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

I table a supplementary explanatory memorandum relating to government amendments and requests for amendments to be moved to this bill. The memorandum was circulated in the chamber on 14 October 2008.

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

I move opposition amendment No. (1), to clause 2 of the bill, which has been circulated in the chamber:

(1)    Clause 2, page 2, omit the table, substitute:

The amendment which the opposition moves, and it is the only amendment that the opposition will be moving to the superannuation bill—if I may call it that for the sake of brevity—is in relation to the commencement date. Honourable senators will recall that earlier in the year the opposition indicated that it proposed to refer this bill and the related bills to the Senate Standing Committee on Legal and Constitutional Affairs for consideration. That reference took place and that consideration has since occurred.

It was said by some at the time that the opposition’s move to refer these bills to a Senate committee for scrutiny was a device or a tactic to delay the passage of the bills. Those remarks by those who made them were ignorant and should never have been made. It is apparent from what Senator Wong, who represents the Attorney-General in this place, has said in her contribution to the debate on the omnibus bill that the government not only welcomed the deliberations of the Senate Standing Committee on Legal and Constitutional Affairs but in fact decided—as is apparent from the government amendments to the superannuation bill and the omnibus bill, which we will be debating shortly—having regard to the recommendations of the Senate committee, to improve the bill in the various respects reflected in those amendments.

The reference to the Senate committee was, from the point of view of both sides of the chamber, a beneficial circumstance which will result in an improvement to the bills. So it is a good thing that it happened, and the suggestion that it was done for the purposes of delay, as I have said, had no basis in fact and was ignorant.

Nevertheless, because the superannuation bill was not passed before the end of the last financial year a concern arose as to the possible position of individuals who might have been beneficiaries of the bill had it been passed before the end of the last financial year but, because of the period of time taken up by consideration of the bills in the Senate committee, may have missed out. The particular cases pointed to were cases of people to whom the terms of the superannuation bill might apply who were in relationships and where, between 1 July 2008 and now, a partner in a same-sex relationship died. The opposition has always been concerned to ensure that there is nobody placed in that position. I am not aware, by the way, that in fact there is anybody placed in that position. I have made inquiries and, to the best of my knowledge, there is no-one, but we cannot be sure.

I remind the Senate of what the member for Wentworth, the then shadow Treasurer, now the Leader of the Opposition, said on this matter in the House of Representatives when he spoke in the second reading debate on this bill on 4 June 2008:

The key point that I wish to make now is that if the government wishes to have the benefits of this legislation available to people who would benefit from it, were it to be law today, it could choose to backdate the effective date of this legislation from whenever it chose. We know the tax laws and laws relating to superannuation are routinely—in fact, almost invariably—made effective as of the date of announcement. And it will take some months, often many months, for them to be passed into law. There is no reason why referral to a committee should defer the granting of the benefits that both sides of this House are committed to in terms of substance and in terms of the overall objective. That would ensure that those people who are concerned that they or their partner may die before this bill becomes the law of the land can have their concern set aside, and then the focus can be on the parliament getting the detail and the drafting right.

I interpolate to say that that is precisely what has happened in the ensuing months. Mr Turnbull went on to say:

This is the challenge I throw down to the government: if you are serious about delivering justice to people in same-sex relationships then you can say, as the government, that it will be effective as of budget night, the day after the election or whatever date you choose. It is entirely a matter for the government. It is the government’s liability. It is its money. The only consequence would be that there would be an additional number of people, probably a small number, who would benefit from the additional cost in the scheme of the Commonwealth budget. Having regard to the great objective of equality and equal treatment of people regardless of their sexual orientation, the additional cost is not something that I would imagine would delay or deter members on either side of this House.

The purpose of the opposition’s amendment is to ensure that the provisions of this act, when it receives royal assent, come into effect retrospectively, as from 1 July 2008—in other words, the commencement of the current financial year—and that, in the event that there are some individuals who, as a result of the reference to the Senate committee, might have been prejudiced because of the death of a partner to whom the provisions of the bill would otherwise have applied, then the position of anybody in that unfortunate circumstance can be secured. I wonder whether the minister, who represents the Attorney-General in this place, would be kind enough to explain to the chamber why it is the case, as I understand it, that the government has set its face against this amendment.

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

I thank Senator Brandis, given Senator Joyce’s previous intervention, for clarifying what the opposition’s position is on this matter. Firstly, I confirm that the government does not support the amendment. I indicate to the chamber that the government is concerned that retrospective operation of the bill and the amendments to the relevant trust deeds would give rise to significant legal complications and that the complications could only be addressed by the enactment of various and somewhat complex transitional and consequential amendments. I am advised that provision would also need to be made for the Commonwealth to provide just terms in respect of any acquisition of property affected by the retrospective application of the amendments to ensure that the bill did not involve an impermissible acquisition of property for the purposes of section 51(xxxi) of the Constitution.

Further, the government is also concerned that an earlier commencement date may have adverse consequences for members of self-managed superannuation funds. Can I indicate to Senator Brandis that the government is proposing further government amendments—which, I understand, will be moved in the House of Representatives—for reasons which I am sure he would understand, which will enable a person who, if this bill had commenced on 1 July 2008, would have been entitled to one or more payments to make an application to the finance minister for one or more replacement payments. This amendment would deal with some of the concerns that Senator Brandis and other honourable senators have raised but would not require the amendment effected by the bill to have a retrospective effect. So I would ask senators who are putting this amendment to consider the concerns that the government has raised in relation to this amendment and to recognise that some aspects of the policy logic behind their amendment are dealt with via the avenue the government is proposing to take in relation to applications being made to the finance minister.

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

Mr Temporary Chairman, through you: the reason the opposition is not satisfied with the amendments that the minister has foreshadowed will be moved in the House of Representatives, a draft of which has been circulated to us this afternoon, is that they leave people who are in the circumstances of being potential beneficiaries of this bill, arising from a death that occurred prior to now but after 1 July, entirely at the mercy of the discretion of the finance minister. It does not secure their rights. It gives them the opportunity to make an application for what would in effect be an ex gratia payment. And, in our view, if we are going to do this properly, the rights of such people should be secured rather than left to the mercy of the generosity of the government. I do not suggest that there would be any bad faith affecting the exercise of any discretion but, nevertheless, their rights are not secured. As Mr Turnbull pointed out in the speech I quoted from before, it is the most common thing in the world to make retrospective the commencement date for the operations of tax laws and superannuation laws, and we are not persuaded that that cannot be done in this case.

Senator Wong referred to section 51(xxxi) of the Commonwealth Constitution as being a potential hurdle here. I am, of course, not going to compromise the confidentiality of any discussions which we, the opposition, have been party to at the Attorney-General’s office, but can I say that I understand the concern. I have considered the matter, but I think the concern is not soundly based. The concern seems to arise in particular from the possible application to this case of some dicta by the former Chief Justice Murray Gleeson in the High Court’s decision in Theophanous v Commonwealth of Australia in 2005, when His Honour allowed, in an obiter dictum remark, which was not determinative or dispositive of the case at all, for the possibility that the defeasance of a superannuation fund could conceivably be a violation of the just-terms requirement of section 51(xxxi) of the Constitution. But this is all His Honour had to say, at page 134 of the Commonwealth Law Report:

… I would not accept that statutory superannuation or pension benefits are inherently defeasible and that, on that account alone, their modification or withdrawal could never constitute an acquisition of property.

That is all His Honour said. And that seems to be the basis upon which a concern has been expressed among those who advise the government. But might I point out—and Senator Wong will understand this perfectly well—that merely for a judge to say that the defeasance of a fund ‘could never constitute an acquisition of property’ is a very different thing from saying that to create a legislative scheme whereby, conceivably, a claim could be made on a fund which would, in the circumstances of this case, be a de minimis claim—even in the event that there were anyone who would be a potential claimant on a Commonwealth superannuation fund as a result of the death of a partner between 1 July this year and November of this year—would not be regarded as the defeasance of that fund. Nor does His Honour say that it would be an acquisition of property from the fund on unjust terms. He merely says that he is not prepared to say that the modification or withdrawal could never constitute an acquisition of property.

