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Thursday, 20 September 2007
Page: 263

Senator LUDWIG (8:48 PM) —I rise to speak on the Judges’ Pensions Amendment Bill 2007 and the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. Labor supports the contents of these bills. They largely contain technical amendments to the formula by which the superannuation of former federal judges is payable. Currently, upon the death or retirement of a federal judge a formula operates to reduce a judge’s pension by averaging the rate of surcharge that applies to the judge in each full financial year of his or her service. The Judges’ Pensions Amendment Bill makes four technical amendments to the current scheme. Firstly, it amends the reduction for the years 2003-04 and 2004-05 which, according to the explanatory memorandum, brings the formula into line with the maximum surcharge for those years. Secondly, the bill amends the formula regarding invalidity pensions to take into account the abolition of the surcharge from 1 July 2005. Thirdly, the bill allows that the spouse of a judge, who dies in office, to choose between having the judge’s pension reduced under the formula or a commutation scheme. Fourthly, the bill allows the trustee of the Judges Pension Scheme to draw on an existing special appropriation for the payment of the judges’ surcharge debts to the ATO as they retire.

The Federal Magistrates Amendment (Disability and Death Benefits) Bill sets out to enact a pension scheme for magistrates who are no longer capable, for medical reasons, of doing their job. This will allow magistrates who have served on the bench to retire because of ill health and receive a payment. In effect, it will help to make their position more consistent with other federal judges. Given the difficulty in removing judges on the grounds of poor health, this is a sensible option. It removes the incentive for magistrates to continue on in their position after ill health may make it untenable. In so doing, it will help maintain the exceptionally high standard that currently exists in the Australian federal judiciary.

At the moment, federal magistrates operate under a scheme which is separate from the pension scheme that exists for other judicial officers which comes under the Judges’ Pension Act 1968. The federal magistrates receive a superannuation fund or retirement savings account to which the Commonwealth contributes. This means that if a federal magistrate retires before the age of 65 then they are not eligible to receive a pension. This creates an incentive to continue to work even if illness or disability prevents them from effectively performing their job. The proposed legislation will alter that and allow the magistrate who retires for those reasons to have access to a continued source of income via the judicial pension scheme. Specifically, it will allow a magistrate who retires to, post retirement, request the Attorney-General to certify that the retirement is due to permanent disability or infirmity. This is modelled on the process that occurs for other judges under the Judges’ Pensions Act. A refusal to certify would be appealable to the Administrative Appeals Tribunal. Where the request is granted the magistrate in question would be eligible to receive a pension at 60 per cent of the federal magistrate’s salary until they reach the age of 65. They would continue to be eligible to receive a superannuation contribution from the Commonwealth until that age as well.

Turning to the more troublesome end, if there is a death benefit scheme the bill updates the provisions for magistrates’ death benefits, bringing them closer into line with those of other judges. It will allow lump sums for death benefits to be paid to eligible spouses and eligible children if a magistrate dies before the age of 65. The benefits would be equal to the superannuation contribution that the judge would have received had they lived to that age. Magistrates who retire on the disability pension scheme inserted by this bill would also be eligible for death benefits.

For the remainder of my contribution this evening, I will refer primarily to the Judges’ Pensions Amendment Bill. The comments I have are equally applicable, of course, to both this bill and the federal magistrates bill, but of course the Judges’ Pensions Amendment Bill will serve as a single example. The act, as it currently stands, excludes same-sex de facto couples from its operation. Heterosexual de facto couples are, for the purposes of this act, taken to be bona fide married couples if they (a) have lived together for three years or more as man and wife or (b), in the case of less than three years, the Attorney-General, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person’s husband or wife on a permanent and bona fide domestic basis, regardless of whether or not the person was legally married to that other person.

Same-sex de facto partners of judges are currently completely excluded from this scheme. What does that mean? For a married or de facto heterosexual couple, the current sections 7 and 8 of the Judges’ Pension Act provide that, on the death of the judge or retired judge, the surviving partner is entitled to a payment of 62.5 per cent of the relevant pension in relation to the judge. It is a reasonably standard clause, which exists to ensure that the partner of a judge who has served the judiciary and Australia is not left high and dry upon their death. Unfortunately, as I have already mentioned, it was not drafted to envisage—and it certainly does not encompass—circumstances where judges engage in same-sex de facto relationships. This is not a situation which Labor think is acceptable and, as such, I foreshadow in this speech that we will be moving amendments in the committee stage to ensure that these injustices do not continue.

