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Thursday, 20 September 2007
Page: 273


Senator JOHNSTON (Minister for Justice and Customs) (9:22 PM) —I thank senators for their contributions to the debate on the Judges’ Pensions Amendment Bill 2007 and the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2007. The government acknowledges the significant contribution judges and federal magistrates make to an efficient federal civil justice system and it is committed to ensuring that they have adequate and appropriate terms and conditions of service. The Judges’ Pensions Amendment Bill 2007 is intended to rectify technical deficiencies in the Judges’ Pensions Act 1968 relating to the application of the superannuation surcharge to federal judges appointed between 7 December 1997 and 30 June 2005.


Senator Hogg —Incorporate it.


Senator JOHNSTON —This may not be important to some members on the other side but I am sure it is important to the judges and the magistrates. The main object of the bill is to pass on the reductions in the top surcharge rate of 2003-04 and 2004-05 and to give judges an option to commute a portion of their pensions to pay for surcharge debts.

The Federal Magistrates (Disability and Death Benefits) Bill 2007 will provide federal magistrates and their dependants with improved financial protection in the event of serious disability or death. It is the government’s view that the public interest is served by ensuring that federal magistrates with disabilities which prevent them from performing their duties retire with adequate financial provision. Currently a federal magistrate whose performance is significantly impaired for medical reasons might nonetheless be unwilling to resign. This is particularly important where federal magistrates have tenure to age 70 and can be removed only on the grounds of proven misbehaviour or incapacity. If the performance of a federal magistrate is significantly impaired for medical reasons, it is desirable that a lack of adequate disability provision not be a barrier to the magistrate’s willingness to resign.

I want to briefly talk about the principal issue surrounding this bill, and that is the issue, of course, raised by Senator Murray and adverted to and raised in the speech by Senator Ludwig. The issue of same-sex entitlements is very emotive. Can I say that the emotion does to some greater or lesser extent cloud the otherwise strong adherence, particularly of Senator Murray, to matters of good government.

I want to say a few things about this from the perspective of what it will mean and the significance of a movement to the recognition of same-sex entitlements. The government is considering the issue of same-sex entitlements in relation to the Commonwealth defined benefits superannuation schemes generally. As stated by the Attorney-General recently in the context of the Federal Magistrates (Disability and Death Benefits) Bill, it is not appropriate to deal with judicial officers—and I would have thought the opposition would accept this—in isolation from other recipients of Commonwealth defined benefits such as returned servicemen, public servants and parliamentarians. In short, people, particularly the likely beneficiaries of broad amendments, will say: ‘What about us? It’s all very well to give the judges and magistrates same-sex entitlements; what about us?’ In terms of a case-by-case basis, this is something that we need to consider from the perspective of the Australian Defence Force, 55,000 service personnel plus about 20,000 or 30,000 civilian employees; diplomatic officers and officers generally; agencies; appointees; and, of course, parliamentarians.


Senator Murray —You voted against that today too.


Senator JOHNSTON —I know this is emotional for Senator Murray, but I would like him to hear me out because I want to point out why the government is at the point it is at now. It is frustrating, I know. Rome was not built in a day, and it would be lovely if we could just write cheque after cheque and satisfy every emotional requirement pursuant to people who seek to be a beneficiary under the superannuation schemes of the Commonwealth. But, firstly, in terms of each of the matters before the Commonwealth on a same-sex basis, there are vastly different budgetary considerations from department to department. There is an impact.

I note that Senator Murray rolls his eyes when I say that, but this is a government that now has the capacity to satisfy the needs of same-sex relationships because it has been considerate of budget considerations, because it has minded the budget. The point is: we do not just write cheques on each bill because we get a feel-good out of it. What we do is bring into this place good policy that has equity across the board. That is something I would have thought that Senator Murray would relate to. Why would judges’ partners be any better off than a sergeant’s same-sex partner? Why would that be the case, Senator Murray? It would be because you want to satisfy your emotional commitment on a case-by-case basis. The government is saying that we need to analyse each section of the community—I will go further so that you understand what the problems are here.


