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Tuesday, 23 September 2008
Page: 8306

Mrs BRONWYN BISHOP (8:07 PM) —I rise to speak on this issue for the second time, in the sense that I have spoken on one of the companion bills in the area of same-sex relationships. There are some important points that need to be made about the attitude that the coalition took when in government to the need to remedy those areas of discrimination that needed to be dealt with, in particular with regard to financial aspects, and about dealing with the shift that this government has brought to the whole area.

When the coalition were in government we took the attitude that, where there was a need to remedy injustices, there was a need to set a standard by which one could make an analogy in order to legislate in a fair and just way. The coalition took a very strong stand that, were we to recognise same-sex relationships, it should be done on the same basis that we would recognise interdependent relationships. In his second reading speech on this bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, the minister said: ‘The bill does not recognise interdependent relationships.’ We took the attitude that, where there were, for instance, a brother and a sister who were financially dependent upon one another, there ought to be all sorts of alterations to the law that would allow superannuation to pass from one to the other, for instance, and many other issues that related to financial security that were equally sought by people in a same-sex relationship. The test that we applied was one of financial dependency, and it completely ignored the question of any sexual relationship. It was one that related to the financial interdependency of the relationship.

De facto relationships, which are acknowledged already in so many pieces of legislation, have always been determined on the basis of being ‘marriage-like’—in other words, a man and a woman living together in a relationship similar to that of a marriage. The current Prime Minister, Mr Rudd, and the current opposition made the firm statement that we were both committed to the sanctity of marriage and that marriage was to be held up above and beyond the concepts of de facto or same-sex relationships. There was an undertaking given by the Prime Minister of the day that marriage was in a privileged—or discriminatory—position.

I unashamedly believe that there is a need to discriminate in favour of marriage as the basis of the formation of family relationships within our community. That is not to say that there are not children who are born into very stable de facto relationships—indeed, if memory serves me correctly, about a third of children in this country are born into de facto relationships outside marriage. Nonetheless, both sides of this House have upheld marriage as the preferred basis for the establishment of the family unit and therefore have upheld discrimination in favour of it. Indeed, if I recall, we passed legislation that inserted into the Marriage Act that only a man and a woman could be married.

Accordingly, when I looked at this legislation, and at the 68 acts that are to be amended, I was somewhat shocked to find that, in the area of migration law, it is proposed by the government that this government will recognise marriages between same-sex couples that have been performed overseas. They will be recognised for the purpose of those people migrating to this country. It is not necessary for that amendment to be made in order for same-sex couples who are dependent on each other to obtain a visa and come to this country as migrants. So this is a deliberate act by this government to go against its undertaking that marriage would remain sacrosanct. Acknowledging overseas same-sex marriages is the thin end of the wedge to having them recognised in this country.

Because of the complexity of this package of bills, and because of the sorts of woolly words that are used by so many people who speak about it, we never actually get to the substance of what is being done to the fibre of our society by this package of bills. When I spoke previously, I pointed out the way in which the legislation relating to the Family Law Act in fact recognises a form of polygamy, which we are opposed to in this country. Under that act, if it goes ahead unamended—that means that the government does not accept the amendment that we are proposing—it will mean that a married couple and a spouse who leaves that marriage and sets up a de facto relationship, be it heterosexual or same-sex, will have the same rights before the Family Court. In other words, it recognises more than one spouse at a time—and there is no limit on the number of spouses you can have. There has been a move in this country by certain people within the Islamic faith that they would like to see polygamy recognised. We have staunchly opposed that, and ostensibly the government is opposed to it. And yet in its own legislation it proposes a situation that would allow the court to recognise a person who is married and a person who is in a de facto relationship, be it heterosexual or same-sex, having equal status before the court. That is polygamy. The amendment that we are proposing in the Senate will remedy that and will prevent that from being the case. It will be a test of the government to see whether or not it will do that.

Now I turn also to the Veterans’ Entitlements Act. Coming into this House soon will be the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Bill 2008. There is not a mention in the title of veterans’ affairs—not a single, solitary mention. And yet in schedule 2, called ‘Partner service pension’, the bill implements the budget measure that will remove a spouse service pension where the husband and wife are separated for 12 months. The spouse will automatically lose their pension. Where the veteran sets up in a de facto relationship, the spouse’s pension will automatically end. This was meant to save the government $77 million over four years. That is read down to $33.9 million because they estimate that those people will in fact move onto other forms of social security.

The point I made very strongly when I was shadow minister for veterans’ affairs was that we on this side believe in entitlements for veterans that are not social security. They are distinct. Indeed, they are the result of a contract between us and a veteran, who is prepared to serve their country and to lay down their life for the country, to be entitled to certain things, in that we promised to look after them for the rest of their life.

The government over there, and Mr Rudd in particular, promised veterans that they would never lessen their entitlements. And yet in the budget papers in two instances he did. He made the age for a partner service pension rise from 50 years to 58.5 years for a woman and 60 years for a man. In other words, in a single step, the entitlement at 50 years is moved up to 58.5. When criticised, the minister gives two responses. He says, firstly, ‘Not too many people will be covered or affected by this, so it doesn’t matter.’ Sorry, it does. One person who is affected matters. Secondly, he says, ‘Well, that brings it in line with social security.’ In other words, entitlements are being morphed into social security payments. There are many on that side of the House and within the bureaucracy who would like to see Veterans’ Affairs as a department disappear and be merged into social welfare.

