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Monday, 22 September 2008
Page: 8141


Ms LEY (7:41 PM) —I am pleased to speak on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. This is the omnibus bill seeking to implement the removal of those aspects of discrimination identified in the Human Rights and Equal Opportunity Commission’s Same-sex: same entitlements report that were not picked up in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008.

This suite of bills has continued the process of removing discrimination against same-sex couples in Australian laws that was begun by South Australian Liberal MLC the late Murray Hill in 1972. While noting that the opposition have referred the bill to the Senate Standing Committee on Legal and Constitutional Affairs for consideration, we completely support the principles that underpin this suite of legislation. In speaking on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Super-annua-tion) Bill 2008, the member for Sturt noted that the federal platform of the Liberal Party of Australia has for many years ‘condemned narrow prejudice as an enemy of liberalism and commits its members to oppose discrimination based on irrelevant criteria’.

The bill seeks to make amendments to 68 pieces of Commonwealth legislation. Certain key concepts and definitions are common to them. The intention is to treat same-sex couples and their children on the same basis in Commonwealth legislation as heterosexual de facto couples and their children. The principal mechanism for the amendments in this bill as far as de facto relationships are concerned is the Acts Interpretation Act 1901. For the purposes of the Acts Interpretation Act, a person will be a de facto partner of another person, whether of the same or opposite sex, if the person is in a registered relationship with the other person or is in a de facto relationship. A registered relationship is one registered under a prescribed law of a state or territory. A de facto relationship, under the Acts Interpretation Act, exists between two people who are not legally married to each other, are not related by family and have a relationship as a couple living together on a genuine domestic basis. There are a number of criteria upon which the de facto status of the relationship is determined. Examination of these criteria is unnecessary if a relationship is registered under the appropriate state law.

The definition of ‘child’ is amended in a number of pieces of legislation. The formula of ‘product of the relationship’ is used to describe children. This is a description that has attracted criticism both in this place and during the Senate committee hearings on the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. The full definition reads as follows:

… someone is the child of a person if he or she is the product of a relationship the person has or had as a couple with another person (whether of the same sex or a different sex). For this purpose, someone cannot be the product of a relationship unless he or she is the biological child of at least one of the persons in the relationship or was born to a woman in the relationship.

This is an expansion of the legal concept of a natural child of a couple, and it is only right and proper that the matter be considered in detail through the Senate committee process.

Although some people have been complaining that the opposition has been delaying the passage of these bills by reference to the committee, the evidence before the committee has indicated that there are concerns from across the spectrum of all interested parties as to the terminology used in respect of children. Clearly, the reference was appropriate. Further, it is a great stretch to accuse the opposition of using the reference to a committee as a delaying tactic. In fact, this is clearly not the case. The committee will be reporting on 30 September. This is a very expeditious result, given that this bill was only introduced into the House on Wednesday, 3 September. I would particularly like to congratulate opposition Senators Trood, Barnett and Fisher for their work in ensuring that the business before that committee was carried out with such efficiency.

In the Attorney-General’s second reading speech he admitted his awareness of some criticism of the bill’s approach in this area. His response was:

… without it there is a risk that we will not recognise all children in same-sex families. Whatever people’s views are, I am sure they will agree that children should be treated equally wherever they may be in Australia and irrespective of the relationship of their parents.

We in the opposition unreservedly support that principle, and we look forward to the Senate committee’s report on their considerations of the matter.

In relation to stepchildren, the bill expands the definition of ‘stepchild’ to include a child of an opposite-sex or same-sex de facto partner by a previous relationship. The current meaning of stepchild only applies to the child of a husband or wife by a previous union. The bill makes further amendments to remove discrimination against the surviving partner in a same-sex relationship by replacing the term ‘widow or widower’ and instead referring to a ‘surviving spouse or de facto partner’. The bill deals with other family relationships, such as brother, aunt or grandparents, to ensure that family relationships will be recognised in same-sex couple families in the same way they are recognised in opposite-sex couple families.

The opposition notes with concern that amendments to the Migration Act that form a part of this bill seem likely to permit gay marriages contracted overseas to be recognised as marriages for the purposes of couples visas under regulations to that act. This comes in direct contravention of the words of the Attorney-General in his second reading contribution. The policy of both sides of parliament on marriage is very clear. It reflects the widely held view in the community that marriage is between a man and a woman, and it is defined as such in Commonwealth legislation.

The Attorney-General is right when he says that removing discrimination against same-sex couples does not undermine marriage. However, the Attorney-General would seem to be mistaken when he says that this legislation stops short of redefining marriage—at least as far as the Migration Act is concerned. We expect that the Senate committee will deal with this matter, and the opposition certainly reserve their position in relation to any potential amendments that the Senate committee might propose.

Liberalism is a philosophy that celebrates individual freedom and choice. It abhors discrimination. As was said on 4 June in relation to the same-sex superannuation bill, the bills are long overdue—a situation for which both sides of this House must accept responsibility. The opposition welcomes this bill. The opposition supports the principles underpinning this bill. The opposition is eager to end injustice and discrimination against same-sex couples in Australia. However, the opposition strongly support marriage as an institution of special importance to our society and we will ensure that the sincere questions we hold with respect to this bill are fully examined through the Senate committee process.

On behalf of the opposition, therefore, I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House:

(1)   affirms its commitment to the central importance of the institution of marriage to Australian society;

(2)   nevertheless recognises that partners in same-sex relationships ought not to be discriminated against on the basis of their sexuality, and ought to be treated on a similar basis to partners in heterosexual de facto relationships;

(3)   recognises the right of children who live in same-sex households not to be discriminated against; and

(4)   notes that the Opposition has referred the bill to the Senate Legal and Constitutional Affairs Committee for reporting by September 30 with a view to ensuring that, in removing discrimination against people in same-sex relationships:

(a)   the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise;

(b)   there is no unintended recognition of same sex marriage, including through amendments to the Migration Act 1961;

(c)   the rights and status of children are properly protected; and

(d)   the rights and status of people in interdependent relationships other than same-sex relationships are recognised and properly protected”.

I reaffirm the opposition’s support for the bill and I commend the amendment to the House.


The DEPUTY SPEAKER (Hon. DGH Adams)—Is the amendment seconded?


Dr Stone —I second the amendment and reserve my right to speak.