‘I don’t care to belong to a club that accepts people like me as members.’ The great institution of marriage, which is the foundation of society and the only social institution where children can be properly nurtured, has taken a beating in the past three decades or so. We have expanded the membership of the marriage club to include heterosexual couples who do not, for whatever reason, actually want to get married. Now we want to throw open the doors and welcome into the fold those whose relationships are uncharacteristic of the most basic elements of a marital union. It is not difficult to understand that if a club or association defines its reason for existence away then it will, sooner or later, cease to exist. We do not expect the RSL to broaden their membership to include bohemian peaceniks, we do not ask the Country Women’s Associations to include men and we do not ask the NRL or the AFL to include women in their teams. Why is it then that we defy the same sort of logic when it comes to marriage? I suspect that, as much of the same-sex literature suggests, the ultimate goal of the same-sex lobby is indeed to destroy marriage by defining it out of existence. And we in this place are being asked to contribute to the demise.

If we required any further proof that the recognition of same-sex relationships in the manner outlined is against common sense we need only look at the fact that—to jump through unnatural hoops—the bill defines children as a ‘product of a relationship’. A product of a relationship! How coarse. How degrading: ‘Here, Joe; I’d like you to meet my products: product A and product B. We want to have at least four products in our family.’ Maybe we should extend this newspeak further: maybe a family should no longer be a family but should be referred to as ‘a corporation’. In Spain, parents are no longer Mum and Dad but ‘Progenitor A’ and ‘Progenitor B’, so maybe there is some logic to that. Unfortunately such changes would probably fall foul of HREOC, I expect, because of alphanumeric discrimination! Of course, if a child is a product, then the mother is little more than an incubator—a factory, or production line, if you will. How sad. And one can only imagine how we should be redefining the father. This is where the real test of this type of legislation lies. If we need to redefine the meaning of institutions, relationships and persons so as to make this regimen work, then it is a sure sign that this is wrong. It is a sure sign that it is unnatural. As Aristotle said: ‘It ever remains unjust to treat unequal things equally.’ And that is precisely what we are doing here.

I do not know whether this bill, or the omnibus bill, can be rescued. It is a bad bill with bad consequences, a fact reflected by the government’s own tabling of 18 pages of amendments to their own bill. I am also aware that a number of contributors to the inquiry regarding this bill and the omnibus bill have mentioned the idea of interdependency as an alternative vehicle to deal with superannuation, and we should consider that. I think that, in terms of superannuation, interdependency passes the fairness test. I am not so sure about other matters, and I am certainly opposed to referring to children as ‘products of a relationship’. In fact, I find it quite disappointing that children are being used as an excuse, and a vehicle, to highlight the importance of this bill. In closing, I urge this Senate and its members to raise the bar of reason in respect to this bill. I urge all members to ask themselves whether HREOC and the government have applied reason and presented sound argument for these changes and whether or not the manner in which these changes is to be achieved is fair and reasonable. We are considering major changes to marriage and the family here, and we need to treat this matter with extreme care. I want it noted on the record that I stand firmly with marriage and with the natural family.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There has been no inquiry into surrogacy by a Senate committee. It would be inappropriate for the Senate to adopt the amendment that has been put forward by the government in the absence of any such inquiry. In fact, the Standing Committee of Attorneys-General is currently considering uniform national laws on surrogacy, but the initial consultation paper for this process has not yet been issued. A question about this was asked in the committee, and I thank the Attorney-General’s Department for responding swiftly and in accordance with the facts at hand.

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

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

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

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

Hear, hear!

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

Thank you, Senator Cormann; it is very important. Marriage provides the umbrella under which children grow, are nurtured, are cared for, are loved—it provides the umbrella under which children can prosper and learn and be all that they can be as Australian citizens. We want to support that institution in this place. Sadly, it concerns me immensely that the way this bill is drafted undermines the institution of marriage. I hope with all my heart that the government’s amendments that have been tabled today, the 18 pages of amendments to its own bill, will clarify and address the issues that were raised in the Liberal senators’ additional comments to the committee report that has been tabled this afternoon. I hope with all my heart that this legislation will not attack or undermine the institution of marriage, that it will not put the best interests of the child second, third or fourth but first and make them paramount. And I hope that, in achieving the objectives of removing discrimination against same-sex couple, those institutions, those things that we hold dear, that we know are important, will be safeguarded and protected.

