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Wednesday, 12 November 2008
Page: 6764

Senator BRANDIS (4:58 PM) —I move opposition amendment No. (1), to clause 2 of the bill, which has been circulated in the chamber:

(1)    Clause 2, page 2, omit the table, substitute:

Commencement information

Column 1

Column 2

Column 3




1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

2. Schedule 1

1 July 2008.

1 July 2008

3. Schedules 2 and 3

1 July 2008.

1 July 2008

4. Schedule 4

1 July 2008.

1 July 2008

5. Schedule 5

1 July 2008.

1 July 2008

The amendment which the opposition moves, and it is the only amendment that the opposition will be moving to the superannuation bill—if I may call it that for the sake of brevity—is in relation to the commencement date. Honourable senators will recall that earlier in the year the opposition indicated that it proposed to refer this bill and the related bills to the Senate Standing Committee on Legal and Constitutional Affairs for consideration. That reference took place and that consideration has since occurred.

It was said by some at the time that the opposition’s move to refer these bills to a Senate committee for scrutiny was a device or a tactic to delay the passage of the bills. Those remarks by those who made them were ignorant and should never have been made. It is apparent from what Senator Wong, who represents the Attorney-General in this place, has said in her contribution to the debate on the omnibus bill that the government not only welcomed the deliberations of the Senate Standing Committee on Legal and Constitutional Affairs but in fact decided—as is apparent from the government amendments to the superannuation bill and the omnibus bill, which we will be debating shortly—having regard to the recommendations of the Senate committee, to improve the bill in the various respects reflected in those amendments.

The reference to the Senate committee was, from the point of view of both sides of the chamber, a beneficial circumstance which will result in an improvement to the bills. So it is a good thing that it happened, and the suggestion that it was done for the purposes of delay, as I have said, had no basis in fact and was ignorant.

Nevertheless, because the superannuation bill was not passed before the end of the last financial year a concern arose as to the possible position of individuals who might have been beneficiaries of the bill had it been passed before the end of the last financial year but, because of the period of time taken up by consideration of the bills in the Senate committee, may have missed out. The particular cases pointed to were cases of people to whom the terms of the superannuation bill might apply who were in relationships and where, between 1 July 2008 and now, a partner in a same-sex relationship died. The opposition has always been concerned to ensure that there is nobody placed in that position. I am not aware, by the way, that in fact there is anybody placed in that position. I have made inquiries and, to the best of my knowledge, there is no-one, but we cannot be sure.

I remind the Senate of what the member for Wentworth, the then shadow Treasurer, now the Leader of the Opposition, said on this matter in the House of Representatives when he spoke in the second reading debate on this bill on 4 June 2008:

The key point that I wish to make now is that if the government wishes to have the benefits of this legislation available to people who would benefit from it, were it to be law today, it could choose to backdate the effective date of this legislation from whenever it chose. We know the tax laws and laws relating to superannuation are routinely—in fact, almost invariably—made effective as of the date of announcement. And it will take some months, often many months, for them to be passed into law. There is no reason why referral to a committee should defer the granting of the benefits that both sides of this House are committed to in terms of substance and in terms of the overall objective. That would ensure that those people who are concerned that they or their partner may die before this bill becomes the law of the land can have their concern set aside, and then the focus can be on the parliament getting the detail and the drafting right.

I interpolate to say that that is precisely what has happened in the ensuing months. Mr Turnbull went on to say:

This is the challenge I throw down to the government: if you are serious about delivering justice to people in same-sex relationships then you can say, as the government, that it will be effective as of budget night, the day after the election or whatever date you choose. It is entirely a matter for the government. It is the government’s liability. It is its money. The only consequence would be that there would be an additional number of people, probably a small number, who would benefit from the additional cost in the scheme of the Commonwealth budget. Having regard to the great objective of equality and equal treatment of people regardless of their sexual orientation, the additional cost is not something that I would imagine would delay or deter members on either side of this House.

The purpose of the opposition’s amendment is to ensure that the provisions of this act, when it receives royal assent, come into effect retrospectively, as from 1 July 2008—in other words, the commencement of the current financial year—and that, in the event that there are some individuals who, as a result of the reference to the Senate committee, might have been prejudiced because of the death of a partner to whom the provisions of the bill would otherwise have applied, then the position of anybody in that unfortunate circumstance can be secured. I wonder whether the minister, who represents the Attorney-General in this place, would be kind enough to explain to the chamber why it is the case, as I understand it, that the government has set its face against this amendment.