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Wednesday, 4 June 2008
Page: 4509


Mr COMBET (Parliamentary Secretary for Defence Procurement) (6:51 PM) —The fundamental core belief that led me into public life and to my membership of the Australian Labor Party was the need to treat all people as equals—my thorough distaste and abhorrence of discrimination. Freedom from discrimination and a guaranteed equality before the law are some of the fundamental human rights in our society. Article 26 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, states clearly that:

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

That is clear and I agree firmly with it.

The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 before us today holds true to those principles and seeks to remove the form of discrimination currently experienced by same-sex couples and their children. As is the situation for some other members of the House who have spoken in relation to this issue, this discrimination is not simply theoretical from my experience. It is real in the experience of others to whom I am close and I wish to see it ended. The Human Rights and Equal Opportunity Commission last year, following a substantial inquiry, tabled a report in parliament titled Same-sex: same entitlements. The report found that same-sex couples experienced discrimination in a wide range of Commonwealth laws, including superannuation, taxation and social security laws. But more specifically the report identified a number of areas where there was legal and financial discrimination faced by same-sex couples and their children.

I want to run briefly through some of the findings. Others have referred to them, but I will touch upon them, as I think it is important that the House acknowledges the situation that people face. The report found, among other things, that: same-sex couples and their families are denied basic financial and work related entitlements which opposite-sex couples and their families take for granted; same-sex couples are not guaranteed the right to take carers leave to look after a sick partner; same-sex couples have to spend more money on medical expenses than opposite-sex couples to enjoy the Medicare and PBS safety nets; same-sex couples are denied a wide range of tax concessions available to opposite-sex couples; the same-sex partner of a federal government employee is denied access to certain superannuation and workers compensation death benefits available to an opposite-sex partner; and older same-sex couples will generally pay more than opposite-sex couples when entering aged-care facilities.

The report also concluded that it was not just the couples who were facing discrimination, as we have heard, but also their children. It is estimated that approximately 20 per cent of lesbian couples and five per cent of gay couples are raising children. Inevitably the financial disadvantages faced by their parents will impact upon those children. Article 3(1) of the Convention on the Rights of the Child, to which Australia again is a signatory, states clearly:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

I am far from an international lawyer, I have to concede, but it seems rather evident to me that causing a family financial disadvantage solely on the basis of the parents’ sexuality would not fulfil the test of the Convention on the Rights of the Child, to which Australia is a signatory. It is important, therefore, that we remember the impact upon the children of same-sex couples when we are considering the bill before us. In summary, the Same-sex: same entitlements report found that approximately 20,000 Australian couples and their children were experiencing discrimination and a lack of equality for no other reason than their parents’ sexuality. That is a disgraceful situation that must be remedied, and the bill before us today marks the first stage of the government’s commitment to address the inequality for same-sex couples that exists under a wide range of laws.

The bill, in this instance, deals with the issue of superannuation benefits. These are extremely important for any individual. They provide security for them and their families during retirement and are often an individual’s largest asset after their house. When a person dies there is a reasonable expectation that their benefits will be passed on to their families. However, this is not always the case for same-sex couples. In chapter 13 of its report, HREOC found in relation to the current superannuation benefits, and it is worth quoting at modest length:

The same-sex partner of a member of a private superannuation fund may receive superannuation death benefits if he or she can establish an ‘interdependency relationship’ with, or financial dependence on, the deceased member of the fund. However, the ‘interdependency’ and financial dependence categories impose more onerous qualifying criteria than for an opposite-sex de facto couple in the same position.

The same-sex partner of a federal government public servant will not get any direct access to superannuation death benefits, unless his or her partner joined the public service after 1 July 2005. This is because a same-sex partner does not qualify as a ‘spouse’ under the relevant legislation.

HREOC went on to observe the following:

Further, a same-sex partner may not get the same tax benefits for superannuation contributions and earnings as an opposite-sex partner (in either private or federal government funds). Some tax concessions flow onto ‘dependants’ who inherit superannuation death benefits and this may include a same-sex partner in some circumstances. However, other tax concessions are only available to a ‘spouse’. The definition of ‘spouse’ under the relevant tax legislation and federal government superannuation schemes excludes a same-sex partner.

Finally, the child of a same-sex couple may not be entitled to the same superannuation benefits and tax concessions as a child of an opposite-sex couple. This is because of the definition of ‘child’ in the relevant legislation.

These failures and these discriminatory definitions must be remedied, and the bill before us today will remedy these situations and go to the heart of how we define a partner or a child. The effect of the bill will be to ensure that the relevant definitions apply equally to both same-sex and opposite-sex couples. To achieve this, the bill will expand on the definition of a de facto couple, creating the new concept of a couple relationship which will include same-sex couples. The Attorney-General also indicated in his speech introducing the bill that his department will apply lessons learnt from the legislative drafting of these provisions and definitions for a future reform program in this area.

I am pleased to say that the bill also allows for the equal recognition of children who are, as we heard a moment ago, the product of same-sex and opposite-sex relationships. For the purposes of the bill a child will be defined as the product of a couple relationship where one partner is linked biologically to the child or where one partner is the birth mother of the child. A further benefit of such a definition will be a solution to the problems arising from some surrogacy arrangements, where at times the child of an opposite-sex relationship may fall outside of the current definitions. The changes in these definitions will finally eliminate the discrimination felt by these Australians for so long. A lot of effort has gone into the wording and analysis of the wording in the construction of the bill, in my understanding, and I think some of the concerns that have been expressed by some of the members opposite do not properly reflect the fact that the wording is quite appropriate.

The bill will also amend the Superannuation Industry (Supervision) Act 1993, which established the superannuation regulatory framework for regulated super funds. This will allow all super funds to make allowance for same-sex couples and their children in the same way that they will now be provided for under the Commonwealth schemes. I join the Attorney-General in encouraging all superannuation funds to make this provision.

It should also be noted, particularly in view of the amendment that has been proposed by those opposite, that there are very real and important reasons for this bill to be passed by the parliament as soon as is possible. I do not think these were necessarily addressed by the brief submission made by the member for Wentworth. As soon as this bill is passed the benefits and entitlements that would be enacted will become available. It is to be hoped that the opposition will act with credit in this regard to facilitate the rapid passage of the legislation. I have not heard an argument, at least in the debate, that would satisfy me that it is appropriate to adopt the method of analysis and potential delay that is suggested in the opposition’s proposed amendment.

Until the bill becomes legislation we will have the situation where people in the Public Service of our nation are denied the benefits they deserve for no better reason than old-fashioned and outdated discrimination. The bill is about providing for benefits and entitlements for all Australian families on an equal basis. It is about providing human rights in a modern Australia by removing discrimination grounded solely on an individual’s sexuality. I would like to congratulate the Attorney-General and all those involved in bringing forward this bill. I would also like to congratulate HREOC for the excellent report they produced and which has obviously had a significant influence on the construction of the legislation. I would also like to congratulate all the activists in the community who for many years have been fighting these forms of discrimination. I hope that they take some encouragement that this government—the Rudd Labor government—has got the courage and commitment to address this form of unfair, unjustified and abhorrent discrimination.