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Monday, 13 October 2003
Page: 21236


Mr DANBY (6:29 PM) —Amendments (5), (6), (7) and (12) to the Superannuation (Government Co-contribution for Low Income Earners) Bill 2003 go to the discriminatory nature of the way this government treats same-sex couples. As the member for Grayndler quite rightly pointed out, superannuation ought to be universal. The fact that same-sex couples are not able to pass on their superannuation—as all other people are—to their partners in the event of death is, in my view, discriminatory. It is this discrimination that these amendments moved by the Labor Party focus on.

As the members for Grayndler and Sydney have said, the legislation we have before us is a perfect opportunity to make sure that both the House of Representatives and the Senate pass these amendments which would correct this ridiculous discrimination that is more suited to the 1950s than to the 21st century. But we have this cabal of Australian Democrats working, as they did with the GST, with the government and sabotaging a piece of legislation which they have supported and spoken in favour of for a decade. I find their attitudes on this wholly extraordinary. I know that Senators Greig and Stott Despoja will, as the member for Grayndler said, cross the floor and vote with the opposition on this, but that is, frankly, not good enough. The Australian Democrats have a policy which binds them all to vote for the essence of the four amendments which the government wants us to vote against, and the Democrats are not going to do that. They are going to vote for the government's bill.

There are other areas of discrimination against same-sex couples that I want to highlight to show that this is an issue that is of wider concern. One area was recently brought to my attention by a constituent, Sarah—not her real name, of course. She has been through a very difficult and acrimonious break-up, including a Supreme Court case dealing with dividing the couple's assets. Soon after this was finished, she received a very large capital gains tax bill from the Australian Taxation Office. She consulted the Income Tax Assessment Act 1997—an act which, thanks to the former Labor government's taxation law improvement program, seems to make taxation law easier for people to understand. It is a program which I understand is coming to a grinding halt under this government. The relevant provision of the Income Tax Assessment Act, section 126-5, quite reasonably suggested that where property is transferred because of a marriage or de facto relationship breaking down, the transferor does not get hit with a capital gains tax bill. Labor has always supported this provision and will continue to support it. However, this section applies only if the capital gains tax event involves the person's spouse or a former spouse. The Victorian government has changed the law to allow for recognition of same-sex couples on the same basis as de facto opposite sex relationships. This allows same-sex couples to be treated the same as de facto opposite sex couples in all areas of Victorian law, including the breakdown of relationships and the dividing of property.

Here again is an example of why these amendments need to be passed. We have continuing discrimination, not just with superannuation but in this example of capital gains tax, which is a federal tax. The federal definition of `de facto' is the one that is relevant in Sarah's case. Unfortunately, this government's 1950s attitudes prevail. In section 995-1 of the Income Tax Assessment Act, the definition of `spouse' includes de facto spouses. However, `de facto' is defined as `a relationship between two persons who, although not legally married to each other, live with each other on a bona fide basis as husband and wife'. The ATO noted that there is in the definition no requirement to be legally married according to laws of Australia or another nation; however, the definition states that the person must live with a person on a genuine domestic basis as the person's husband or wife. The terms `husband' and `wife' are not defined in the tax legislation; therefore the ordinary meaning of the term is utilised.

In the landmark same-sex discrimination case of Gregory Brown v. Commissioner for Superannuation 1995, the Administrative Appeals Tribunal stated:

For whatever other changes the words, `husband' and `wife', may have undergone over the years they retain, in our opinion, their complementary gender connotations.

(Extension of time granted) A wife, according to this definition of the Administrative Appeals Tribunal, is the female partner of a marital relationship and a husband is the male partner. The result is that, even if a state court makes a property order in regard to a same-sex de facto couple or if a court defines `de facto couple' to include same-sex couples, rollover relief will not be available, as the property is not transferred to the person's spouse as defined in the Income Tax Assessment Act. This definition of `spouse' has been used in a number of other areas where the definition of `spouse' is relevant to entitlement. For example, even though a same-sex couple live together, the taxpayer did not derive any income and was financially supported by the taxpayer, a superannuation spouse contribution offset was not available as the same-sex couple could not meet the definition of spouse—which is what the amendment before this House deals with.

The payment of first child tax offset—the baby bonus—could not be transferred to a member of a same-sex couple, as the person could not satisfy the definition of `spouse'. The Income Tax Assessment Act 1997 allows the payment to be transferred to a spouse in certain circumstances. I think that this situation is completely unfair and discriminatory. I draw the attention of the House to my question on notice No. 2383 to the Attorney-General where I have asked:

Is the government considering which other Commonwealth laws and payments may be affected by the decision of the UN Human Rights Commission? If so, is he able to say which laws and payments may be affected? Is he aware of the statement by the Prime Minister of 25 August 2001 to the effect that he is opposed to discrimination on the basis of sexual preference; and will he introduce legislation to ensure that Australia complies with international law in respect to these matters?

I conclude by echoing the claims of the member for Grayndler and the member for Sydney that this is a lost opportunity. It could not be truer that this Democrat-government opposition to these amendments is a vote for prejudice. There is no other way of describing the majority position if we the parliament vote against these amendments. By not amending this legislation we are discriminating against people who are simply trying to pass on their retirement incomes to a person with whom they are living in a loving and longterm relationship. This is not the kind of Australia that I believe is fitting for the 21st century. These amendments should be passed, along with the bill.


The DEPUTY SPEAKER (Mr Lindsay)—The question is that the amendments be disagreed to. There being more than one voice calling for a division, in accordance with standing order 193 the division is deferred until after 8 p.m.

Debate adjourned.