I note, as I noted earlier in terms of the institution of marriage, that it is proven, that the evidence shows, that children with parents in a marriage relationship end up being healthier, wealthier and better educated, and have better outcomes in terms of job prospects and so on, compared with other relationships. That is good; that should be acknowledged. I thank the Australian Institute of Family Studies for providing that evidence to our committee in the different forums that we had.

In conclusion, I thank my colleagues Liberal Senators Trood and Fisher, and I thank the committee for the work it did in a short amount of time under considerable pressure. I think we have delivered a report which will be considered and reviewed. In the context of this debate we will now have to carefully review the 18 pages of amendments before the Senate, in its wisdom, will decide on this matter.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 is a difficult one to sort through, given it involves a number of complex issues about fairness and the importance of marriage as the basic building block of our community. Family First believes that people in interdependent relationships, such as same-sex couples or couples who are not in a sexual relationship but who are financially dependent on each other, should have shared access to their superannuation. But Family First comes at this from a different angle to the government, regarding these relationships as essentially ‘interdependent relationships’ rather than ‘marriage-like relationships’. Family First has a concern about the approach of the draft laws, which undermine marriage by placing a number of relationships including marriage into a catch-all category of ‘couple relationship’, as though all these relationships were of equal value. The danger of course is that marriage becomes just another relationship option and loses its special status.

By coming up with the new term ‘couple relationship’ the bill lumps marriage and other relationships all into the same category—the bill treats all these relationships as the same. The bill does not mention marriage, or husband or wife. These words have been deleted. If this is the model on which the government will base other legislation, these important words will start to disappear from all federal laws. The term ‘couple relationship’ should instead be replaced by reference to ‘marriage and interdependent relationships’ so that we do not do away with references to marriage. Family First believes that the important and overriding principle that should guide us when looking at this legislation is that marriage should keep its privileged status and should not be undermined.

Legislation should also be child focused, not adult focused. It is in the best interests of children to have both a mother and father when possible. So it is important to promote marriage, not reduce it status, because that is where children get both a mum and a dad. Without question, marriage is the best environment in which to raise children.

I am a great believer in marriage and the value of working on your relationship to stay married. I share the community’s great concern over the rate of marriage and relationship breakdown. We know from evidence to the committee, from the Australian Institute of Family Studies for instance, that marriages last much longer than de facto relationships. Different measures were pointed to, but one overriding fact was that de facto relationships are three times more likely to end within five years than marriages are. It is the greater stability of marriage that is one of the important things about marriage that provides that reassurance and confidence to children.

These are among the reasons marriage is so important to the community and why marriage should continue to be promoted and placed above other relationships. This bill should be about giving people in interdependent relationships the ability to share their super. But by focusing on same-sex relationships, and not on the broader category of interdependent relationships, the concern is that there is not a broad, equal treatment of all relationships separate to marriage. Interdependent relationships could include same- and opposite-sex couples in sexual relationships, but it could also include a couple of mates or two sisters who live together and share pay, housework, rent and other bills and so on, who are genuinely financially interdependent. I note the argument that not many interdependent people have claimed superannuation under the existing provisions. But, as more and more people reach retirement age after spending their working lives contributing to superannuation, that will change.

There is also a strange definition of ‘child’ in the bill, which says that ‘a child is the product of the person’s relationship’ with their partner. But children can only be created, without technical intervention, by a man and a woman. I agree with the comment by Professor Patrick Parkinson, who recommended to the Senate committee that examined this bill that a better test would be whether the child is dependent upon the person entitled to the pension, not whether they are the product of a relationship.

Family First does not believe this bill is the best way to ensure people in interdependent relationships can share their super, because it takes the approach of making all couple relationships equal. Family First does not believe they should be equal, as legislation should be child focused and marriage should be advantaged above the other relationships to help provide the best environment in which to bring up children.

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

Mr Acting Deputy President Barnett, can I at the outset associate myself with the comments that you made earlier in your speech, having had the benefit of being on the Senate Standing Committee on Legal and Constitutional Affairs and hearing witnesses. I have in particular noted the comments of the Liberal senators in the report that was tabled earlier.

