Reps passes same sex reforms

The House of Representatives, on party lines, has passed the Same-Sex Relationships (Equal Treatment in Commonwealth Laws- General Law Reform) Bill, part of the package of reforms put forward by the Government in response to last year’s report by the Human Rights and Equal Opportunities Commission Report: Same sex: same entitlements.

Fairfax online reports that Malcolm Turnbull, who along with Tanya Plibersek has the highest concentration of LGBT voters in his electorate, was conspicuous by his silence in the debate.

More prominent was Queensland Liberal backbencher Stuart Robert who came out with these pearlers:

This bill, in giving such wide sweeping legal recognition as ‘parents’ to
both parties of a homosexual couple,gives implicit endorsement to these methods
used to conceive a child and the family construct they will grow up in. To
legalise that a child can actually have, for example, two fathers and no mother
is at odds with the norms that our society is built on.

I believe that deliberately creating a child to be placed in a
homosexual partnership is irresponsible, considering all of the available
evidence, and that the Commonwealth should not be complicit in allowing it
either by permitting access to reproductive or surrogacy services for such
couples or by granting both partners equal recognition as parents.

He also stated that the Bill will allow the recognition of overseas same sex marriages for visa purposes under the Migration Act.

Bronwyn Bishop criticised the Bill, which will amend 68 pieces of legislation, as promoting polygamy.

The Bill will now run the hurdle of the Senate- either with the support of the Opposition, or that of the Greens plus Nick Xenophon plus Family First’s Steve Fielding.

Debate on the Bill for the Government was led by Labor Queensland backbencher Shayne Neumann. He said:

Mr NEUMANN (Blair) (6.18 pm)—The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 will amend 68 Commonwealth laws. The Attorney-General said that the bill was long overdue. I think it is far from long overdue; it is very overdue. We should not treat Australians differently, whether they live in Tasmania or the
Torres Strait, in Perth or Penrith, or in my electorate in Booval or Boonah, or in Kalbar or Karalee. It is simply wrong to penalise children on the basis of the sexual
orientation of their parents. The best interests of children must be the paramount consideration in all legislation.
It is unacceptable that more than 20,000 Australians are discriminated against and their families and children denied fundamental financial and work related entitlements which, for example, my wife and I and our children enjoy in what is often described as a traditional
marital relationship. Why should my family be entitled to more in terms of carers’ leave, spend less for medical care, have better access to Medicare and thePBS safety net, and receive more tax concessions and enhanced pension rights than those who are my friends and family who live in same-sex relationships. It is unacceptable in a society which says that it aspires to a fair go to allow this sort of discrimination to continue.

If we say we live in a humane society, then we must believe that any child should have the same equality of opportunity and equality before the law as anyone else. And if we say we care about the financial security of all Australians, then we must pass this bill. Specifically, this bill inserts a new definition of a de facto partner into the Acts Interpretation Act 1901 to ensure equality for all. A couple will be taken to be living in a de facto relationship if they are living together
on a genuine domestic basis, having regard to a whole range of factors included in the definition. Those factors are similar to what we have seen in state legislation governing property and spousal maintenance issues, and specifically in part 19 of the Property Law Act of Queensland and the Queensland Acts Interpretation Act. It is also akin to the groundbreaking bill
which we debated in this House a few weeks ago on a very long overdue Commonwealth jurisdiction enhancement in terms of family law disputes in relation to property and superannuation issues between de facto heterosexual couples and same-sex relationships.

Some of the factors that the court will have to look at to establish that the couple is actually living in a de facto relationship, whether of a heterosexual or homosexual nature, include the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship exists, the care and support of children, the degree of mutual commitment to a
shared life, the reputation and public aspects of the relationship and other factors. Interestingly, under proposed section 22B amending the Commonwealth Acts Interpretation Act, a person will be considered to be in a de facto relationship if that relationship is registered under a prescribed law of a state or territory as a prescribed kind of relationship. In other words, if the couple
has taken the time to register their relationship under state or territory schemes, they automatically come within the definition of a de facto relationship for the purpose of the Commonwealth, and so they can enjoy the entitlements that the legislation provides.

