House of Representatives

Same Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008

Second Reading Speech

Mr McClelland (Attorney-General)

I move:

That this bill be now read a second time.


It gives me great pleasure to introduce the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Bill 2008.

This bill introduces the second part of the Rudd government's historic reform to amend a range of Commonwealth laws that discriminate against same-sex couples and their children.

I introduced the first bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-Superannuation) Bill 2008, in the House on 28 May 2008.

Today we undertake major reforms which will effectively remove same-sex discrimination from many areas of Commonwealth activity.

This bill will amend 68 Commonwealth laws. Nineteen government departments were involved in the drafting of the bill.

It will not only remove discrimination against same-sex couples but also remove discrimination against their families and, most specifically, their children.

Shameful delay in removing discrimination

I am sure many in this House would agree that these reforms are long overdue.

The delay in removing this discrimination is a matter of shame for both sides of the House.

It is almost 20 years since 'sexual preference' was added as an additional ground of discrimination under the Human Rights and Equal Opportunity Commission Regulations.

In 1997 the Senate Legal and Constitutional References Committee identified discrimination in Commonwealth laws and programs that deal with tax and superannuation benefits.

In 2004, the United Nations Human Rights Committee found that Australia was in breach of the prohibition on discrimination in the International Covenant on Civil and Political Rights because the Veterans' Entitlements Act denied a person a pension on the basis of their sexual orientation.

And, of course, in May last year the Human Rights and Equal Opportunity Commission released its report Same-sex: same entitlements-the outcome of a significant national inquiry and consultation on that issue. It personalised many examples of discrimination and the impact of discriminatory laws on Australians.

The commission found that:

At least 20, 000 same-sex couples experience systemic discrimination on a daily basis.
Same-sex couples and their families are denied basic financial and work related entitlements which opposite-sex couples and their families take for granted.
Same-sex couples are not guaranteed the right to take carer's leave to look after a sick partner.
Same-sex couples have to spend more money on medical expenses than opposite-sex couples to enjoy the Medicare and PBS safety nets.
Same-sex couples are denied a wide range of tax concessions available to opposite-sex couples.
The same-sex partner of a Defence Force veteran is denied a range of pensions and concessions available to an opposite-sex partner.

On coming to office, I instructed my department to carry out a whole-of-government audit of Commonwealth legislation building on the commission's excellent work.

The audit confirmed the commission's findings.

It further identified that discrimination also occurs in a range of non-financial areas, such as administrative and evidence laws.

What the Bill will do

This bill removes discrimination against same-sex couples and their children in many of the laws that were identified by the commission and the audit.

The bill will ensure in each law it amends that same-sex couples and their families are recognised.

The amendments in the bill recognise a same-sex partner and adopt a similar approach to that taken in the first bill to recognise a child in a same-sex family.

The general approach taken by the bill is that 'a child' will include a child that is the product of a relationship, where one partner is linked biologically to the child or where one partner is the birth mother of the child.

By applying this definition, opposite-sex and same-sex families are treated equally.

I am aware of some criticism of the bill.

However, without it there is a risk that we will not recognise all children in same-sex families. Whatever people's views are, I am sure they will agree that children should be treated equally wherever they may be in Australia and irrespective of the relationship of their parents.

The approach also avoids relying on inconsistent state and territory parenting presumptions that are contained in a variety of laws around Australia.

We must take a national approach to addressing these issues to ensure that all children, wherever they may be in Australia, are treated equally.

Many in this House would agree that it would be inappropriate for Commonwealth benefits to recognise children on the basis of which state or territory they happen to have been born in.

Definition of a 'de facto partner'

The bill includes a new definition of de facto partnerships which will be included in the Acts Interpretation Act.

This definition will become the standard definition for most Commonwealth laws, and the laws that will be amended will, in most cases, pick up that definition.

It will provide a more consistent and uniform approach to defining who is a de facto partner across a range of Commonwealth laws.

It will apply to de facto partnerships whether the parties to the relationship are of the same sex or different sexes.

This definition will recognise two different types of relationships.

The couple will be taken to be in a de facto relationship if they have a relationship as a couple living together on a genuine domestic basis having regard to a number of circumstances included within the definition.

Registered relationships

The definition will also specifically and clearly recognise relationships that have been registered under prescribed state and territory relationship registration schemes.

What this will mean is that couples who have registered their relationships under a state or territory law will not have to demonstrate the circumstances to satisfy the definition of de facto partner under most Commonwealth laws.

They will be taken to be a de facto partner on the basis that they have satisfied the requirements for registration under the relevant state or territory law.

This will provide a significant incentive for couples to register their relationships under state or territory schemes.

They can be confident in those circumstances that their registration under a state or territory scheme will, for most purposes, be recognised automatically by the Commonwealth. Currently, such schemes exist in Tasmania, Victoria and the Australian Capital Territory.

It is also, of course, an incentive for other states and territories that do not have such schemes to develop and implement their own. The federal government's position is that, should they do so, they should be consistent with the general principles that exist in the schemes in Victoria, Tasmania and the ACT.

Acts that take a different approach

The definition in the Acts Interpretation Act will not be used in all the acts being amended by the bill.

Some acts, such as the Social Security Act and the Migration Act and the Veterans' Entitlements Act, currently have their own approach to defining who is a member of a couple or de facto partner or a child of a person.

Given the specific issues that are dealt with by these acts, a slightly different approach to the definition of de facto partner or child is adopted.

The factors are generally similar but they do not refer to the new definition of de facto partner to be inserted in the Acts Interpretation Act that I outlined a little earlier.

Nonetheless, in relation to those acts, the bill amends the relevant provisions to ensure that same-sex couples and their families are recognised.


The bill does not recognise interdependent relationships. I recognise that this is an issue of some controversy.

