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Thursday, 20 September 2007
Page: 271


Senator STOTT DESPOJA (9:21 PM) —My remarks tonight deal specifically with the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. Obviously, Senator Murray has pointed out that the Democrats have dealt with this on both Attorney-General’s and superannuation lines. I think you will find the amendments in my name on behalf of the Democrats dealing with this particular legislation reflect exactly the sentiments that have been expressed by Senator Murray on the party’s behalf. I also indicate that we have amendments dealing with the reduction of the age threshold. I also seek leave to incorporate the rest of my remarks in an attempt to facilitate proceedings. I will move my amendments in due time.

Leave granted.

The incorporated speech read as follows—

As the Democrats’ Attorney-General Spokesperson, I rise to speak on the Federal Magistrates Amendment (Disability and Death Benefits) Bill.

The Democrats welcome improvements in the remuneration and entitlements of Federal Magistrates, such improvements being long overdue given the enormous contribution Federal Magistrates make to the federal justice system.

As the Australian Law Council note in their submission to the Senate Legal and Constitutional Affairs Committee who considered the provisions of this Bill in April 2006:

“In a few short years both the jurisdiction and workload of the Court have grown considerably. The volume of civil case filings is very high and the Law Council understands that around 60% of general federal law filings, and around 50% of family law filings, are made in the Court.

Surveys commissioned by the Court appear to establish that it is continuing to provide a very satisfactory service for most of its customers with savings over the comparable cost of litigating in the superior courts”.

So, the Democrats wish to acknowledge publicly their support of the work of the Federal Magistrates and the important restorative justice approaches they are taking in respect of disputes.

In relation to the Bill, new sections 9A, 9B and 9C provide for a Federal Magistrate to be certified as a retired disabled Federal Magistrate, receive an entitlement to a pension and entitlements to certain superannuation contributions. Section 9D provides for death benefits for Federal Magistrates and retired disabled Federal Magistrates.

While the Democrats support this proposal we are rather disappointed that the Howard Government has failed to ensure that such improvements are fair, equitable and appropriate to Federal Magistrates. Specifically, we are disappointed that this initiative is unfair in respect of its treatment of age limitations on entitlements and same sex relationships.

In relation to age limitations Section 6 of the Judges Pensions Act 1968 sets the age threshold for judges of every other federal court at 60 years. Yet, the age threshold for benefits and death benefits under this Bill has been set at 65.

In its submission to the Senate Legal and Constitutional Affairs Committee the Victorian Bar noted that his Bill continues to place Federal Magistrates on an unequal footing with judges of every other federal court, by not including Federal Magistrates under the Judges Pensions Act 1968.

The Democrats propose that the age threshold for benefits should be reduced to 60 which would place Federal Magistrates on equal footing with judges of every other federal Court whose pensions are determined by the Judges Pensions Act 1968. This is an opportunity to be fair to Federal Magistrate.   We believe the reduction of the age threshold for benefits to 60 years would serve to ensure relativity of remuneration within the federal judicial system. Of course, the alternative is simply to include Federal Magistrates in the Judges Pensions Act but I’m sure the Howard Government will find some pithy excuse as to why this shouldn’t happen and we shouldn’t let this opportunity for fairness and equality within the federal justice system to be lost.  

It should come as no surprise to my colleagues that the Democrats are also proposing a second amendment to the legislation in respect of the definition of a spouse. Unlike the major parties, we have for decades advocated and listened to the needs of the GLBTIQ community.   We don’t intend to let them down in respect of this Bill.

Since our inception in 1977, the Australian Democrats have campaigned loudly for allowing same-sex relationships equal status to those in heterosexual relationships. If, Senator Bartlett and my Private Members’ Bill The Same-Sex marriages Bill 2006 were in effect there would be no need to propose this amendment. But that is not to be the case.

The Bill’s denial of benefits to Federal Magistrate’s same sex partner sends the wrong message to the Australian community that discrimination is acceptable in Australia. And quite frankly discrimination is not OK.

More worryingly, the exclusion of same-sex relationships from this Bill sends the wrong message to Federal Magistrates. It is the Federal Magistrates who must sit and judge cases under Commonwealth Anti-Discrimination legislation. What message is the Howard Government trying to send to them? That it’s OK to discriminate against the GLBTIQ community?

As Justice Kenneth Raphael, said in his submission to the Senate Committee:

“To impose such discrimination on a court which has the prime responsibility for dealing with cases under the Commonwealth Anti-Discrimination legislation is ironic.”

I don’t think its too much to ask the Prime Minister to modernise his way of thinking and put a stop once and all to his Government creating new laws that only seek to discriminate against the gay community. The number of old laws on the statute book that discriminate against the gay community is bad enough without the Government adding more.

And it seems many of the Government’s own MPs are growing impatient with the Howard Government’s failure to embrace a modern day definition of relationship that does not centre on spouse. Coalition MPs Malcolm Turnbull, Peter Lindsay and former crocodile farmer Warren Entsch are demanding action.   Mr Entsch is reported in The Australian on 1 June 2007 as saying “he is furious and angry about the lack of action. They keep saying ‘oh we’re looking at it.’ But they’ve been looking at for too long. In my view, not enough has been done.”

This Bill provides the Howard Government with the opportunity to act today to bring about an end to discrimination against same sex relationships. The Howard Government has done it before. In relation to anti terrorism legislation the Government has included same-sex partners within the definition of ‘close family member’ under Anti-Terrorism Act (No.2) 2004.   It’s time, in an election year, that they show decisive leadership on this issue once again. Are they for or against ending same sex discrimination?   If they are for it they will support my proposed amendment.

For these reasons and a number of others, the Democrats will be moving amendments to rectify these deficiencies.