The bill expands the definition of ‘child’. It does not replace the definition of child in the current legislation;it expands the classes of children. It states that a child will be considered to be a person’s child where the child is the product of a relationship the person has had with another person or with another couple. The key definition of child is extended to include recognition of
children of opposite-sex relationships who are not covered by existing definitions in terms of other acts and other provisions. For example, if a child is biologically related to either member of an opposite-sex couple and was conceived through a private surrogacy arrangement
either by the use of artificial insemination or sexual intercourse, that child would be recognised.

Consent to the procreation of a child is not an express requirement in the key definition of child and that is because, as it has been described in the explanatory memorandum, the term ‘product of a relationship’ implies an element of joint endeavour. In the circumstances, the extension of class of children is a good thing for those children who in the past have not enjoyed the benefit of this type of legislation.

There is a lot of legislation being amended—68 Commonwealth laws. They cover a vast array of
Commonwealth jurisdiction and legislation, including legislation in relation to agriculture, fisheries and forestry and legislation under the Attorney-General’s purview. These include the Acts Interpretation Act, the Administrative Decisions (Judicial Review) Act, the Age Discrimination Act, the Australia Federal Police Act, the Bankruptcy Act, the Crimes Act, the Judges (Long Leave Payments) Act, and the High Court Justices (Long Leave Payments) Act. So there is a lot in terms of the Attorney-General’s portfolio, and you would expect that a lot of legislation would go towards that in which the Attorney-General has coverage. There
are also changes in terms of the Broadband, Communication and the Digital Economy portfolio.

Defence also has legislation which is amended—specifically, the Defence Force (Home Loans Assistance) Act, the Defence (Parliamentary Candidates) Act and the Royal Australian Air Force Veterans’ Residence Act. Education, employment and workplace relations are also covered to ensure that children are not discriminated against in their educational opportunities. The Education Services for Overseas Students Act, the Higher Education Support Act and the Judicial and Statutory Officers (Remuneration and Allowance) Act are also amended.

There are some changes in the definition of stepchildren, step-parents and widowers. This is another area which needed reform. Ordinarily, references to stepchildren, step-parents and widowers means that there has to be a marital relationship. In the future, that
will not be the case. The bill expands the definitions of stepchild and step-parent to include a child of an opposite-sex or same-sex de facto partner by a former relationship and includes same-sex or opposite-sex de facto partners of a parent of a child by a former relationship.
That obviously intends to correct what has been a longstanding injustice.

There are amendments to the tracing rule as well, which will help identify family
relationships. For example, where family relationships such as brother, aunt and grandparent are provided for in the bill, the tracing rule will allow those relationships referred to in the bill to include those relationships through a parent-child relationship.

I cannot really see how removal of discrimination against same-sex couples and their children in any way undermines marriage. It does not. It does not alter or affect marriage in any way whatsoever. I find it hard to accept that groups that have campaigned against this type of legislation claim to promote faith, family and freedom. How can they say that they promote these types of virtues when they oppose freedom from discrimination?

Many good friends of mine are involved in the Australian Christian Lobby and they have played
a constructive role in advocating for the relief of poverty, for more foreign aid to those countries that have been disadvantaged and they have rightly pushed the case for responsible alcohol consumption and protection of children from pornography and all its exploitation.

To its credit, the ACL has actually given approval to end discrimination and actually agreed that the state legislation in terms of registration of relationships is appropriate. But I do not agree with their criticism that the Rudd government is engaging in anything which would undermine marriage. The bill does not have this intention; it does not have this unintentional consequence.

This bill has its origin in the 2007 HREOC report, Same-sex: same entitlements. This bill the fulfilment of an election commitment. It is about lifting up; it is not about bringing down. It is not the thin end of the wedge. It is not a backdoor attempt to legislate for polygamous relationships, as was said previously in relation to the family law amendments. It is an attempt help people who are currently disadvantaged in our community.

There has been a lot of public comment in relation to interdependent relationships. This bill should not recognise interdependent relationships. How does one really define that? It is notoriously complex and it covers a vast array of relationships. It is almost impossible to quantify the cost to the Australian taxpayer if that were included in this bill. There is simply
no evidence or data from which one could calculate the expected number of relationships. Sadly, I think the infusion of this type of issue in the debate is a distraction; it is a ruse. It is a device to delay equality from being achieved.