I understand why governments, particularly when they seek legal advice, operate on the precautionary principle—that is entirely proper—but I must say, Senator Wong, that the degree of caution being exhibited by the government in relation to the possible application of section 51(xxxi) of the Constitution in this case to a Commonwealth fund in relation to the miniscule, if any, class of potential claimants is, I think, a concern so little grounded in any likely adjudication of this issue that it ought not to stand in the way of the government doing the right thing and commencing the operation of the legislation from 1 July.

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

Senator Brandis, I do have regard for the position you have taken in relation to this bill. But I have to say, in relation to doing the right thing, that for the opposition to lecture the government about delay in enacting these rights is really quite extraordinary—after so many years of government, and after the fact that these bills were delayed as a result of the opposition having difficulty with its own position—as it is for Senator Brandis to come in here and essentially criticise the government for not wanting, for very good policy reasons, to support a retrospectivity amendment which, in large part, is being put by the opposition as a result of their own delay and inaction on this issue.

Senator Brandis, I appreciate that you are a lawyer and I appreciate your views about the legal position in relation to the acquisition issue. I make the point that I raised a number of issues in relation to retrospectivity, of which that was one. For example, the adverse consequences for members of self-managed superannuation funds was also an issue raised. We do believe that there are legal complexities which would arise from the passage of this amendment. On this issue I would invite senators to consider that we are debating legislation which we regard as being overdue. This is really not the time to be introducing amendments, when the minister in the chamber has indicated very clearly that these particular amendments, in our view, would create legal complexity in terms of these reforms. For those senators who are genuinely seeking the passage of these reforms, I would invite consideration of the avenue that the government is proposing, whereby application could be made, and would be enabled to be made, to the finance minister.

Senator Brandis commenced his remarks by saying that such payments would be within the discretion of the finance minister. That is the case. That is precisely what I indicated the nature of the amendments would be. But I again say that the government’s view is that the retrospective operation of the bill and the amendments to the trust deeds would give rise to significant legal complications. We are proposing an alternative mechanism by which, I suppose, unfairness might be remedied. We would ask that senators in the chamber consider that approach rather than supporting an amendment which, in our view, may have significant legal complications as well as unintended consequences.

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

I do not want to prolong this, but can I just say four things very briefly in reply. First of all, we are not accusing the government of delay. We are accusing the government of offering a less satisfactory mechanism—one which, as the minister concedes, does not secure the rights of potential claimants but leaves them at the mercy of the exercise of a ministerial discretion. Secondly, with respect, Senator Wong, when you yourself thanked the Senate committee for the work that it had done, and when you are about to propose extensive amendments inspired by and informed by the deliberations of that committee, which it is plainly the government’s view will improve—

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

They are not the only reason.

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

In part they are.

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

They were not the only reason for the delay, George. You know that.

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

Excuse me, Senator Wong. May I finish? The only reason this legislation was referred to the Senate committee was so that it could be looked at and the Senate committee could make recommendations for its improvement. In many respects the government has adopted those recommendations, so in the government’s own view the process has improved the bill. So it does not really lie in the mouth of the government to say that this was about delay. Thirdly, you referred to self-managed superannuation funds, Senator Wong. This had nothing to do with self-managed superannuation funds. These are Commonwealth funds.

Fourthly, the government can take its legal advice from those who advise it. The opposition will take its legal advice from those who advise it. The opposition has considered the matter. The opposition has had the benefit of briefings from the minister’s office. So, without trespassing upon the confidentiality of those discussions, we are aware of the matters which are informing the thinking of the government. It is our considered view that the potential legal difficulties of which you speak are fanciful, that the application by the government of what I call the precautionary principle in this case has been taken too far and that the parliament may confidently proceed to pass the opposition’s amendment secure in the knowledge that it will not compromise the legal validity of the bill.

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

The government disagree with the legal opinion that Senator Brandis just gave us. I ask senators who care about actually ensuring the passage of this legislation whether they want to take a risk on the basis of Senator Brandis’s legal advice to the chamber. In relation to the self-managed superannuation funds, as I understood the amendment—and perhaps I misunderstood—schedule 4 of the amendment deals with the SI(S) Act, so that obviously extends beyond the Commonwealth superannuation funds sector. That was the basis of my indication previously.

Question put:

That the amendment (Senator Brandis’s) be agreed to.

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

I move government request (3) on sheet QH400:

That the House of Representatives be requested to make the following amendment:

(3)    Schedule 1, page 3 (line 2) to page 11 (line 21), omit the Schedule, substitute:

Schedule 1—Finance and Deregulation amendments

Parliamentary Contributory Superannuation Act 1948

1  Subsection 4(1) (definition of former spouse)

After “marital”, insert “or couple”.

2  Subsection 4(1)

Insert:

marital or couple relationship has the meaning given by section 4B.

3  Subsection 4(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

4  Subsection 4(1)

Insert:

spouse has a meaning affected by section 4C.

5  Subsection 4B(1)

After “marital”, insert “or couple”.

Note:   The heading to section 4B is replaced by the heading “Marital or couple relationship”.

6  Subsection 4B(1)

After “husband or wife”, insert “or partner”.

7  Subsection 4B(2)

After “husband or wife” (wherever occurring), insert “or partner”.

8  Subsection 4B(3)

After “marital”, insert “or couple”.

9  After paragraph 4B(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

10  At the end of paragraph 4B(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

11  Subsections 4C(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

12  Paragraph 19AA(2)(d)

Repeal the paragraph, substitute:

             (d)    was not or is not survived by a person with whom the deceased person had had a marital or couple relationship and who is:

                   (i)    the natural or adoptive parent of that child; or

                  (ii)    the parent of that child because the child is a child of the person within the meaning of the Family Law Act 1975;

13  Paragraph 19AA(2B)(a)

Repeal the paragraph, substitute:

             (a)    the child:

                   (i)    was born while the deceased person was having a marital or couple relationship with another person; or

                  (ii)    was adopted by the deceased person or the deceased person with that other person during the duration of that relationship; or

                 (iii)    was a child of the deceased person, and that other person, within the meaning of the Family Law Act 1975; and

14  Subsection 19AA(5) (definition of child)

Repeal the definition, substitute:

child, in relation to a person, means a child of the person, including:

             (a)    an adopted child or an ex-nuptial child of the person; and

             (b)    someone who is a child of the person within the meaning of the Family Law Act 1975.

15  Application of amendments of the Parliamentary Contributory Superannuation Act 1948

The amendments of the Parliamentary Contributory Superannuation Act 1948 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule if the deceased person:

             (a)    was entitled to a parliamentary allowance at the time of his or her death; or

             (b)    was entitled to a retiring allowance (whether or not the retiring allowance was immediately payable) at the time of his or her death.

Superannuation Act 1922

16  After subsection 48AB(4)

Insert:

     (4A)    If a pensioner or contributor died before the day on which Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced:

             (a)    the amendments of the Superannuation Act 1976 made by that Schedule do not apply in relation to any pension that, apart from this subsection, may be granted under this section in respect of the deceased pensioner or contributor; and

             (b)    the Superannuation Act 1976 as in force immediately before the commencement of Schedule 1 continues to apply in relation to any pension granted or that may be granted under this section in respect of the deceased pensioner or contributor.

17  At the end of section 48ABA

Add:

        (9)    For the purposes of applying the definitions of eligible child and spouse in subsection (1) in relation to a deceased pensioner who died before the day on which Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced:

             (a)    the amendments of the Superannuation Act 1976 made by that Schedule do not apply; and

             (b)    the Superannuation Act 1976 as in force immediately before the commencement of that Schedule continues to apply.

Superannuation Act 1976

18  Subsection 3(1) (definition of child)

Repeal the definition, substitute:

child, in relation to a person who has died, means:

             (a)    a child of the person, including:

                   (i)    an adopted child, an ex-nuptial child, a foster child, a stepchild or a ward, of the person; and

                  (ii)    someone who is a child of the person within the meaning of the Family Law Act 1975; or

             (b)    a child of a spouse of the person, including:

                   (i)    an adopted child, an ex-nuptial child, a foster child, a stepchild or a ward, of the spouse; and

                  (ii)    someone who is a child of the spouse within the meaning of the Family Law Act 1975.