I would like to focus this evening on two matters and comment on the package of bills which includes the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. I would like to make the general observation that what we really should be focusing on is the removal of discriminatory treatment in federal laws as it applies to all interdependent relationships. Senator Fielding mentioned earlier some of those relationships. I would like to go back and look at where this has effectively been done in recent years and really focus on what I think has been the change of attitude of this government in terms of its treatment of interdependent relationships.

The previous government took the attitude of looking at interdependent relationships and discrimination across different areas—in other words, see where that discrimination exists and deal with it as it applies to interdependent relationships of the type that Senator Fielding has just described. What this government seems to be doing instead is actually taking a discriminatory approach by choosing a particular relationship and then trying to do blanket changes across a wide range of areas.

I think in the end what is happening here is that quite a number of people who are in interdependent relationships are being discriminated against because the recognition of their rights—and their right not to be discriminated against—is not being addressed here. I ask the question: why has the government adopted this deviation of now discriminating in favour of particular groups of people in interdependent relationships rather than looking at interdependent relationships in the global sense?

It is a complex area when we talk about interdependent relationships. I believe that it is more appropriate to deal with this on a case-by-case basis. Australia has a very good commitment in protecting human rights, and governments of different persuasions have condemned discrimination. Indeed, in our society all should have the opportunity to participate in our community and to experience the benefits that are associated with that participation. On the other hand, I think that all in society should also accept the responsibilities that flow from such participation without fear or discrimination. As I have indicated repeatedly, governments have been committed to the protection of human rights, and our approach to human rights is a reflection of our liberal, democratic ideals. It is also a reflection of the belief that justice and human dignity are basic rights that all in society should enjoy.

Our human rights in Australia have been underpinned by the interaction of important institutions within our legal framework. We are one of the oldest democracies and we have strong democratic institutions. Our common-law system has also been important in protecting human rights. In addition to current legislation at a federal level, there are antidiscrimination laws at state and territory levels which together form the body of law which protects human rights. We have a wide range of programs, services and support mechanisms designed to assist all Australians, irrespective of their interdependent relationships. We all share the commitment to ensure that programs and services are targeted to those most in need, while encouraging Australians to contribute in our community.

The previous government was committed to the elimination of discrimination against same-sex couples, but this was part of a program of the elimination of discrimination in relation to the body of interdependent relationships. This is really the concern that I have here. It is my belief that the issues that we are dealing with ought properly be treated on a case-by-case basis. Rather than doing things in this across-the-board fashion, I think it is important to look at particular areas where discrimination could exist and then apply changes to legislation across a body of laws where interdependent relationships are affected.

I would like to just to touch on areas of interdependent relationships where the previous government took significant action to address differential treatment and discrimination and did so on a case-by-case basis. For example, in the area of superannuation, superannuation laws were changed to include same-sex partners as potential beneficiaries of death benefits in some circumstances. There were changes to income tax legislation to expand the range of potential beneficiaries of tax-free superannuation death benefits to include interdependent relationships. This would include elderly siblings intending to live out their lives together, adult children living with and caring for their parents, and same-sex couples who might not otherwise be recognised as dependants. Tax-free superannuation death benefits could previously only be paid to spouses, children under 18 and those who could establish financial dependency on the deceased. Various changes were made in those areas. For example, legislation enabled same-sex couples to choose a super fund that best served their needs—that is, one with governing rules that allowed payments to same-sex partners.

Another case is that of Australian Defence Force employee entitlements. The previous government made progress in eliminating discrimination against people in interdependent relationships in the Australian Defence Force. For example, in October 2005, a decision was made to extend certain conditions-of-service entitlements to other interdependent relationships of ADF members, including same-sex partners of ADF members. A wide range of work-family balance provisions that recognised interdependent partnerships were made available to ADF members.

Provision was made in the area of immigration for a full range of interdependent relationships. For example, in the areas of temporary and permanent skilled visas people who shared an interdependent relationship with an Australian citizen or permanent resident were able to apply for interdependency visas to allow them to reside in Australia and, of course, this included same-sex relationships. Interdependency visas were created as a class of visa under the migration legislation. Another example is in the area of federal employment laws, where discrimination in employment on the grounds of sexual preference became grounds for lodging a complaint under the HREOC legislation. Also, various changes were made in the area of public servants’ superannuation and Australian superannuation schemes through benefits in the CSS and PSS. I raise these examples because that really was a different approach. We are now seeing a change of attitude by this government that in effect singles out one interdependent relationship, in my view to the discrimination of other interdependent relationships.