Senator Murray —I raise a point of order, Mr Acting Deputy President. The minister is misleading the Senate, and I would appreciate it if he addressed that matter. Perhaps he does not realise that this very day we moved an amendment exactly of this kind to the Defence Force Retirement and Death Benefits Act scheme, so we did not leave out the sergeants, and he is misleading the Senate.


The ACTING DEPUTY PRESIDENT (Senator Watson)—Unfortunately, Senator Murray, there is no point of order.


Senator JOHNSTON —There is no point of order; of course, there is not. Let us look at it from the perspective of the fact that we are talking about superannuation. There is no same-sex marriage in Australia. I hope Senator Murray would agree with that. We have a common-law relationship or we have a partnership formed in the civil law.


Senator Murray interjecting—


Senator JOHNSTON —Senator Murray does not want to understand what I am talking about, because these are deep legal principles that you do not just go writing cheques for on an emotional whim. Now let us talk about this. These relationships actually produce children, and Senator Murray might be surprised to learn that they could be categorised as dependants. They could be the subject of the sort of amendments that he is talking about. This refers not just to Justice Kirby’s partner but also to children. You bring in a whole host of—


Senator George Campbell —So what?


Senator JOHNSTON —I love it that Senator George Campbell says: so what? I am talking about the rights of the child, Senator Campbell. There is a United Nations convention that you obviously do not even know about. You just disclose your absolute gross ignorance—from someone who has served so long in this place. Let us talk about the human rights and equity issues flowing from this. Here we have a group of senators who want to start writing cheques bill by bill and case by case. What I am talking about is having an overall, well-considered policy that deals with this inequity. To do it one at a time, case by case and write the sort of cheques that Senator Murray and obviously Senator Ludwig would have us write is to discriminate against those who are not the beneficiaries of this bill. So the learned senators on the crossbenches are saying that two wrongs will make a right. I want to introduce the ingredient of family law—property settlements—into this debate. Senator Murray has not even thought about that, because superannuation will be the subject of—


Senator Ludwig —The states referenced you the power and you haven’t picked it up, quite frankly.


Senator JOHNSTON —That is right: the states have to reference the power, and you need to be married. Of course these are things that the Labor Party would make up as it goes along in an emotive, unconsidered, not thought through, half-baked, half-understood way. We have a whole host of legal principles that need to be considered if we are going to do the job properly. That is the fundamental issue. Of course these are things that, when you pander to sectional interests without actually considering good government, you end up making errors on. I should not have to stand here—and I am a bit embarrassed that I do—and mention these things to Senator Murray.

Superannuation is a fundamental ingredient of day-to-day life in Australia. The beneficiaries of that are the essence of what we need to explore on an agency-by-agency, employee-by-employee basis so that we get the actuarial mix correct so that we achieve an equitable assessment of how same-sex relationships are going to be resolved in a way that is transparent and fair across all agencies. All agencies are different, and that is the essence of a case-by-case consideration. Having said that, in conclusion, judges are entitled to receive the benefit of the lower maximum rates of surcharge, through this bill, which apply to other high-income earners in 2003-04 and 2004-05. Since other Commonwealth defined benefit schemes already offer their members a commutation opinion, this is simply to bring the judges’ scheme into line.

The Judges’ Pensions Amendment Bill will address judges’ concerns about the application of the surcharge. It will give the benefit of the lower maximum rates and the flexibility to make partial payments of their surcharge debts before they retire. The additional entitlements provided to federal magistrates under the Federal Magistrates Amendment (Disability and Death Benefits) Bill will assist in both ensuring the continued high calibre of appointees and ensuring that federal magistrates can focus on their important duties without being distracted by concerns over the adequacy of protection available to them and their dependants in the sad event of disability or death. I commend these bills to the Senate.

Bills read a second time.