19  Subsection 3(1) (definition of late short-term marital relationship)

Repeal the definition (including the note).

20  Subsection 3(1)

Insert:

late short-term marital or couple relationship, in relation to a deceased retirement pensioner, means a marital or couple relationship between the pensioner and his or her spouse that began:

             (a)    less than 3 years before the pensioner’s death; and

             (b)    after the pensioner became a retirement pensioner and had reached the age of 60 years.

21  Subsection 3(1)

Insert:

marital or couple relationship has the meaning given by section 8A.

22  Subsection 3(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

23  Subsection 3(1)

Insert:

spouse has a meaning affected by section 8B.

24  Subsection 3(1)

Insert:

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a partner of the person is the stepchild of the person, if he or she would be the person’s stepchild except that the person is not legally married to the partner.

25  Subsection 8A(1)

After “marital”, insert “or couple”.

Note:   The heading to section 8A is replaced by the heading “Marital or couple relationship”.

26  Subsection 8A(1)

After “husband or wife”, insert “or partner”.

27  Subsection 8A(2)

After “husband or wife” (wherever occurring), insert “or partner”.

28  Subsection 8A(3)

After “marital”, insert “or couple”.

29  After paragraph 8A(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

30  At the end of paragraph 8A(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

31  Subsections 8B(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

32  Subsections 94(2A), 95(1B) and 96(2A)

After “marital”, insert “or couple”.

33  Subsection 96AB(2) (paragraph (a) of the definition of relevant period)

After “marital”, insert “or couple”.

34  Paragraph 96BA(1)(a)

After “marital”, insert “or couple”.

35  Subsection 96BA(2) (paragraph (a) of the definition of relevant period)

After “marital”, insert “or couple”.

36  Subsection 108A(1)

After “marital”, insert “or couple”.

Note:   The heading to section 108A is altered by inserting “or couple” after “marital”.

37  Subsection 108A(5) (subparagraph (a)(i) of the definition of relevant period)

After “marital”, insert “or couple”.

38  Paragraph 109AB(2)(c)

After “marital”, insert “or couple”.

39  Paragraphs 109AB(3B)(b), (3C)(a) and (b), (5)(c), (5A)(b), (5B)(a) and (b)

After “marital”, insert “or couple”.

40  Paragraphs 110(4)(c) and (d) and (5B)(a)

After “marital”, insert “or couple”.

41  Subparagraph 110(5B)(b)(i)

After “marital”, insert “or couple”.

42  After subparagraph 110(5B)(b)(i)

Insert:

                 (ia)    was not a child of the spouse, and the pensioner, within the meaning of the Family Law Act 1975; or

43  Subparagraphs 110(5B)(b)(ii) and (iii)

After “marital”, insert “or couple”.

44  Paragraph 110(7)(c)

After “marital”, insert “or couple”.

45  Subparagraph 110(7A)(a)(ii)

After “marital”, insert “or couple”.

46  Subparagraph 110(7A)(b)(i)

After “marital”, insert “or couple”.

47  After subparagraph 110(7A)(b)(i)

Insert:

                 (ia)    was, within the meaning of the Family Law Act 1975, a child of the pensioner and the person with whom the pensioner had that marital or couple relationship; or

48  Subparagraphs 110(7A)(b)(ii) and (iii)

After “marital”, insert “or couple”.

49  Paragraph 110(7B)(a)

After “marital”, insert “or couple”.

50  Paragraph 110(14)(d)

Omit “an adopted child, an ex-nuptial child, a foster child, a step-child or a ward”, substitute “a child of a kind referred to in subparagraph (b)(i) or (ii) of the definition of child in subsection 3(1)”.

51  Paragraph 136(2B)(ma)

After “marital” (wherever occurring), insert “or couple”.

52  Application of amendments of the Superannuation Act 1976

The amendments of the Superannuation Act 1976 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule, if, at the time of his or her death, the deceased person was:

             (a)    an eligible employee (within the meaning of that Act); or

             (b)    a deferred benefit member (within the meaning of Division 4A of Part V of that Act); or

             (c)    a retirement pensioner (within the meaning of that Act).

Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (3) [item 24]

The effect of this amendment is to expand the range of persons in relation to whom reversionary benefits may be paid under the standing appropriation in:

• section 134 of the Superannuation Act 1922; and
• subsection 112(2) of the Superannuation Act 1976.

The amendment is covered by section 53 because it will increase a “proposed charge or burden on the people”.

Amendment (5) [item 2]

The effect of this amendment is to expand the range of persons in relation to whom reversionary benefits may be paid under the standing appropriation in:

• section 125 of the Defence Force Retirement and Death Benefits Act 1973; and
• section 15D of the Defence Forces Retirement Benefits Act 1948.

The amendment is covered by section 53 because it will increase a “proposed charge or burden on the people”.

Same-Sex Relationships (Equal Treatment in Commonwealth Laws––Superannuation) Bill 2008

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendments (3) and (5)

The Senate has long followed the practice that it should treat as requests amendments which would result in increased expenditure under a standing appropriation, although this interpretation is not consistent with other elements of the established interpretation of the third paragraph of section 53 of the Constitution. This has nothing to do with the introduction of bills under the first paragraph of section 53.

If it is correct that these amendments increase the number of individuals eligible for reversionary superannuation benefits payable from standing appropriations, it is in accordance with the precedents of the Senate that the amendments be moved as requests.

This amendment omits the previous schedule 1 to the bill and replaces it with a new schedule. It effects a number of amendments to the content of that schedule, and I can specifically indicate those now. I will not go through all the items, because they are quite numerous, but I can if senators wish me to. A number of items in the schedule now refer to ‘a marital or couple relationship’ rather than ‘a couple relationship’. Items (6), (7), (26) and (27) will adopt the term ‘husband or wife or partner’. Items (9) and (29) will refer to regulations made under the Acts Interpretation Act rather than those made under the Judges’ Pensions Act. Items (10), (12), (13), (14), (18), (30), (42) and (47) will refer to ‘a child’ within the meaning of the Family Law Act rather than the ‘product of the relationship’ definition of a child. Further, items (5), (14), (16), (26), (46) and (52) of schedule 1 to the bill as introduced are no longer required as a consequence of the new approach to the definition of ‘a child’ and do not have equivalents in the amended schedule.

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

The opposition supports these amendments. In fact, most of the amendments to which Senator Wong has just referred arise from recommendations 1 and 2 in the additional comments by Liberal senators in the October 2008 report into the bill of the Senate Standing Committee on Legal and Constitutional Affairs, where Liberal senators recommended firstly, by recommendation 1, that the separate status of marriage be preserved and recognised—the government has conceded that point, and I thank them for doing so, though I regret that the issue was ever raised in the first place—and secondly, by recommendation 2, that the bill be amended to remove references to a child as the product of the person’s relationship. Once again, this is a concession by the government to the recommendations of Liberal senators, and we welcome it.

Might I take the opportunity, now that I am on my feet, Temporary Chairman Barnett, to thank and congratulate you—as the deputy chair of that committee, who was the principal inspiration of those recommendations which the government has now seen fit to adopt—on your success.

The Temporary Chairman:

Thank you, indeed.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

My question is to the minister. I refer the minister to item 24 relating to subsection 3(1), where it says:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

I want to know what the definition of ‘relationship’ is as defined by that subsection. What exactly does that term mean?

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

Are you referring to the amendments I have just moved or to the current bill?

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I am referring to the current bill as it refers to the definition of ‘partner’. It is item 24 relating to subsection 3(1) on page 7 of the bill. If 24 subsection 3(1) is still in play, what is defined by the term ‘relationship’?

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

On page 7, in the subsection you are referring to, I have a definition of ‘partner’. Is that the section about which you are seeking to ask questions?

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Yes.

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

Item 24 inserts in subsection 3(1) of the bill a definition of a partner:

… a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

In relation to that subsection, what do you define as a relationship?