I now turn to some of the issues that have been raised by other senators, in particular the concerns that were raised in the additional comments by Liberal senators in the committee report in relation to some of the terminology and language used in the various bills, in particular what has been described at 1.8 of those additional comments as the ‘novel approach’ which ‘undermines the unique status of marriage in Commonwealth law’. I agree with the comments that have been made by Liberal senators that the term ‘couple relationship’ should be abandoned. We really do need to look at the terminology and the amendments in the Senate and change some of that terminology. Other senators have also talked about the terminology of a child being a ‘product of a relationship’—

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

’Bureaucratese’!

Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

In its extreme. We talk about sensitivity; well, describing a child as a ‘product’ is just very much devaluing the concept of a child and of being a child. I look at that and I think that something is terribly wrong there.

I would like to conclude my comments by putting on the public record the importance of marriage as an institution in Australia. Marriage is a unique institution in our society and it is one that we as senators and members of the Australian parliament should do everything in our power to protect, and ensure that it is supported, encouraged and backed up in every way, shape and form. The package of bills that are now before us has afforded me the opportunity to express my views on the sanctity and uniqueness of marriage and the very important role that it plays in Australia. Marriage is a very important institution not only for the traditional Anglo-Saxon culture in this country but also for so many others in our culturally diverse community. It is the important umbrella institution which helps to nurture children in an environment where they can grow and prosper. Indeed, the traditional form of marriage in my view provides the best form of security in our society. I know that some of those opposite do not share that view but I know that it is a view that is shared by so many. Often people talk about the silent majority in this country. I think that the silent majority in this country would agree about the sanctity of marriage and the sanctity of what is the traditional family. Like Senator Bernardi, I too stand for the traditional definition of marriage and for the traditional definition of the family.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which is before us tonight, seeks to provide equality of treatment in relation to superannuation benefits for the dependents of those who have made the choice to enter into a same-sex relationship. Of course, such as decision is a matter of choice. It is a choice that has been made by many thousands of Australians. Aside from their sexuality, there are no other common characteristics of people in same-sex relationships. They come from all walks of life, all social strata, all varieties of ethnicity and all age groups. They have in common perhaps only that they choose to live in a loving and supportive relationship. It is not possible, I believe, to discern in such relationships any less commitment to a successful relationship than one would find in any other domestic relationship in our community—for example, in a de facto heterosexual relationship. Whether one approves of such relationships personally is irrelevant. It is a matter of choice for those entering such relationships, and I personally respect their right in a society such as 21st century Australia to make that choice.

It is of course not within the capacity of any law to change social views about particular social phenomena—at least not directly. If this legislation should pass through the parliament, we do not in effect change the views of many Australians towards people in same-sex relationships. I think it would be beyond the power and, in fact, the desirability of legislation to do that. Equally, the law should not artificially place barriers in the way of or burdens on Australians who choose to enter into such relationships. This and the other legislation which make up this package are designed to ensure that those artificial barriers to people who live in that particular kind of relationship are removed.

I do not understand what social harm is addressed by keeping in place articles of petty discrimination against those who enter into a same-sex relationship. I have a longstanding commitment to supporting that right of choice, which is open to all in our free society, and I welcome the bill as a mechanism to ensure the rights of same-sex partners, and the dependants of those relationships, to access facilities such as superannuation.

I belong to a party that believes in choice. I belong to a party that believes in freedom. I revel in a diverse, pluralistic, multicultural and multifaith society, where people make all sorts of decisions. To the extent that they make those decisions, I wish them well. I ask only that they make decisions which do not harm other people. I do not see in the various disabilities that we have imposed in the law of Australia on people in same-sex relationships over many years any particular issue that touches on people outside those relationships which would warrant the preservation of those forms of discrimination.

Many individuals make a choice about these things in the face of opposition and discriminatory actions or comments from some sectors of the community. But that is no reason for the dependants of such individuals to be treated differently from the dependants of any other contributor when, for example, distributing their entitlements from a superannuation scheme. Such contributors might be judges, politicians, actors, artists, defence personnel, public servants or bus drivers. I am sure that in every one of the states and territories represented in this chamber there are people in all of those categories and many more who are in fact at this time in same-sex relationships.