We have made a strong commitment on this side. My commitment as shadow minister was very firm, and my commitment as the member for Mackellar remains very firm. Our commitment is to see that the department services veterans, that the term ‘veteran’ is to be honoured and revered, not to be disparaged, and that the entitlements that flow should continue to do so.

Now for the changes in this part of the bill that is going to come to us soon. It will enact that a spouse who is separated for 12 months or where the veteran moves into a de facto relationship will lose their pension, but it goes a bit further. It reads:

Part 3—Amendments commencing on the same-sex start day

Veterans’ Entitlements Act 1986

8 Paragraph 38(2AA)(a)

Omit “marriage-like”, substitute “de facto”.

Item 9 says:

Omit “when this subsection commenced”, substitute “on the same-sex start day”.

And on it goes. ‘Same-sex start day’ means:

… the day on which Schedule 15 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008

the bill we are debating now—


That is 1 July 2009. What does this mean? What does it translate into?

Suppose we have a husband and wife. Suppose they have been married for 30 years. Suppose the veteran has had a very troubled life, with post-traumatic stress disorder or whatever it is. Suppose they separate. They are perfectly happy to live separately but to maintain their marriage relationship. After 12 months, the spouse will lose all entitlement. I have a case of someone who has written to me to say that she is 61½ years old—she is not entitled to a social security pension—she has the obligations of a mortgage payment and she lives alone. She still has an involvement in the care of her husband; they just cannot live together. No, it is not an illness related separation; it is just one that cannot be sustained. But she will lose her entitlement.

Then we take another example. Suppose we have a veteran and spouse living together. Suddenly, for whatever reason, the veteran, who in this case happens to be male, moves into a same-sex relationship. The wife, to whom he is still married, will immediately lose her pension, and the same-sex partner will be entitled to apply for her pension. Is that what veterans expected? Is that what they thought protecting their entitlements meant? I think not.

It is the small print in all of this legislation that makes the difference. The difference in the approach that the coalition had when we were in government was that we made the analogy between interdependent couples, who have on their side the right to be entitled, but your second reading speech says the bill does not recognise interdependent relationships. We made that analogous with same-sex couples so that the question of sexual relations was not relevant to the financial justice that could be received. But, because of the way in which, in the definition of de facto, the sexual relationship becomes part of the definition, you have totally changed the ground—and yet nobody is prepared to talk about it. It is woolly words. It is all about: ‘There has to be fairness and equity.’ They are words that are full of emotional content, but when we seek to dig down to find out how it translates we see the problem with the legislation.

When the Prime Minister, Mr Rudd, said that marriage was sacrosanct and he wanted to protect it as the primary institution of the establishment of the family unit, he knew, when he was introducing this legislation, that what flows from the consequences of this legislation is totally at odds with his statements about upholding the integrity of marriage. Those who say that this legislation does not change or interfere with the Marriage Act are being less than honest, because it is the consequences of what flow that undermine that institution. On two counts, as I have said here tonight, this is occurring. Firstly, the changes to the Family Law Act will mean that we do have, de facto, polygamy—unless the government accepts our amendment with regard to the definitional clause. Secondly, with regard to veterans, we are going to see the situation where the partner of a veteran, be she a woman, can lose her entitlement and it can be taken up by someone in a same-sex relationship. Is that what veterans think this government has in line for them? I think not.

So when we talk about fairness and equity, I think it is also fair to consider the situation of people who enter into a marriage. And bear in mind the distinction between marriage and any other form of relationship: marriage is a public commitment—made in public with witnesses. A document is issued which proves that relationship is established. The production of that marriage certificate is evidence that the relationship exists. Any other relationship—any de facto relationship—is dependent upon an interpretation of a set of criteria, set out in these various pieces of legislation, which are not conclusive. They are to be considered by a judge making a decision. But he may consider other things, and it does not say which issue is more important than another. So it is a subjective judgement. And yet this government is prepared to put on the same footing a public commitment—witnessed, evidenced by a certificate—and a set of criteria which a court may have regard to. They are two entirely separate things. But, by doing this, you are undermining the commitment that the Prime Minister gave and agreed with the coalition: that marriage is sacrosanct and that marriage is to be discriminated in favour of.

That does not mean to say that there is not justice and fairness for other people in other relationships; it just means that we draw a line in the sand and say, ‘This is the basis of our society; this is the basis of the formation of family.’ To have these bills undermine that—a commitment to which has become a statement of falsity on the part of the government but on which the opposition is standing firm—would be to do a sincere injustice to people who enter into a marriage relationship and, in good faith, think that their rights will be protected, only to find that, after they have been in that relationship, the government of the day introduces legislation which undermines that primacy position. I would sincerely say to the government, ‘Pay heed when the Senate committee’s inquiry is handed down on 8 October.’ There will no doubt be competing findings from the government and opposition members. But I would say to the government: ‘Heed the evidence that is given. Much of it is very compelling. And give credence to the fact that there are those who simply say that this legislation has not had sufficient airing and that the public is being deceived by the manner in which you are bringing this suite of legislation into the parliament.’