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

On the broader issue, which I assume is the issue raised in your contribution, I again reiterate the government’s position. The government has a clear view that the provisions of the Marriage Act are retained. The government has a clear view—which was made clear prior to the election—that marriage is a union between a man and a woman. We do not regard the removal of discrimination, as set out in this bill, as in any way undermining the institution of marriage; it is about the removal of discrimination. I am advised that ‘relationship’ in this context is the common understanding of the term, not a statutory definition.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Can you please inform me what the common understanding of ‘relationship’ is?

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

I am not sure that I can assist you much further. I am sure lawyers have a range of views about this but, if the tenor of your proposition relates to marriage, I reiterate what I have previously said.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I will move on to the next issue. I respect what you said about maintaining the definition of marriage. I am glad that remains on the record. But how long, referring to item 24 relating to subsection 3(1) and the term ‘relationship’, would that relationship have to endure? How long does it have to go before a relationship is a relationship?

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

I am advised that there is not a specific time frame in respect of that provision of the bill.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

That being the case, a relationship could be for a day?

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

The advice I am given is that the approaches taken by the courts in interpreting notions of ‘de facto relationship’ in various other aspects of law would also apply in these circumstances. Again, I indicate I am not advised that there is any specific statutory definition in relation to this provision.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

So what do I rely on for the definition of a relationship, seeing there is no definitive term for what a relationship is or how long a relationship needs to last? I think this is a crucial part in determining what a ‘partner’ is—and determining what a partner is is a crucial part of determining how this bill operates.

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

I think the most helpful thing I can do for you, Senator Joyce, is to refer you to the definition of ‘relationship’ that is included in the Acts Interpretation Act. In the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, which is the bill we were previously discussing, in the second reading debate, the amendment to the Acts Interpretation Act was discussed. The de facto relationship definition contained in that bill—because of course we are discussing the superannuation bill at the moment—is as follows:

22C De facto relationships

(1)

For the purposes of paragraph 22A(b), a person is in a de facto relationship with another person if the persons:

(a)

are not legally married to each other; and

(b)

are not related by family (see subsection (6)); and

(c)

have a relationship as a couple living together on a genuine domestic basis.

(2)

In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:

(a)

the duration of the relationship;

(b)

the nature and extent of their common residence;

(c)

whether a sexual relationship exists;

(d)

the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)

the ownership, use and acquisition of their property;

(f)

the degree of mutual commitment to a shared life;

(g)

the care and support of children;

(h)

the reputation and public aspects of the relationship.

In terms of the definition of ‘de facto relationship’, as opposed to the reference which is contained in the superannuation bill, that should give the honourable senator some assistance.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Can I just confirm that the relationship definition that you just read out then, Minister, and the relationship definition as would be assumed in item 24, the proposed insertion in subsection 3(1), are one and the same definition?

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

No, Senator. I indicated to you that there was no definition included in relation to the provision to which you referred. What I have said to you is that, at common law, courts would have applied a range of factors, and I am advised that the sorts of factors that would be applied would include the factors which are included in the definition under the Acts Interpretation Act, to which I have referred you.

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

The question is that government request for amendment (3) on sheet QH400 be agreed to.

Question agreed to.

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

by leave—I move government amendments (4) and (1) on sheet QH400:

(1)    Clause 2, page 2 (table item 3), omit the table item, substitute:

(4)    Schedule 2, page 12 (line 2) to page 17 (line 8), omit the Schedule, substitute:

Schedule 2—Attorney-General’s amendments

Part 1—Amendment of the Acts Interpretation Act 1901

Acts Interpretation Act 1901

1  After section 22

Insert:

22A References to de facto partners

                 For the purposes of a provision of an Act that is a provision in which de facto partner has the meaning given by this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

             (a)    the person is in a registered relationship with the other person under section 22B; or

             (b)    the person is in a de facto relationship with the other person under section 22C.

22B Registered relationships

                 For the purposes of paragraph 22A(a), a person is in a registered relationship with another person if the relationship between the persons is registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

22C De facto relationships

        (1)    For the purposes of paragraph 22A(b), a person is in a de facto relationship with another person if the persons:

             (a)    are not legally married to each other; and

             (b)    are not related by family (see subsection (6)); and

             (c)    have a relationship as a couple living together on a genuine domestic basis.

        (2)    In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:

             (a)    the duration of the relationship;

             (b)    the nature and extent of their common residence;

             (c)    whether a sexual relationship exists;

             (d)    the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

             (e)    the ownership, use and acquisition of their property;

              (f)    the degree of mutual commitment to a shared life;

             (g)    the care and support of children;

             (h)    the reputation and public aspects of the relationship.

        (3)    No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c).

        (4)    For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of:

             (a)    a temporary absence from each other; or

             (b)    illness or infirmity of either or both of them.

        (5)    For the purposes of subsection (1), a de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section 22B) with someone else or is in another de facto relationship.

        (6)    For the purposes of paragraph (1)(b), 2 persons are related by family if:

             (a)    one is the child (including an adopted child) of the other; or

             (b)    one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

             (c)    they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

        (7)    For the purposes of subsection (6), adopted means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

Part 2—Amendment of other Acts

Federal Magistrates Act 1999

2  Section 5

Insert:

marital or couple relationship has the meaning given by subclause 9E(5) of Schedule 1.

3  Section 5 (definition of marital relationship)

Repeal the definition.

4  Section 5

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

5  Subclauses 9E(2), (3) and (4) of Schedule 1

After “marital” (wherever occurring), insert “or couple”.

6  Subclause 9E(5) of Schedule 1

After “marital”, insert “or couple”.

Note:   The heading to subclause 9E(5) of Schedule 1 is replaced by the heading “Meaning of marital or couple relationship”.

7  Subclause 9E(5) of Schedule 1

After “husband or wife” (wherever occurring), insert “or partner”.

8  Subclause 9E(6) of Schedule 1

After “marital”, insert “or couple”.

9  After paragraph 9E(7)(b) of Schedule 1

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

10  At the end of paragraph 9E(7)(c) of Schedule 1

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

11  After subparagraph 9F(1)(b)(i) of Schedule 1

Insert:

                 (ia)    the person is a child of the Magistrate within the meaning of the Family Law Act 1975;

12  Application of amendments of the Federal Magistrates Act 1999

The amendments of the Federal Magistrates Act 1999 made by this Schedule apply in relation to any payment payable under clause 9D of Schedule 1 to that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person:

             (a)    held office as a Federal Magistrate; or

             (b)    was a retired disabled Federal Magistrate.

Judges’ Pensions Act 1968

13  Subsection 4(1)

Insert:

child of a marital or couple relationship, in relation to a marital or couple relationship, means:

             (a)    a child born of the marital or couple relationship; or

             (b)    a child adopted by the people in the marital or couple relationship during the period of the relationship; or

             (c)    someone who is, within the meaning of the Family Law Act 1975, a child of both of the people in the marital or couple relationship.

14  Subsection 4(1) (definition of child of a marital relationship)

Repeal the definition.

15  Subsection 4(1)

Insert:

marital or couple relationship has the meaning given by section 4AB.

16  Subsection 4(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

17  Subsection 4(1)

Insert:

spouse has a meaning affected by section 4AC.

18  After paragraph 4AA(a)

Insert:

           (aa)    the child is a child of the deceased Judge within the meaning of the Family Law Act 1975; or

19  Subsection 4AB(1)

After “marital”, insert “or couple”.

Note:   The heading to section 4AB is replaced by the heading “Marital or couple relationship”.

20  Subsections 4AB(1) and (2)

After “husband or wife” (wherever occurring), insert “or partner”.

21  Subsection 4AB(3)

After “marital”, insert “or couple”.

22  After paragraph 4AB(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

23  At the end of paragraph 4AB(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

24  Subsections 4AC(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

25  Subsections 10(2), 11(3) and 12(3)

After “marital” (wherever occurring), insert “or couple”.

26  Application of amendments of the Judges’ Pensions Act 1968

(1)    The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was a Judge or a retired Judge.

(2)    The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under the Building and Construction Industry Improvement Act 2005 in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was or had been the ABC Commissioner.

Law Officers Act 1964

27  Subsection 16(1)

Omit “other than subsection 6(3) (including the provisions relating to widows and children)”, substitute “other than subsection 4(2) (including the provisions relating to spouses and children)”.