As we all know, superannuation is the main source of saving towards retirement for most people and to support their family in case of early death. Currently, however, in most schemes, particularly the older Commonwealth ones, same-sex partners do not qualify as a ‘spouse’ or a ‘marital partner’ in order to receive a death benefit or retrospective superannuation pension on the death of their partner. The amendments before us aim to rectify this situation by changing the definitions of ‘spouse’ and ‘marital relationship’ to ‘partner’ and ‘couple relationship’ in some nine acts covering the superannuation of various Commonwealth employees, including, incidentally, the Governor-General Act 1974 and the Parliamentary Contributory Superannuation Act 1948. The amendments also cover further regulatory superannuation and taxation acts.

There has been some debate about the definition of ‘child’ in the various schemes, and I take the point that the definition needs to be carefully worded so as to be effective and not to cause unnecessary offence or to place people in invidious situations with respect to the wider operation of the laws of Australia. But those problems are not insurmountable, and those problems should not be a barrier to the passage of this legislation in this or a very similar form by this parliament.

It is estimated that the measures contained in the bill will cost on average $8 million per year for the next four years and increase the unfunded liability by around $112.6 million. But I emphasise that, in looking at that figure, we are providing for an entitlement which I believe these families—families based on same-sex relationships—should enjoy just as others who, in their relationships, contribute the same dollars and are entitled to enjoy the benefits of their contributions to superannuation schemes.

Mention has been made about the importance of the legislation protecting the sanctity of marriage. Let me put on record very clearly my view that marriage is an extremely important institution in our society. I see it as the bedrock of a successful society, and I hope that nothing done by this parliament at any time will undermine the effectiveness and the value of the institution of marriage in the eyes of Australians. But marriage is not strengthened or supported or made better by applying disabilities to those Australians who, for whatever reason, choose to be part of other kinds of relationships. Marriage is not strengthened by actually discriminating against people in those sorts of relationships. We should ask ourselves whether the pieces of legislation to which this bill and other bills in this package are directed actually contribute to anything as noble as the strengthening of marriage or are simply anachronisms which deserve to be removed.

Members of this chamber will be well aware that for many years Australia has been a signatory to the International Covenant on Civil and Political Rights, and that covenant states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground ...

I do not understand there to be any good reason why that provision should not be the anchor on which we move tonight or in the course of the next few weeks to effect the changes to legislation that will remove those forms of discrimination which are referred to directly in article 26 of the international covenant.

Mr Acting Deputy President Barnett, I am acutely aware of the concerns that have been raised by coalition members, you included, of the Senate Standing Committee on Legal and Constitutional Affairs, which reported a short time ago. I think it is extremely important that the issues which were given rise to in that report, particularly the report of coalition senators, be fully and properly addressed. It does concern me enormously that there are 18 pages of amendments to deal with, and I sincerely hope that the government does not expect to put 18 pages of amendments before the Senate this week and expect them to be dealt with by the Senate in a considered way. I hope that those issues can be worked through and that by moving those amendments, considering them and supporting them as appropriate we can strengthen the purpose of this legislation.

But I ask members of this place not to be distracted from the main task put forward by this bill and the other bills in this package. It is to bring out of the shadows, in a legislative sense, those people who have laboured under special difficulties by virtue of their personal and other arrangements because of their membership of a same-sex relationship. If there is good reason for preserving some form of discrimination in those circumstances, I look forward to hearing it and to understanding why that discrimination should be retained. I have not yet heard such good reasons, and I do not imagine that I will in the course of this debate.

I implore senators to consider carefully the commitments that we have all made, through our various parties, to the Australian community. I am certainly aware of the commitment made by my party now at two successive elections to remove discrimination against people in same-sex relationships. The detail might be a matter to quibble over; the thrust of what is required to do that should not be quibbled over and should be the task of the Senate in the coming days and weeks. I commend this bill—and the others in the package—to the Senate and trust that it will be viewed and considered in good faith by every senator who sits in this place.

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

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

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

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

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

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

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

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

Any child, in relation to a person, includes:

               …            …            …

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

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

The government has displayed extraordinary ineptitude in presenting the Senate with a series of ad hoc and incompatible approaches to the definitions of ‘child’ and ‘parent’ in Commonwealth law.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Debate (on motion by Senator Stephens) adjourned.