The amendment is clearly within the objects of the bill before us. The bill’s long title is ‘A Bill for an Act to amend the law in relation to Judges’ pensions, and for related purposes’; therefore, being clearly within the stated objectives, Labor brooks no criticism for moving the amendment per se. It is imperative that the parliament take these measures and start moving these types of amendments, basically because of the government’s intransigence on the issue of discrimination against same-sex couples.

There is no logical reason or rationale for continuing to refuse access to these pensions for same-sex de facto couples. There is a purpose to this focus: heterosexual couples may marry and become spousal partners falling under the definition of this act. It is enough to be said that it is not the place or role of parliament to place legislative prods in this direction, but, following the exclusive definition of marriage in the common law and in the Marriage Act 1968, same-sex couples are left with no option at all.

The transferability of these pensions to a partner of the deceased judge is a recognition of their contribution to judicial life and the immense workloads that these judges undertake during their tenure. The payment is also to ensure that the partners of these judicial officers are not left high and dry in the event of their death. There is no provision in place barring homosexual judges from accessing the judicial pension scheme, and there is no suggestion that a judge who is in a same-sex relationship is any less worthy of receiving a pension as one who is in a heterosexual relationship. The only thing that is barred is transferring the pension to the other partner in the same-sex relationship on the same grounds that are provided for in a heterosexual relationship.

I point out that the issue of whether or not homosexuality should be legal is well and truly settled, and rightly so. It is over a decade since the Keating government passed the Human Rights (Sexual Conduct) Act 1994, which overrode Tasmanian laws outlawing homosexuality. I am not reopening the debate; it is settled. Logically, then, there is no reason why the payment of a pension to a judicial partner after a judge’s death should not be extended to include same-sex de facto partners; yet the legislation as it stands does not allow for this to occur and, to be perfectly frank about this, it is about time for the government to begin the process and the steady march to move with Australian society to extend benefits to persons in de facto same-sex relationships.

The government is well behind on these matters. For more than a decade there has been inaction and no real outcomes with regard to the removal of discrimination against Australians in same-sex relationships at the federal level. The precise dimensions of this discrimination have recently been laid out in the report of the Human Rights and Equal Opportunities Commission Same-sex: same entitlements. That report found a total of 58 pieces of federal legislation which discriminated against same-sex couples, and that was only in the area of financial and work related entitlements.

At this point I would like to add the caveat that in some cases the discrimination may actually be beneficial. Some benefits are reduced where a person is living in a marriage-like situation with a person of the opposite sex, and same-sex de facto relationships do not count for those purposes. So, in those limited cases, the same-sex de facto couple might actually gain a financial advantage out of the discrimination, but, for the most part, same-sex de facto couples are denied the benefits which are provided to married couples.

To remove the discrimination which operates in relation to this act, I will, as I have said, foreshadow an amendment. My colleague in the House of Representatives Nicola Roxon earlier moved a second reading amendment calling on the government to remove discrimination against same-sex couples in this piece of legislation. The government did not support that in the House of Representatives.

This is unfortunate because the government have made comments in the media that they will support the removal of discrimination against same-sex couples. I will take the opportunity of quoting some of their comments. Firstly, a media release from the Attorney-General on 21 June this year, in response to the HREOC report, stated:

In connection with interdependent relationships, including same-sex relationships, the Government will consider making further changes to the relevant legislation on a case-by-case basis.