28  Application of amendments of the Law Officers Act 1964

The amendments of the Law Officers Act 1964 made by this Schedule apply in relation to any pension payable under section 16 of that Act because of the application of the Judges’ Pensions Act 1968 in respect of a person who:

             (a)    was appointed as Solicitor-General before 1 January 1998; and

             (b)    dies on or after the commencement of this Schedule.

Part 3—Regulations

29  Regulations may deal with transitional, saving or application matters

The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments and repeals made by this Schedule or any other Schedule to this Act.

Government amendment (4) omits previous schedule 2 to the bill and replaces it with a new schedule 2. Amendment (4) effects a number of amendments to the content of schedule 2. These include the following specifically. Item 1 of schedule 2 will now insert the definition of ‘de facto partner’ into the Acts Interpretation Act. Items 2, 5, 6, 8, 13, 15, 19, 21, 24 and 25 of schedule 2 will refer to a marital or couple relationship rather than a couple relationship. Items 7 and 20 will adopt the term ‘husband or wife or partner’. Items 9 and 22 will refer to regulations made under the Acts Interpretation Act rather than the Judges’ Pensions Act. Items 10, 11 and 13, 18 and 23 will refer to a child within the meaning of the Family Law Act rather than the ‘product of a relationship’ definition of a child. Item 29 will insert a power for the Governor-General to make regulations of a transitional nature that relate to amendments made by schedule 2 or any other schedule to the act. Further, items 1, 5, 19, 20 and 29 of schedule 2 to the bill, as introduced, are no longer required as a consequence of the new approach to the definition of a child and do not have equivalents in the amended schedule 1.

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

Minister, can you clarify whether the amendment to clause 1, were it to be passed, would have the effect of reversing the effect of the result of the division we had a few moments ago in relation to the commencement date of schedules 2 and 3?

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

Yes, it would.

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

In that event, the opposition cannot support that amendment. The chamber has just resolved that it wishes the commencement date to be 1 July. Could I ask you, Senator Wong, in view of the chamber’s determination, to reconsider your position.

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

I propose to move amendments (1) and (4) separately.

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

The question is that amendment (1) on sheet QH400 be agreed to.

Question negatived.

The Temporary Chairman:

The question is that amendment (4) on sheet QH400 be agreed to.

Question agreed to.

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

I move amendment (2) on sheet 5615:

(2)    Schedule 2, omit section 22A, substitute:

22A References to couple relationships

                 For the purposes of a provision of an Act that is a provision in which couple relationship has the meaning given by this Act, a person is a partner of a couple relationship with another person (whether of the same sex or a different sex) if:

             (a)    the person is in a registered relationship with the other person under section 22B; or

             (b)    the person is in a de facto relationship with the other person under section 22C.

This amendment is designed to recognise that those people who enter into the formalised union of a registered relationship are not simply de facto partners; they are in a registered relationship. This amendment will use the term ‘couple relationship’ to refer to both de facto and registered relationships. It is not changing anything in relation to marriage. It is simply saying: let’s recognise under the ‘couple relationship’ definition that there are two different relationships—there are de facto relationships and then there are registered relationships, in which people have actually formalised their relationship.

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

Can I indicate the government’s response. The government has taken the approach of making extensive amendments with the intention of not only removing discrimination but also expediting this without requiring a major rewrite of a substantial amount of Commonwealth legislation. Utilisation of the term ‘couple relationship’, such as is proposed in the Greens’ amendment, would require much more extensive amendment to legislation—far more than is proposed now—and would inevitably ensure that this matter is further delayed. The Greens’ amendment notes that the Same Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform Bill) 2008 will require consequential amendment to omit ‘de facto partner’ and to substitute ‘partner of a couple relationship’. Again, this would require extensive amendment of many pieces of government legislation. I am advised that this would create a number of implementation problems, particularly in relation to tax legislation, where the term ‘partner’ is used in another context. I am also advised that using a term other than ‘de facto relationship’ would be inconsistent with the terms used in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008.

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

I thank the minister for clarifying the government’s opposition to this amendment. I would like to point out that all we are doing is amending the current definition proposed in this bill by the minister in the Acts Interpretation Act. It is simply saying that we recognise registered relationships, which is already in another part of the government’s bill anyway. I do not understand why we would not simply tighten it up and ensure that, if we are going to support registered relationships, we give them some type of status next to de facto relationships under the umbrella term of ‘couple relationship’.

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

When various pieces of legislation are amended, there are often consequences for a whole range of legislation. We are very happy to provide a briefing on this issue if you wish but I invite you to recognise that amending one act, in and of itself, does not necessarily mean that consequential amendments are not then required for other legislation. In the context where we are amending some 68 pieces of Commonwealth legislation—for example, the general law reform bill—there are obviously consequences for various amendments that may be moved in this chamber. I encourage the Greens to be apprised of those consequences when considering the amendments they are putting to the Senate. In fact, you actually even note the consequential amendments that would be required in your own amendment. I reiterate that the use of the term ‘couple relationship’ would require extensive amendment to legislation. That is, in part, because the term ‘de facto relationship’ has been the key by which this antidiscrimination measure has been put. The advice I have is that the approach you are proposing would create problems in various pieces of legislation. Not only would it require further and more extensive legislative amendments but it would also create specific problems in relation to tax legislation. Also, it is inconsistent with the term used in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, so I invite you to reconsider the amendment.

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

I indicate for the record that the opposition does not support this amendment.

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

I ask the minister: is it that you do not support the idea of defining a couple relationship and giving particular recognition to those in registered relationships, even though, alongside de facto relationships, we are still talking about people having the same entitlements? If that is the case, if you do not support that, I understand. If you do support that, why didn’t the government propose these amendments long ago?

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

For the third time, Senator: it would have required a much more extensive rewrite of Commonwealth legislation. Therefore, the government took the approach set out in the bills regarding the amendments to ‘de facto partner’.

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

I thank the minister for her response. The Greens do not in any way want to tie up this process. We have been advocating that this legislation be passed as quickly as possible, and we will continue to work with the government on this. We are disappointed, though, that this definition was not taken on board much earlier on.

Question negatived.

I move amendment (3) on sheet 5615:

(3)    Schedule 2, omit section 22B, substitute:

22B Registered relationships

        (1)    For the purposes of paragraph 22A(a), a person is in a registered relationship with another person if the relationship between the persons is:

             (a)    registered under a prescribed law of a State or Territory as a prescribed kind of relationship; or

             (b)    registered in a foreign country where, under the local law, the relationship was, at the time when it was registered, recognised as valid.

        (2)    To avoid doubt, paragraph 22B(1)(b) does not provide for the recognition of marriages under foreign law which are recognised under Part VA of the Marriage Act 1961.

This amendment is in relation to recognition of overseas formalised relationships. I refer back to the point that the government’s own proposition supports section 22B of the Acts Interpretation Act, which is dedicated to registered relationships in Australia. What we are trying to do in amendment (3) is to say that if we are prepared to recognise those relationships in Australia then we should be prepared to recognise those that are registered overseas as well. This amendment will allow the government to prescribe types of relationships created in a foreign country under local laws as recognised as a type of registered relationship under the Acts Interpretation Act and in other locations.

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

It is the case, and I think that I referred to this in my summing up of the second reading debate, that the bill does not explicitly recognise overseas relationship registration and civil unions. As I also said in my summing up, the fact of such a relationship, whether a civil union or registered relationship, will make it easier for a same-sex couple to prove the existence of a de facto relationship. For example, evidence of an overseas civil union or overseas registered relationship may demonstrate a mutual commitment to a shared life for the purposes of section 22C(2)(f) of the Acts Interpretation Act. It would also clearly be relevant to the reputation and public aspects of the relationship for the purposes of section 22C(2)(h). It is the case that government policy in relation to overseas civil unions does have to have regard to the position of the government and to the requirement in the Marriage Act that marriage in Australia is between a man and a woman. Accordingly, overseas same-sex unions will not be recognised under this legislation as marriages in Australia.