Recognising interdependent relationships, however, raises many complex issues, and interdependent relationships would not necessarily benefit from such recognition.

For a start, the relationships can be difficult to define.

There is no consistency in how they are defined or applied across Commonwealth laws or programs.

And there is also a lack of reliable data on the likely numbers of relationships-which makes it difficult to calculate the financial implications of any recognition.

Interdependency can include, for instance, a wide range of relationships, from flatmates to adult children living at home to siblings who care for one another and who are emotionally and financially dependent on each other.

Recognising interdependent relationships, as I have indicated, may not be appropriate or fair in all situations. For example, in the social security or pension context it could mean that two sisters who live together would be treated as a couple and receive a lower amount in pension because of their interdependent relationship. On our calculations, such a couple would potentially receive a significant amount lower than they would otherwise receive if they were treated as single people for the purpose of their entitlements.

While the position of some interdependent relationships (such as carers) may need to be closely considered by the government, this bill (which seeks to remove discrimination against same-sex couples and their families) is not the vehicle to address those concerns. In particular, as I have indicated, those members opposite who have advocated recognition of interdependent relationships should really look into this issue and ascertain for themselves the number of people in interdependent relationships who would actually be significantly worse of if they were to succeed in covering interdependent relationships in the context of these reforms.

Marriage and marital status discrimination

This bill also removes some laws that treat people in the same circumstances differently depending on whether they are married or not.

For example, the opposite-sex de facto partner is not considered the associate of a person for the purposes of the Foreign Acquisitions and Takeovers Act, and there are obviously a number of other similar circumstances.

It seems incredible that for almost 24 years it has been unlawful to discriminate against a person on the basis that they are or are not married.

And yet Commonwealth laws still exist that only provide a benefit to a person on the basis that they are married to another person, while a person who is in exactly the same situation but not married would be denied that benefit. That applies, I might say, whether that relationship be de facto or same sex.

The bill addresses these areas by recognising both opposite-sex couples and same-sex de facto couples.

Stepchildren, step-parents, widowers

Another area of marital status discrimination is in relation to stepchildren, step-parents, widowers and widows.

Currently, the ordinary meaning of these terms requires that a person be married.

This problem must be addressed if we are to remove discrimination, as children in same-sex relationships would never qualify as stepchildren because same-sex couples cannot marry their partners.

The problem not only affects same-sex de facto couples but also affects opposite-sex couples who are not married. Again, I think that all people would recognise the undesirability of discriminating in particular in those instances against stepchildren.

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 to include a same-sex or opposite-sex de facto partner of a parent of a child by a former relationship. That obviously is intended to address the injustice.

Another example of marital status discrimination is where entitlements are payable only to a 'widow' or 'widower'.

Again, the ordinary meaning of these terms requires a person to have been married to another person.

Without amendment a de facto partner (whether of the same or different sex) would not be entitled to the benefit as they were never married to that person.

The bill's general approach to these issues is to replace the terms by referring to a surviving spouse or de facto partner.

Tracing rule

The bill also introduces a tracing rule to identify family relationships.

Where family relationships such as 'brother', 'aunt', and 'grandparents' are provided for in an act, the tracing rule will allow relationships referred to in the act to include relationships that are traced through the child-parent relationship.

This will ensure that family relationships will be recognised in same-sex couple families in the same way as they are recognised in opposite-sex couple families.

Transitional issues

For some of the acts amended by the bill, transitional saving and application provisions have been drafted to ensure the smooth implementation of the amendments.

A provision has also been added to the bill allowing the Governor-General to make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments and repeals made by the bill.

Most of the amendments will commence on the day after the bill receives the royal assent.

Other amendments have a delayed commencement date.

This will provide time for agencies to train their staff or to amend forms or procedures, or introduce new software and other technologies.

Delayed commencement will also allow time for individuals who may be affected by the changes to adjust.

All of the amendments are expected to come into effect by the middle of 2009.

Diminishing Marriage

It is unfortunate that this debate sometimes gets sidetracked into a debate about allegations of undermining the institution of marriage. Removing discrimination against same-sex couples does not undermine marriage.

The Rudd government's policy on marriage is very clear.

Indeed, the policy of both sides of parliament on marriage is very clear. It reflects the widely held view in the community that marriage is between a man and a woman. And it is defined as such in Commonwealth legislation.

This in turn reflects the traditional view of marriage that has been built up over many centuries. This legislation in no way, shape or form diminishes, alters or undermines the institution of marriage.


Removing discrimination is about making sure that same-sex couples and their families are recognised for all practical purposes and have the same entitlements as opposite-sex de facto couples.

The bill provides equality of treatment for children who are brought up in same-sex families in a range of Commonwealth programs and laws.

It provides functional recognition of these families in a way which will make a real practical difference to their lives as well as removing discrimination.

It is time to stop treating people differently under Commonwealth laws or programs as a result of who they are in a relationship with or indeed who they love.

It is also time to stop treating children differently under Commonwealth laws or programs because of the sexual orientation of their parents.

This bill is long overdue and will remove discrimination to ensure that same-sex couples and their children will be able to receive the same treatment as opposite-sex de facto couples and their children in the same circumstances.

In conclusion, I would also like to acknowledge the tremendous work that was undertaken by my department, the Attorney-General's Department, on this legislation. As I indicated, some 19 government departments have been involved in assisting in this measure. There has been enormous cooperation across the Commonwealth Public Service. I think it is recognised that it is high time that these amendments were made to remove the last vestiges of discrimination from Australian laws in respect of people living in de facto relationships or same-sex relationships.

It represents a major step to ensuring full equality before the law for all Australians, regardless of their sexuality or the status of their relationship.

I commend the bill to the House.

Debate (on motion by Mr Haase) adjourned.