Opposition: Same sex super bill off to committee

Opposition: Same sex super bill off to committee

Opposition Leader, Brendan Nelson has said that while the Opposition would support the same sex super changes in principle, it will use its numbers to refer the matter to the Senate Committee. The Government is seeking to speed up the process. The Opposition is seeking to slow it down.

The Government wants the amendments through before 1 July, to enable Commonwealth public servants to plan their future better. It is highly likely that by flicking it to a Senate Committee in which it will have the numbers, the Opposition will slow matters down.

What is not being said in the debate is the person who helped prompt the debate. Justice Michael Kirby of the High Court is Australia’s most prominent gay judge. Last year he was reported as writing to John Howard seeking these changes, pointing out that when Justice Ian Callinan was to retire last year, Justice Callinan’s wife Wendy would be entitled to a widow’s pension if Justice Callinan died before her, but that if after Justice Kirby reaches the mandatory retirement age this year and died before his partner Johann, Johann would not be entitled to anything.

One of the speakers, Chris Pyne, quoted what Shadow Attorney-General Senator George Brandis SC said last year:

“It is far too late in the day for anyone sensibly to suggest that
in Australia there is a place for discrimination against people
on the grounds of their sexuality. That attitude reflected the
prejudices of a different time and a different age which are
now obsolete and must be seen to be ignorant.”

Here is what Brendan Nelson told the House:

Dr NELSON (Bradfield—Leader of the Opposition)
(4.43 pm)—We believe in the equal right of every
Australian citizen to be treated with dignity and respect.
We believe that all must have an equal right to
lead their lives in their own way, according to their
own choices and their own decisions, so long as they
respect the equal right of all others to do the same. We
believe that every Australian is equally entitled to a fair
go, regardless of who they are, where they live or
whether their parents were rich or poor. They are entitled
to equal treatment regardless of the colour of their
skin, the god whom they worship, if any, the political
beliefs which they hold, their gender or professed sexual
The opposition, therefore, supports in principle the
stated purpose of this legislation to ‘eliminate discrimination
against same-sex couples’ in the nine
pieces of Commonwealth legislation which are subject
to this bill. These deal with superannuation and related
matters in respect of Commonwealth public servants,
members of the defence forces, parliamentarians, judicial
officers and other Commonwealth officers who are
in permanent, bona fide domestic relationships with
partners of the same sex.
I point out that our side of politics has a long record
in ending laws which discriminate against homosexual
people. We do well to remember that it is only a generation
ago, within the memory of many members of
this House, that not only was there no antidiscrimination
legislation but even the private sexual conduct of
homosexual people was treated as a crime.
The first occasion of law reform in this area occurred
only 36 years ago, in 1972, when a Liberal
member of the South Australian parliament, the late
Murray Hill, the father of former senator Robert Hill,
introduced and secured the passage through the parliament
of a private member’s bill decriminalising homosexual
acts between consenting adults. All of the Australian
states and territories followed suit over the
course of the following two decades, but the pathbreaking
initial reform was brought about by a member
of my own party. When this chamber debated the decriminalisation
of homosexual conduct for the very
first time on 18 October 1973, it was on a motion
moved by another great Liberal, in fact a former Prime
Minister of this country, Sir John Gorton.
The Liberal Party yields to no-one in its historic
commitment to reform in this area. For us, it is not
about tolerance, which implies a reluctant acquiescence
to acceptance; it is about respect—the respect for the
rights and dignity of every person unless, in exercising
those rights, they diminish the rights of others. But, in
supporting the principle behind this bill and its basic
stated intention, it is absolutely essential that we do not
turn this debate into something that it is not. In giving
our in-principle support to this legislation, I make it
very clear what the opposition is not supporting. We do
not and will not support any change to or devaluation
of the traditional status of marriage as the foundation,
indeed the bedrock, of our society. In fairness to the
Attorney-General, I do not at this point consider that
this is his intention, but it may be a consequence. Acceptance
that people who live in a permanent domestic
same-sex relationship should be treated the same in
relation to superannuation benefits as people living in a
permanent domestic opposite-sex de facto relationship
must not be allowed under any circumstances whatsoever
to devalue the traditional status of marriage as
being between a man and a woman. The opposition
does not accept that there is either a legal or a moral
equivalency between such relationships and that of
That is not to treat such relationships with disrespect.
It is merely to make the point that marriage is a
unique institution which has, in one form or another,
been the foundation stone of every civilised human
society, whether modern or ancient. It is a relationship
which by its very nature can only exist between people
of opposite sexes, and it remains the surest and most
stable relationship for the nurture and upbringing of
To recognise the unique and intrinsic status of marriage
is not to treat the relationship of same-sex partners
with disrespect, just as to abolish unfair discrimination
against same-sex partners is not in itself to devalue
the institution of marriage. It is to accord the
proper and appropriate treatment to different relationships
which are of a fundamentally different character.
The opposition is concerned about some of the language
in the bill. In particular, the repeal from existing
acts of the expression ‘marital relationship’ and its replacement
by the austere and clinical expression ‘couple
relationship’ might have that perhaps unintended
effect. Those who value the traditional institution of
marriage as highly as we do on my side of politics are
alarmed to see marital relationships reduced to being
one among several classes of permanent domestic relationships
along with the same-sex and opposite-sex de
facto relationships. Protection of the unique status of
traditional marriage starts with preserving its explicit
recognition in our statutes. A misguided change in this
legislation has the potential to encourage similar dilution
of the language of marriage into other acts of the
parliament—and if that is the case we will certainly
move to have this amended. We will steadfastly oppose
The opposition is also concerned at the way in
which the bill defines children who may live in samesex
households. Of course we accept that nothing
should be done—absolutely nothing—to discriminate
against a child who happens to grow up in such a
household when it comes to the circumstances in
which he or she may be entitled to a superannuation
benefit on the death of a parent. Conversely, we need
to ensure that children who grow up in such households
do not enjoy rights which are unavailable to
other children who grow up in de facto heterosexual
households. Equal treatment of children is just as important
a value as equal treatment of the partners in
those relationships.
Finally, as I said when the Attorney-General foreshadowed
this legislation on 30 April this year, the opposition
will not support—in fact we will resolutely
oppose—any measure which might open the door or
otherwise give legitimacy to gay adoption, gay IVF or
gay surrogacy.
At the start I spoke about the importance of treating
every human being with dignity and respect. That is the
principle which in the end underlies all varieties of
antidiscrimination laws, including in this bill. Yet in
pursuing law reform in this area we must be very careful
to avoid the trap of creating new inequalities by
according economic recognition to the status of some
types of relationships but leaving others unrecognised.
This bill opens the door on the whole question of the
proper treatment of all kinds of interdependent relationships
outside marriage. There is an infinite variety
of circumstances in which two people who are not married
to one another might nevertheless decide to live
their lives together. Not all of those relationships are
sexual, nor is it any of society’s business whether or
not they are. The key characteristics are that they are
co-dependent, exclusive and are intended or at least are
expected to be permanent. Most importantly of all,
they are founded on a deep, mutual commitment to one
another and love of a platonic kind.
A common example is of two unmarried sisters who
decide to live together as a household and do so
throughout all of their adult lives. Should they not have
the same rights in relation to property, taxation and
superannuation as two gay people who decide to do the
same in a sexual relationship? What of a woman who
gives up the opportunity of marriage and children to
spend her entire life looking after an invalid brother?
There are many kinds of such relationships. We have
all seen them amongst our constituents, and I have certainly
seen them in my life as a medical practitioner.
There is, in the opposition’s view, a strong argument
for giving those relationships as much recognition and
respect as we give to same-sex relationships. In our
view, just as same-sex couples should not be discriminated
against, nor should they be accorded a recognition
and status denied to other permanent, domestic,
non-marital relationships. This has been the course
followed by some of the states—in particular, Victoria
and Tasmania. It is a course which commends itself to
the opposition.
We should not deal with one set of injustices by creating
others. Accordingly, while not denying this bill
passage through the House of Representatives and, as I
have said, while supporting the anti-discriminatory
principles behind it, it is the intention of the opposition
to refer the bill to the Senate Standing Committee on
Legal and Constitutional Affairs to examine the various
matters of which I have spoken.
Further, I note that the opposition has been advised
via the office of the Attorney-General, for which we
are grateful, that there is another, much larger omnibus
bill to be introduced into the House of Representatives
shortly which deals with all other areas of discrimination
against homosexual people in Commonwealth law
and, in particular, gives effect to other recommendations
of the Human Rights And Equal Opportunity
Commission’s Same-sex: same entitlements report of
May 2007. The opposition had expected to see the bill
before now but evidently there has been some delay in
its preparation, and I can understand that. It is important
that this matter not be dealt with in a piecemeal
way but be considered as a whole. I therefore foreshadow
that it is the intention of the opposition to refer
this additional bill to the Senate Standing Committee
on Legal and Constitutional Affairs as well so that the
whole issue of the elimination of unjust economic discrimination
against same-sex partners and the potential
expansion of the reach of anti-discrimination laws to
other categories of interdependent relationships can be
considered together. To do otherwise would be to abrogate
our responsibility as legislators to carefully examine
and fully understand the consequences to society of
the decisions that we will ultimately make.
This is not a delaying tactic. If there has been a delay,
it has been on the part of the government in not
introducing the omnibus bill before now. But if we in
this parliament are to embark on this major piece of
law reform—as we should, in principle—which, as I
have said, has the opposition’s in-principle support, we
must get it right. It is more important that this be done
properly than it be done immediately, whilst recognising
that it is time for justice to be done.
It is also important that we bring the whole community
along with us and in doing so respect the legitimacy
of views that are held with great conviction by
those at either end of this debate. No Australian should
pay a dollar more in tax or receive a dollar less in support
by virtue of his or her sexuality. That is the principle
for which we stand which needs to be addressed.
It is time to address economic injustice but, in doing
so, we must not—indeed, we will not—through indifference,
neglect or undue haste allow legislation to
pass that undermines the institution of marriage in any
way or that possibly has unintended consequences for
the treatment of children in same-sex relationships.
This bill alone will not end injustice on the basis of
sexuality. But if we get it wrong, we may create other
injustices and do great damage to the institutions and
values that define who we are and which built a resilient
On behalf of the opposition, therefore, I move:
That all words after “That” be omitted with a view to substituting
the following words: “whilst not declining to give
the bill a second reading, the House:
(1) affirms its commitment to the central importance of the
institution of marriage to Australian society;
(2) recognises that partners to permanent interdependent
domestic relationships other than marriage (including,
but not limited to, same-sex relationships) ought not to
be discriminated against in relation to their financial affairs;
(3) notes that the Opposition will refer the bill to the Senate
Legal and Constitutional Affairs Committee with a view
to ensuring that, in removing discrimination against
people in same-sex relationships:
(a) the centrality of marriage is not devalued, whether
by the use of inappropriate statutory language or
(b) the rights and status of children are properly protected;
(c) the rights and status of people in interdependent relationships
other than same-sex relationships are
recognised and properly protected”.

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