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

The opposition also opposes this amendment. It has been central to the opposition’s position throughout this debate that our support for this legislation is based, among other things, on the proposition that nothing in it challenges the established status of marriage as an institution between a man and a woman. The amendment proposed by Senator Hanson-Young does challenge that proposition, at least in a limited fashion. For that reason, the opposition is opposed to it.

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

I thank the government and the opposition for their comments in relation to their opposition to this amendment. Perhaps the minister could respond as to why we are prepared to recognise registered relationships in Australia but not those from New Zealand?

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

As I am advised, the requirements in New Zealand are substantially similar to the requirements under the Marriage Act. So, consistent with my previous contribution, the government has the view that such relationships can be recognised in the sense that I outlined—that is, evidence of the existence of a relationship within the definition of section 22C(2) of the Acts Interpretation Act.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I want to clearly put on the record that the final move towards the dissolving of the concept of marriage would be just about there if this amendment were to go through. Therefore, I fervently disagree with it. I think that I reflect the views of many of my colleagues in that, although I would not for one moment say that I reflect the views of all of them. However, for the record, I would like to know what the substantive differences are between the term ‘relationship’ as we have now proposed in this bill and what marriage actually is.

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

I wonder if what we are now getting in the Senate is an argument that perhaps would be better off in the opposition party rooms. I am happy to respond, but it seems to me that we are having a debate that really is a debate between you and your party colleagues, with respect. The government have made it clear that our view is that marriage is an institution between a man and a woman. We made that clear prior to the election. That is also the way in which marriage is described under the Marriage Act. What we are dealing with here is the removal of discrimination against same-sex couples.

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

Following from Senator Wong’s remarks: there is no difference of view within the opposition in relation to this matter whatsoever. It has been, as I have said before, central to our support for this legislation that it does not impinge on the status of marriage. Senator Joyce and I and every last member of the opposition are united in that view and in our opposition to this amendment.

Question negatived.

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

I move government request (5) on sheet QH400:

That the House of Representatives be requested to make the following amendment:

(5)    Schedule 3, items 1 to 17, page 18 (line 5) to page 20 (line 12), omit the items, substitute:

1  Subsection 3(1) (subparagraph (a)(ii) of the definition of child)

Omit “and”, substitute “or”.

2  Subsection 3(1) (after subparagraph (a)(ii) of the definition of child)

Insert:

                 (iii)    was, immediately before the member’s death, someone who would have been the stepchild of the member except that the member was not legally married to a spouse who survives the member; or

                 (iv)    is a child of the member within the meaning of the Family Law Act 1975; and

3  Subsection 3(1) (at the end of the definition of child)

Add:

; and (c)                a person who:

                   (i)    is, within the meaning of the Family Law Act 1975, a child of a spouse who survives the member; and

                  (ii)    was wholly or substantially dependent upon the member at the time of the member’s death.

4  Subsection 3(1) (definition of eligible orphan)

After “pension”, insert “or spouse pension”.

5  Subsection 3(1)

Insert:

marital or couple relationship has the meaning given by section 6A.

6  Subsection 3(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

7  Subsection 3(1) (definition of pension benefit)

After “widow’s pension”, insert “, spouse pension”.

8  Subsection 3(1)

Insert:

spouse has a meaning affected by section 6B.

9  Subsection 6A(1)

Omit “marital relationship”, substitute “marital or couple relationship”.

Note:   The heading to section 6A is replaced by the heading “Marital or couple relationship”.

10  Subsection 6A(1)

After “husband or wife”, insert “or partner”.

11  Subsection 6A(2)

After “husband or wife” (wherever occurring), insert “or partner”.

12  Subsection 6A(3)

After “marital”, insert “or couple”.

13  After paragraph 6A(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

14  At the end of paragraph 6A(4)(c)

Add:

          ; or (iii)    a child of both of the persons for the purposes of the Family Law Act 1975;

15  Subsections 6B(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

16  Paragraph 6BA(1)(b)

After “marital”, insert “or couple”.

Note:   The heading to section 6BA is altered by omitting “marriages” and substituting “marital or couple relationships”.

I will provide some information to the Senate about the nature of that amendment. Government amendment (5) replaces items 1 to 17 of the previous schedule 3 to the act. Amendment (5) effects a number of specific amendments. I will go through these sequentially. Items 5, 9, 12, 15 and 16 of schedule 3 refer to ‘marital or couple relationship’ rather than ‘couple relationship’. Items 10 and 11 adopt the term ‘husband or wife or partner’. Item 13 refers to regulations made under the Acts Interpretation Act rather than under the Judges’ Pensions Act. Items 2, 3 and 14 refer to a child within the meaning of the Family Law Act rather than the ‘product of the relationship’ definition of a child.

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

Can I indicate on behalf of the opposition that the opposition supports this amendment. This is, once again, an amendment that was largely inspired by the recommendations of the Liberal senators on the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the bill. It is a beneficial amendment in recognising the status of marriage and appropriately describing children. For those reasons and for the reasons I indicated before, which I will not reiterate, we will support it.

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

I indicate that the Australian Greens are supporting this government amendment as well.

Question agreed to.

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

Consistent with the previous decision in the Senate, I do not propose to move government amendment (2) on sheet QH400, which also deals with commencement. I simply move government amendment (6) on sheet QH400, Treasury amendments:

(6)    Schedule 4, page 26 (line 2) to page 30 (line 14), omit the Schedule, substitute:

Schedule 4—Treasury amendments

Part 1—Superannuation law

Retirement Savings Accounts Act 1997

1  Subsections 20(2) and (3)

Repeal the subsections, substitute:

        (2)    The spouse, in relation to a person, includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

        (3)    Any child, in relation to a person, includes:

             (a)    a stepchild, an ex-nuptial child or an adopted child of the person; and

             (b)    a child of the person’s spouse; and

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975.

2  Application of amendments of the Retirement Savings Accounts Act 1997

The amendments of the Retirement Savings Accounts Act 1997 made by this Schedule apply to the 2008-2009 year of income and later years.

Small Superannuation Accounts Act 1995

3  Section 4

Insert:

child, of a person, means a child of the person within the meaning of the Superannuation Industry (Supervision) Act 1993.

4  Section 4 (definition of spouse)

Repeal the definition (not including the note), substitute:

spouse of a person includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

5  Application of amendments of the Small Superannuation Accounts Act 1995

The amendments of the Small Superannuation Accounts Act 1995 made by this Schedule apply to the 2008-2009 year of income and later years.

Superannuation (Government Co-contribution for Low Income Earners) Act 2003

6  Subsection 54(3) (definition of spouse)

Repeal the definition, substitute:

spouse of a beneficiary of a Government co-contribution includes:

             (a)    a person (whether of the same sex or a different sex) with whom the beneficiary is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    a person who, although not legally married to the beneficiary, lives with the beneficiary on a genuine domestic basis in a relationship as a couple.

7  Application of amendments of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003

The amendments of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 made by this Schedule apply to the 2008-2009 income year and later income years.

Superannuation Industry (Supervision) Act 1993

8  Subsection 10(1) (definition of child)

Repeal the definition, substitute:

child, in relation to a person, includes:

             (a)    an adopted child, a stepchild or an ex-nuptial child of the person; and

             (b)    a child of the person’s spouse; and

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975.

9  Subsection 10(1)

Insert:

relative of an individual means the following:

             (a)    a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;

             (b)    a spouse of the individual or of any other individual referred to in paragraph (a).

Note:   Subsection (6) may be relevant to determining relationships for the purposes of paragraph (a) of the definition of relative.

10  Subsection 10(1) (definition of spouse)

Repeal the definition, substitute:

spouse of a person includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

11  At the end of section 10

Add:

        (5)    For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

12  Subsection 17A(9) (paragraphs (b) and (c) of the definition of relative)

Repeal the paragraphs, substitute:

             (b)    a spouse or former spouse of the individual, or of an individual referred to in paragraph (a).

13  After subsection 17A(9)

Insert:

     (9A)    For the purposes of paragraph (a) of the definition of relative in subsection (9), if one individual is the child of another individual because of the definition of child in subsection 10(1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

14  Subsection 65(6)

Repeal the subsection.

15  Subsection 70E(4) (definition of relative)

Repeal the definition.

