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Tuesday, 14 October 2008
Page: 78


Senator HUMPHRIES (9:28 PM) —The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which is before us tonight, seeks to provide equality of treatment in relation to superannuation benefits for the dependents of those who have made the choice to enter into a same-sex relationship. Of course, such as decision is a matter of choice. It is a choice that has been made by many thousands of Australians. Aside from their sexuality, there are no other common characteristics of people in same-sex relationships. They come from all walks of life, all social strata, all varieties of ethnicity and all age groups. They have in common perhaps only that they choose to live in a loving and supportive relationship. It is not possible, I believe, to discern in such relationships any less commitment to a successful relationship than one would find in any other domestic relationship in our community—for example, in a de facto heterosexual relationship. Whether one approves of such relationships personally is irrelevant. It is a matter of choice for those entering such relationships, and I personally respect their right in a society such as 21st century Australia to make that choice.

It is of course not within the capacity of any law to change social views about particular social phenomena—at least not directly. If this legislation should pass through the parliament, we do not in effect change the views of many Australians towards people in same-sex relationships. I think it would be beyond the power and, in fact, the desirability of legislation to do that. Equally, the law should not artificially place barriers in the way of or burdens on Australians who choose to enter into such relationships. This and the other legislation which make up this package are designed to ensure that those artificial barriers to people who live in that particular kind of relationship are removed.

I do not understand what social harm is addressed by keeping in place articles of petty discrimination against those who enter into a same-sex relationship. I have a longstanding commitment to supporting that right of choice, which is open to all in our free society, and I welcome the bill as a mechanism to ensure the rights of same-sex partners, and the dependants of those relationships, to access facilities such as superannuation.

I belong to a party that believes in choice. I belong to a party that believes in freedom. I revel in a diverse, pluralistic, multicultural and multifaith society, where people make all sorts of decisions. To the extent that they make those decisions, I wish them well. I ask only that they make decisions which do not harm other people. I do not see in the various disabilities that we have imposed in the law of Australia on people in same-sex relationships over many years any particular issue that touches on people outside those relationships which would warrant the preservation of those forms of discrimination.

Many individuals make a choice about these things in the face of opposition and discriminatory actions or comments from some sectors of the community. But that is no reason for the dependants of such individuals to be treated differently from the dependants of any other contributor when, for example, distributing their entitlements from a superannuation scheme. Such contributors might be judges, politicians, actors, artists, defence personnel, public servants or bus drivers. I am sure that in every one of the states and territories represented in this chamber there are people in all of those categories and many more who are in fact at this time in same-sex relationships.

As we all know, superannuation is the main source of saving towards retirement for most people and to support their family in case of early death. Currently, however, in most schemes, particularly the older Commonwealth ones, same-sex partners do not qualify as a ‘spouse’ or a ‘marital partner’ in order to receive a death benefit or retrospective superannuation pension on the death of their partner. The amendments before us aim to rectify this situation by changing the definitions of ‘spouse’ and ‘marital relationship’ to ‘partner’ and ‘couple relationship’ in some nine acts covering the superannuation of various Commonwealth employees, including, incidentally, the Governor-General Act 1974 and the Parliamentary Contributory Superannuation Act 1948. The amendments also cover further regulatory superannuation and taxation acts.

There has been some debate about the definition of ‘child’ in the various schemes, and I take the point that the definition needs to be carefully worded so as to be effective and not to cause unnecessary offence or to place people in invidious situations with respect to the wider operation of the laws of Australia. But those problems are not insurmountable, and those problems should not be a barrier to the passage of this legislation in this or a very similar form by this parliament.

It is estimated that the measures contained in the bill will cost on average $8 million per year for the next four years and increase the unfunded liability by around $112.6 million. But I emphasise that, in looking at that figure, we are providing for an entitlement which I believe these families—families based on same-sex relationships—should enjoy just as others who, in their relationships, contribute the same dollars and are entitled to enjoy the benefits of their contributions to superannuation schemes.

Mention has been made about the importance of the legislation protecting the sanctity of marriage. Let me put on record very clearly my view that marriage is an extremely important institution in our society. I see it as the bedrock of a successful society, and I hope that nothing done by this parliament at any time will undermine the effectiveness and the value of the institution of marriage in the eyes of Australians. But marriage is not strengthened or supported or made better by applying disabilities to those Australians who, for whatever reason, choose to be part of other kinds of relationships. Marriage is not strengthened by actually discriminating against people in those sorts of relationships. We should ask ourselves whether the pieces of legislation to which this bill and other bills in this package are directed actually contribute to anything as noble as the strengthening of marriage or are simply anachronisms which deserve to be removed.

Members of this chamber will be well aware that for many years Australia has been a signatory to the International Covenant on Civil and Political Rights, and that covenant states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground ...

I do not understand there to be any good reason why that provision should not be the anchor on which we move tonight or in the course of the next few weeks to effect the changes to legislation that will remove those forms of discrimination which are referred to directly in article 26 of the international covenant.

Mr Acting Deputy President Barnett, I am acutely aware of the concerns that have been raised by coalition members, you included, of the Senate Standing Committee on Legal and Constitutional Affairs, which reported a short time ago. I think it is extremely important that the issues which were given rise to in that report, particularly the report of coalition senators, be fully and properly addressed. It does concern me enormously that there are 18 pages of amendments to deal with, and I sincerely hope that the government does not expect to put 18 pages of amendments before the Senate this week and expect them to be dealt with by the Senate in a considered way. I hope that those issues can be worked through and that by moving those amendments, considering them and supporting them as appropriate we can strengthen the purpose of this legislation.

But I ask members of this place not to be distracted from the main task put forward by this bill and the other bills in this package. It is to bring out of the shadows, in a legislative sense, those people who have laboured under special difficulties by virtue of their personal and other arrangements because of their membership of a same-sex relationship. If there is good reason for preserving some form of discrimination in those circumstances, I look forward to hearing it and to understanding why that discrimination should be retained. I have not yet heard such good reasons, and I do not imagine that I will in the course of this debate.

I implore senators to consider carefully the commitments that we have all made, through our various parties, to the Australian community. I am certainly aware of the commitment made by my party now at two successive elections to remove discrimination against people in same-sex relationships. The detail might be a matter to quibble over; the thrust of what is required to do that should not be quibbled over and should be the task of the Senate in the coming days and weeks. I commend this bill—and the others in the package—to the Senate and trust that it will be viewed and considered in good faith by every senator who sits in this place.