It is a great shame that, in the nearly 12 years of the Howard government, they did not bring this type of legislation into the House. Their attitude to same-sex law reform could be characterised as idleness, indolence and inactivity. Their response in relation to helping people in these circumstances and their children is a disgrace. They did nothing. They promised much and
delivered little in this regard. They denied economic justice to same-sex couples. This bill will help tens of thousands of Australians and their children. About 20 per cent of lesbian couples and about five per cent of gay male couples have children. Their children will benefit. This bill overcomes the challenges left by the Howard government. It is a fair and humane bill. It is
about ending discrimination. It is about equality before the law. It is about financial security. It is about lifting up and helping fellow Australians to achieve their full potential in life and giving them the kind of life that those of us who are in other relationships take for
granted every day of our existence. I commend the bill
to the House.

Victorian Labor backbencher Mark Dreyfus had this to say:

The move towards a fair, inclusive and just society is a journey. It is a series of steps that this nation takes together, mostly forward but occasionally backward. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 is most definitely
a step forward. It is a significant piece of human rights legislation, and it is a significant piece of profamily legislation that will help to overcome the discrimination still faced by tens of thousands of gay and lesbian Australians, their families and their children.

This bill will amend 68 Commonwealth statutes to remove discrimination against same-sex couples and their children. These amendments extend across the entire scope of government activities because the discrimination experienced by gay and lesbian Australians has been both unjust and pervasive.

This bill is an acknowledgement that the Commonwealth has failed to ensure what should be a fundamental right for all Australians: equality before the law. Our Commonwealth has failed to provide equal access to health and social security. Our Commonwealth has failed to honour and support every one of our veterans. Our Commonwealth has failed to support equally all
working Australians as they save for retirement. Our Commonwealth has failed to treat with respect and dignity all Australian families. In short, our Commonwealth has treated gay and lesbian Australians as second-class citizens.

To consider just how pervasive this discrimination has been, it is worth listing some of the acts which are being amended by this bill: the Crimes Act 1914, the Commonwealth Electoral Act 1918, the Superannuation Act 1976, the Health Insurance Act 1973, the National
Health Act 1953, the Migration Act 1958, the Australian Citizenship Act 2007, the Privacy Act 1988 and the Corporatons Act 2001. Every single one of the acts that I have just mentioned is significant to our national life. They deal variously with the provision of government services, with participation by Australians in political life, with the relationship between individuals
and the executive and with the functioning of our national economy. In every single one of these acts, we find discrimination against our fellow Australians.

The laws of this nation must speak to and reflect the lives that Australians lead. Australian families and relationships are diverse, and our laws should reflect this diversity….

The Aged Care Act effectively says to elderly gay and lesbian couples, many of whom have been together for much of their lives, ‘Your relationship does not exist. The relationship that you have built and the love and support that you have provided to each other count for
nothing in the eyes of your government.’ And it also says something like this: ‘Because you are not in a relationship,if one of you requires care you will be charged higher costs. Your family home will not be protected and your partner may be forced to move in
their old age.’ The description of this situation as ‘discrimination’ seems almost too clinical. It is, in fact, cruel. It is offensive. It is mean-spirited. And it is unworthy of our Commonwealth.

Similarly, under the National Health Act 1953, same-sex couples and their families experience discrimination in accessing the Medicare and the Pharmaceutical Benefits Scheme safety nets. These safety nets exist to limit the amount that will be spent on medical expenses by people with high medical costs either through out-of-hospital expenses, in the case of the
Medicare safety net, or through pharmaceutical expenses, in the case of the Pharmaceutical Benefits Scheme safety net. Neither the Health Insurance Act 1973, the legislation which governs the Medicare safety net, nor the National Health Act 1953, which governs the PBS safety net, recognises same-sex couples.

As such, same-sex couples and their families are placed at a financial disadvantage. In a family which faces high medical expenses, this may result in hundreds or thousands of dollars being paid out which an opposite-sex couple in a similar situation would be protected against paying.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544