16  Application of amendments of the Superannuation Industry (Supervision) Act 1993

(1)    Subject to subitems (2) and (3), the amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply to the 2008-2009 year of income and later years.

Amendments affecting section 65

(2)    The amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply for the purposes of the operation of section 65 of that Act in relation to:

             (a)    money lent on or after the day on which this Act receives the Royal Assent; and

             (b)    any other financial assistance commenced to be given on or after the day on which this Act receives the Royal Assent.

Amendments affecting section 66

(3)    The amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply for the purposes of the operation of section 66 of that Act in relation to assets acquired on or after the day on which this Act receives the Royal Assent.

17  Transitional provision—in-house assets

(1)    If:

             (a)    an asset of a superannuation fund consists of:

                   (i)    a loan or an investment made before the day on which this Act receives the Royal Assent; or

                  (ii)    a loan or an investment made after that day under a contract entered into before that day; or

                 (iii)    an asset that becomes subject to a lease or a lease arrangement before that day; and

             (b)    apart from this item, the asset would be an in-house asset of the fund at any time after the commencement of this Schedule; and

             (c)    the asset would be an in-house asset of the fund only because of the amendments of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) made by this Schedule;

then, for the purposes of the operation of Part 8 of the SIS Act on or after the commencement of this Schedule, the asset is not an in-house asset of the fund.

(2)    For the purposes of subparagraph (1)(a)(iii), if:

             (a)    a lease or a lease arrangement, enforceable by legal proceedings, in respect of an asset was entered into before the day on which this Act receives the Royal Assent; and

             (b)    the lease or lease arrangement came into force on or after that day;

the asset is taken to have become subject to the lease or lease arrangement before that day.

Part 2—Taxation law

Income Tax (Transitional Provisions) Act 1997

18  After section 295-465

Insert:

295-485A Meaning of spouse and child for 2008-2009 income year

        (1)    This section applies only for the 2008-2009 income year.

        (2)    For the purposes of section 295-485 of the Income Tax Assessment Act 1997, paragraph 295-485(1)(a) of that Act applies as if:

             (a)    the reference to a spouse or former spouse of the deceased were a reference to:

                   (i)    a spouse of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008; or

                  (ii)    an individual who was formerly such a spouse; and

             (b)    the reference to a child of the deceased were a reference to a child of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008.

19  At the end of Division 302

Add:

302-195A Meaning of death benefits dependant for 2008-2009 income year

        (1)    This section applies only for the 2008-2009 income year.

        (2)    For the purposes of Subdivision 82-B of Division 82, Division 302 and section 303-5 of the Income Tax Assessment Act 1997, the definition of death benefits dependant in section 302-195 of that Act applies as if paragraphs (a) and (b) of the definition were replaced with the following paragraphs:

             (a)    a spouse of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 or a person who was formerly such a spouse; or

             (b)    a child of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008, who is aged less than 18.

Part 3—Application of amendments of the Family Law Act 1975

20  Application of amendments of the Family Law Act 1975

For the purposes of an amendment made by this Schedule that refers to the Family Law Act 1975:

             (a)    the amendments of that Act made by items 5 and 21 of Schedule 1, and Schedule 3A, to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Financial Matters Act) are taken to have commenced on 1 July 2008; and

             (b)    the first regulations made for the purposes of subparagraph 60H(1)(b)(ii) of the Family Law Act 1975 inserted by Schedule 3A to the De Facto Financial Matters Act are taken to have commenced on 1 July 2008; and

             (c)    the first regulations made for the purposes of subsection 60HB(1) of the Family Law Act 1975 inserted by Schedule 3A to the De Facto Financial Matters Act are taken to have commenced on 1 July 2008.

I will provide the Senate with some information in respect of this amendment. Government amendment (6) omits the previous schedule 4 to the bill, replacing it with a new schedule 4. Amendment (6) effects a number of amendments to the content of schedule 4. These include items 1, 4, 6 and 10, which will harmonise the approach to the definition of ‘spouse’ in the bill with that of the general law reform bill. Items 1, 4, 6 and 10 repeal the definitions of ‘spouse’ in relevant acts to be amended and substitute a new definition. The new definition will expand the ordinary meaning of ‘spouse’ in the amended acts to include, first, ‘another person, whether of the same sex or a different sex, with whom the person is in a relationship that is registered under a law of a state or territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section’ and, second, ‘another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple’.

Items 1 and 8 refer to a child within the meaning of the Family Law Act rather than the ‘product of the relationship’ definition of a child. Items 9, 11, 12, 13, 14 and 15 will insert the new approach to recognition of family relationships developed for the general law reform bill into the SI(S) Act, the Superannuation Industry (Supervision) Act. Items 14 and 15 repeal, respectively, section 65(6) of the SI(S) Act and the definition of ‘relative’ provided in section 70E(4) of that act as a consequence of the insertion of a general definition of ‘relative’ for the SI(S) Act by item 11. Item 16 inserts application provisions in relation to the amendments to the SI(S) Act. Item 17 introduces a transitional provision in relation to part 8 of the SI(S) Act and item 20 inserts an application provision relating to the commencement of amendments to the Family Law Act made by the family law amendment bill. This will allow the new definitions of the Family Law Act to apply for the purposes of amendments made by this schedule referring to that act.

The Temporary Chairman:

The question is that government amendment (6) on sheet QH400 be agreed to. Senator Hanson-Young, I understand that you have amendments to amendment (6), being Australian Greens amendments (4) and (5).

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

I move:

(4)    After proposed item 13, insert:

13A  At the end of Part 4

Add:

36A Information on discrimination (private superannuation funds)

        (1)    A private sector fund must, within 60 days of the commencement of Schedule 4 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008, provide to APRA a report containing the following information:

             (a)    whether the trust deed by which the entity is constituted recognises members of the opposite sex as a couple (however defined); and

             (b)    whether the trust deed by which the entity is constituted recognises members of the same sex as a couple (however defined); and

             (c)    any differences in the way the trust deed recognises as a couple (however defined) members of the opposite sex, as compared with members of the same sex.

        (2)    APRA must place a copy of any report made under this section on the Internet with public access through APRA’s home page.

        (3)    If there is any material change to the information published by an entity under this Division, the entity must provide an up-to-date report within 7 days.

This amendment relates to how the current bill only mandates that same-sex couples are given the same entitlements in public Commonwealth superannuation funds. This is something that has been raised numerous times throughout the committee process. The Greens have been quite upfront about our concern that, despite the fact that almost 90 per cent of Australians have their superannuation tied up in private or commercial superannuation funds, this bill does not mandate that those funds adopt the new definition of a de facto relationship and thereby recognise the rights and entitlements of same-sex couples as equal to those of opposite-sex couples. Amendment (4) asks the private sector funds to, within 60 days of the commencement of schedule 4, provide a report as to whether they will adopt the new definition of de facto relationship, which would involve giving the same entitlements to same-sex couples as to opposite-sex couples. It is simply about allowing individuals and punters the information so they can vote with their feet.

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

The government is not supporting this amendment. The proposed amendment introduces a new section into part 4 of the SI(S) Act. This part is administered by APRA. Self-managed superannuation funds would have to be excluded, as they are not managed by APRA but by the ATO; otherwise, section 6 of the SI(S) Act would also have to be amended. Section 36A(1), as proposed by the amendment, refers to a ‘private sector fund’. I am advised that a private sector fund is defined in the SI(S) Act and, broadly speaking, covers all super funds that are not public sector super funds. A ‘private sector fund’ includes self-managed superannuation funds. This amendment would therefore also need to specifically exclude self-managed superannuation funds. There are approximately 400,000 such funds which do not report to APRA.

Section 36A(1) as proposed by the amendment requires private sector funds to report within 60 days of the commencement of schedule 4. As parts 1 to 3 of the bill generally commence on 1 July 2008, particularly in the light of the amendment that Senator Hanson-Young supports, 60 days would take us to 29 August 2008, which is clearly not possible.

Section 36A(1) refers to an entity constituted by a trust deed. It is certainly possible that some funds may not be constituted by a trust deed but by governing rules; therefore the sections would not apply to them.

