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Thursday, 12 August 2004
Page: 26566


Senator GREIG (5:09 PM) —I move:

(3) Schedule 1, page 3 (after line 8), after item 1, insert:

1C After section 6

Insert:

6A Acceptance of referral of State or Territory legislative authority

(1) The object of this section is to make provision in relation to unmarried couples regardless of sex, variously referred to in State or Territory law as de facto relationships, domestic partnerships or significant personal relationships.

(2) Subject to subsection (6), this Act extends to:

(a) any State in relation to which a Proclamation under subsection (3) is in force; and

(b) any Territory in relation to which a Proclamation under subsection (4) is in force.

(3) Where:

(a) the Parliament of a State refers to the Parliament of the Commonwealth the matter set out in subsection (1); or

(b) a State adopts this Act;

the Governor-General may, by Proclamation, declare that this Act extends to that State.

(4) The Governor-General may, by Proclamation, declare that this Act extends to a Territory.

(5) A Proclamation under subsection (3) or (4) may be expressed to come into operation on a date fixed by the Proclamation.

(6) A Proclamation under subsection (3) in relation to a State remains in force only for so long as there is in force:

(a) an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth the matter referred to in paragraph (3)(a); or

(b) a law of the State adopting this Act.

This amendment deals with the relationship between the Commonwealth and the states. The amendment aims to remove an anomaly of law that continues to cause hardship for many separating de facto couples across Australia, not only those who happen to be in same-sex relationships. The amendment will put in place the necessary instruments to initiate the process of referral of state powers regarding de facto couples to the Commonwealth. It indicates the Commonwealth's readiness for that referral and represents the first step required to facilitate its occurrence.

Throughout the course of the debate on marriage we have heard that the granting of de facto recognition to same-sex couples would remove all discrimination in law by providing legal equality to those relationships on a par with marriage. The argument has been used as justification as to why access to marriage is not necessary for same-sex couples, yet we know that this is currently not the case. De facto couples continue to experience different treatment from married couples in a number of areas of law, including immigration, superannuation and access to the Family Court. In instances where one de facto partner lives overseas, couples under the interdependency category, including same-sex couples, must reside together for a period of 12 months prior to the issuing of a visa. This condition places a financially and logistically onerous requirement on same-sex and de facto couples that is not imposed on married couples or those intending to marry; rather, couples intending to marry must simply be engaged and intending to marry for the overseas partner to be granted a visa without any prior co-residency requirement. It is also true that heterosexual de facto couples are subject to the same restriction as same-sex interdependent couples, but at least heterosexual couples have the option to marry if they choose.

On behalf of the Gay and Lesbian Immigration Task Force, I wrote to the Minister for Immigration and Multicultural and Indigenous Affairs, Senator Vanstone, in mid June to request that the government consider extending the prospective marriage visa to interdependent same-sex and de facto heterosexual partners seeking to live together in Australia. As yet there has been no response from the minister. Additionally, the very process of recognising de facto relationships differs from married couples in that married couples need only provide a certificate but de facto couples must demonstrate that they fulfil a whole range of criteria. While we recognise the significance and the importance of extending de facto recognition to same-sex couples, and we will continue our decade long campaign to achieve that goal, we still do not regard it as full equality. That is why we advocate for civil marriage. It is also why we advocate for a new system of civil partnership registration, as I discussed in amendment (1). If de facto couples were able to register their relationship, they would have automatic proof of that relationship that is on a par with married couples. These examples provide a clear demonstration of the way in which de facto relationships still cannot access a full range of automatic benefits and entitlements accorded to those who are married. There are also the issues in the Family Court upon separation.

The Prime Minister has made a great deal of his support for families and ensured the best possible outcomes for couples and their children while they are together and while they are separating but, when it comes to same-sex families, and to a lesser extent de facto couples, the Prime Minister has made it clear they are not deserving of the same benefits and support while they are together or while they are separating. Under the powers of the Family Law Act, the benefits for separating married couples of access to a single court for child custody issues, property and financial settlements are clear: a single process, a single court and a uniform national approach to deal with the difficulties that can arise for some separating couples during that period. Where de facto couples are concerned, however, this is not the case. They continue to operate under a dual system. Referral of child custody issues has been accepted by the Commonwealth, but property and financial matters have not and so still must be addressed in state Supreme courts. This is not only more time consuming but also more expensive. The significant stumbling block is the Commonwealth's refusal to accept a referral of power that includes same-sex couples recognised under state or territory law as de facto relationships, domestic partnerships or significant personal relationships.

While introducing into the New South Wales parliament the Commonwealth Powers (De Facto Relationships) Bill, the parliamentary secretary said the referral of power to the Commonwealth:

... in relation to property and other financial resources on the breakdown of a de facto relationship ... has been discussed in the Standing Committee of Attorneys-General for some time ...

He went on to say:

Under the present regime, de facto couples in different States may have their property treated differently for no good reason. Even if States intend to enact and maintain uniform legislation, process delays can result in legislative anomalies. Such an approach would be highly complex, time consuming and impracticable. Success would in any event require a high degree of continuing co-ordination to ensure all necessary amendments to Commonwealth and State legislation were from time to time effected. These difficulties would not arise if States were simply to refer power to the Commonwealth.

I have seen a press release from Mr Rob Hulls, the Attorney-General of the state of Victoria, accusing the Commonwealth of being very homophobic by not accepting the powers as to same-sex couples when that state referred its powers to the Commonwealth in these areas. It is clear that state Labor governments want this to happen and they have condemned the Commonwealth for not allowing it to happen, so I consider this amendment to be a litmus test for Labor. Here is the very opportunity to enact what your state Labor colleagues have called for. Indeed it brings about the de facto recognition which you claim to support. The amendment goes to the referral of powers: it is about allowing that push-up to the Commonwealth for federal oversight of this area but in a way which deals with the de facto relationships of both heterosexual and same-sex partners.