I also note a statement by the Prime Minister, John Howard, at a doorstop interview on 8 June last year:

I am in favour of removing areas of discrimination and we have and I’m quite happy on a case, by case basis to look at other areas where people believe there’s genuine discrimination …

The case we have before us today is about as clear-cut as it gets. There is a clear benefit that is being denied same-sex couples in a de facto relationship. In respect of this, it is also narrowly cast. The point is in the principle that this bill is one which goes to pensions. As the government would be well aware, in some instances we have not supported these types of amendments in the Senate. This is because they look like tagging or because the costs may be quite large and difficult to ascertain. The costs are an issue not in themselves or alone but when put together with the principle I enunciated earlier, which is that we do not generally accept tagging—that is, finding an amendment to a bill and then using a subsidiary or unrelated amendment such as this. I think the government accepts that we generally stick to that principle, and, of course, it is a reasonable principle to stick to. In this instance, we are on point, we can move the amendment and it is, as I have said, narrowly cast.

We have an example of where this should be remedied—in this instance, High Court Justice Michael Kirby. I invite the government to consider the legislation further and more deeply because of this example. The government determined to act only on a case-by-case basis. Here is one. As Justice Kirby himself has stated in a letter to the Attorney-General, if he were to die today the legislation as it currently stands would deny his partner a judicial pension. Justice Kirby will retire from his judicial career by early 2009. If he were to die before—I stress that we hope and pray that that does not occur—or after his retirement, the person he is in a caring relationship with and with whom he has forged a life for nearly four decades would not receive anything. This is a clear and unambiguous example of how these laws impact on law-abiding Australian citizens. There is no justification. I note again that the Attorney-General has stated that he will look to remove discrimination on a case-by-case basis, and I offer this as a perfect example of a case in which the Attorney-General, or his representative in the Senate, can act.

Given this government’s self-publicised reputation for truth and honesty with the Australian public, I would certainly expect that the government would honour this commitment given by Mr Ruddock and support our foreshadowed amendment. I note that there are many amongst the conservatives who agree with Labor on this position, even if the right wing dominates within their party. I might add that the lunar right, which appears to be slowly taking over their state branches, does not.

Senator Murray —Did you say ‘lunar’ or ‘lunatic’?

Senator LUDWIG —’Lunar’. It is a baying at the moon sort of thing.

Senator Murray —Not ‘lunatic’?

Senator LUDWIG —No. I reserve that for a few others. I say to the members of the government in the Senate who support these types of amendments: do not worry; Labor will be giving you the opportunity to vote and to allow your practical record on the matter of the removal of discrimination against same-sex couples to be put on the public record through this simple example.

Finally, I would like to deal with government criticism that was raised in the Main Committee on another bill, the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. As I understand the comments made by the Attorney-General at that time, the government wants to address all of this discrimination at once, in one package, and it was not appropriate to tackle these issues of discrimination in the manner we are doing it today. In response to this criticism, I point out that the government has had 11 years to remove discriminatory provisions in federal legislation. During that time, state Labor governments have moved forward on the issue—abolishing discriminatory provisions in areas such as superannuation and recognising same-sex de facto relationships, to give two examples.

And let us not forget the case-by-case pledge. Where did that get to? The Attorney-General and the Prime Minister could be described as flip-flopping around on their previous long and deeply held commitment to reform on a case-by-case basis. One minute, when it is convenient, it is case by case; the next it is ‘wait for the package’. It is really concerning that the Liberals cannot be trusted on this issue. Even if you thought you could rely on a Liberal promise in this area, do not forget that there is always the National Party.

Federally, Labor have pledged that, if elected, we will remove discrimination against same-sex couples across all federal legislation, with the exception of the Marriage Act. By way of contrast, this government have been in power for 11 years, the HREOC inquiry has been going on for the last 18 months and the report has been publicly available since June. There surely cannot be too many sitting weeks left—if you believe the Treasurer, at least his first iteration, this is probably the last—before parliament is dissolved and the general election is called. So far, all we have heard from the government is that they will look at legislation ‘on a case-by-case basis’. We have not seen a formal response to the HREOC report. We have no indication of whether the government is planning to act on it and, on the off-chance that they will, when they are going to do so.

The case that Labor are making here is quite simple. We are in favour of these bills. They have our support. It is a minor technical amendment that fixes some inconsistencies in the scheme and brings it into line with the maximum surcharge. Labor are not objecting to the bills per se in the amendments that have been put forward. There is an issue here that does give an opportunity to this government to make some practical changes to benefit an individual’s life. I commend these bills to the Senate.