Section 36A(1) refers to recognising members, whether opposite-sex or same-sex, as a couple. Funds do not generally recognise couples; they provide benefits to individual members or, in the event of a member’s death, to the member’s dependants or to the member’s legal personal representative. So our advice is that funds would have difficulty complying with the proposed amendment as currently drafted.

What funds may also do is limit the dependants to whom death benefits, and in particular reversionary benefits, are paid. Dependants are defined in the SI(S) Act and will now include same-sex spouses. Whilst most funds will probably recognise the definition of spouse in the SI(S) Act, they may still restrict the payment of a reversionary pension to an opposite-sex spouse.

Section 36A(2) as proposed by the Greens amendment requires APRA to place all reports on its website. As there are currently approximately 400,000—I understand 388-odd thousand—self-managed superannuation funds, this would cause significant logistical problems for APRA. Further, while section 36A imposes obligations on both funds and on APRA, there are no sanctions for not meeting these obligations.

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

Given the government’s opposition to this amendment—and I take the minister’s comments on board—will the minister declare in the chamber for the public record that this bill does not guarantee rights to all same-sex couples in Australia?

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

The intention of the legislation is to provide the same rights to same-sex couples as are provided to opposite-sex de facto couples in Australia.

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

Can I just indicate on behalf of the opposition that we are also opposing these amendments.

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

I will ask the minister the question again. Will the minister put on the public record that this particular bill, despite the fact that it is going a long way in terms of ensuring that same-sex couples in public superannuation funds have the same entitlements as opposite-sex couples, does not guarantee the same entitlements for same-sex couples in public funds as it does for those in private funds?

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

Senator Hanson-Young, obviously there are discretions of the trustees in the context of superannuation laws which are retained, whether in relation to opposite-sex or same-sex couples. But I think all of us understand the political game that is being played here. I want to be very clear. This government went to the election with a very clear election commitment to give same-sex couples the same rights as de facto heterosexual couples. That is the intention of this legislation. It is the first time in history the Commonwealth government has been prepared to do so. We are amending 68 pieces of legislation under the general law reform bill, and a range of other acts under this bill, in order to provide same-sex couples with the same rights—equal rights—as those which are provided for heterosexual de facto couples.

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

I thank the minister for her response. I want to make it very clear that, unfortunately, because we are not able to mandate private commercial funds to adopt these definitions—I would like to think that most of them will, but we cannot mandate them—and the government and the opposition are now not supporting an amendment to allow people to know, publicly, on the record, which funds do support that definition and which do not, we need to be very careful about how we report the entitlements being handed over today to same-sex couples. I think that this suite of bills is long overdue, and I welcome it. What I would like to have been able to do today is say that all same-sex couples in Australia, regardless of whether they work in the public or private sector, were guaranteed these entitlements. Unfortunately, we are not able to do that.

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

I just make the point that heterosexual de facto couples would not be subject to the same guarantee that you are seeking now. So a minister could not give the same guarantee, as I am advised, in relation to heterosexual de facto couples. I reiterate that the approach we are taking is to seek to ensure that gay and lesbian couples receive the same rights as heterosexual de facto couples in this as in other legislation.

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

The question is that Australian Greens amendment (4) on sheet 5615 amending government amendment (6) be agreed to.

Question put.

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

I move Australian Greens amendment (5) on sheet 5615:

(5)    After proposed item 13, insert:

13B After section 40

Insert:

40A Complying funds must not discriminate in couple definitions

                 Despite any other provision in this Part, a private sector fund is not a complying fund unless, within 60 days of the commencement of Schedule 4 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008:

             (a)    the trust deed by which the entity is constituted adopts the definition of spouse contained in this Act; or

             (b)    to the extent that the trust deed by which the entity is constituted recognises members of the opposite sex as a couple (however defined), the deed also recognises members of the same sex as a couple.

Amendment (5) deals with the same issue that we have just spoken about, which is the fact that there is no guarantee under this bill for same-sex couples to have the same entitlements recognised by private superannuation funds, and this amendment is proposing to define whether a fund is complying based on whether it adopts the definition itself or refers directly to the government’s own act, which, of course, includes the definition because we have just agreed to that.

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

For similar reasons to those which I outlined in relation to section 36A, I indicate that the government is not supporting amendment (5). I have a couple of points about it. There is the retrospectivity issue, which applied in relation to the previous amendment, that I raised with the Senate. I would also make the point that the proposal to make a fund non-complying, particularly given the 60 days of commencement, given that the amendment that the Greens and the opposition supported has actually passed, is an extremely harsh penalty. Senator Hanson-Young may be aware that when a fund is made non-complying all of its assets plus the income for the current year are taxed at the top marginal rate, which is currently 45 per cent. I also indicate that part 5 of the SI(S) Act sets out relevant provisions in relation to noncompliance. Broadly, a fund must knowingly breach a specified provision in the SI(S) Act, and there is a culpability test which the fund must fail. I have also been advised that the practical effect of making a fund non-complying could be that the relevant fund would become insolvent, which is obviously a significant negative policy consequence. I am happy to provide more information to Senator Hanson-Young, if she wishes, about the government’s position, but I indicate that we are opposing this amendment.

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

Thank you, Minister, for the response. I think it is unfortunate that, despite how important this legislation is in ensuring that we go some way to ensuring that same-sex couples are given the same entitlements as opposite-sex couples in de facto relationships, we cannot guarantee this for people who have their superannuation tied up in private funds. I remind the Senate that that is almost 90 per cent of the Australian population.

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

I indicate to the Senate that the opposition will be opposing this amendment.

Question negatived.

The Temporary Chairman:

The question is that government amendment (6) on sheet QH400 be agreed to.

Question agreed to.

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

I move government amendment (7) on sheet QH400:

Schedule 5, page 31 (line 2) to page 32 (line 16), omit the Schedule, substitute:

Schedule 5—Prime Minister and Cabinet amendments

Governor-General Act 1974

1  Subsection 2A(2)

Insert:

marital or couple relationship has the meaning given by section 2B.

2  Subsection 2A(2)

Insert:

spouse has a meaning affected by section 2C.

3  Subsection 2B(2)

After “marital”, insert “or couple”.

Note:   The heading to section 2B is replaced by the heading “Marital or couple relationship”.

4  Subsections 2B(2) and (3)

After “husband or wife” (wherever occurring), insert “or partner”.

5  After paragraph 2B(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

6  At the end of paragraph 2B(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

7  At the end of section 2B

Add:

        (6)    For the purposes of this section, a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

8  Section 2C

After “marital” (wherever occurring), insert “or couple”.

9  Application of amendments of the Governor-General Act 1974

The amendments of the Governor-General Act 1974 made by this Schedule apply in relation to a person who is appointed as Governor-General on or after the commencement of this Schedule.

Government amendment (7) on sheet QH400 omits the previous schedule 5 to the bill and replaces it with a new schedule 5. I will go through the various specific amendments in that context. Items 1, 3 and 8 of schedule 5 will refer to a ‘marital or couple relationship’ rather than ‘couple relationship’. Item 4 will adopt the term ‘husband or wife or partner’. Item 5 will refer to regulations made under the Acts Interpretation Act rather than the Judges’ Pensions Act and items 6 and 7 will refer to a child within the meaning of the Family Law Act rather than a ‘product of a relationship’ definition of a child. I commend this amendment to the Senate.

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

The opposition supports these amendments. Once again these are amendments inspired by the recommendations of the Liberal senators on the inquiry by the Senate Standing Committee on Legal and Constitutional Affairs into the bill. They protect, by recognition, explicitly the status of marriage and they abandon the clinical description of children as products of a relationship. But for the work of those Liberal senators, these amendments would not be being moved this evening, which indicates, as I said earlier, the significance and benefit of the process of committee hearings on which the Senate resolves.

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

I indicate the Australian Greens support for this government amendment.

Question agreed to.

The Temporary Chairman:

Senator Hanson-Young, I assume now that you will not be moving the Australian Greens amendment.

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

I withdraw that amendment.

The Temporary Chairman:

That is 3A to 3J.

Bill, as amended, agreed to, subject to requests.

Bill reported with amendments and requests; report adopted.