ADDITIONAL COMMENTS BY SENATOR HANSON-YOUNG
Introduction
1.1
The Australian Greens commend the Chair and committee secretariat on the
comprehensive nature of the committee’s report.
1.2
We believe that the inquiry into the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws – Superannuation) Bill 2008 (the Bill) has
provided the committee with the opportunity to recommend to the Government ways
to strengthen and tighten the legislation to ensure same-sex couples are not
discriminated against in any way.
1.3
However, the Australian Greens have a number of additional concerns
which we consider should be addressed to ensure equality for all couples –
regardless of their sexuality – is actually met.
Background
1.4
There has been discussion and public debate about the removal of
same-sex discrimination for decades.
1.5
The first stage of the Rudd Government’s election promise to
remove discrimination against same-sex couples in more than 100 pieces of
Commonwealth legislation following a 2007 Human Rights and Equal
Opportunity Commission (HREOC) report highlighted that at least 20 000 same-sex
couples experience systemic discrimination daily.
1.6
The Australian Greens believe that freedom of
sexual orientation and gender identity are fundamental human rights.[1]
The need for acceptance and celebration of diversity, including sexual
orientation and gender diversity, is essential for genuine social justice
and equality.
Private Superannuation Funds
1.7
The Australian Greens do not think people should be discriminated
against on the basis of their sexuality.
1.8
In particular, we, along with other key witnesses, are concerned that
while the government’s proposed piece of legislation will provide for
superannuation entitlements for same-sex couples who have Commonwealth super
schemes, for those who have commercial super schemes, the discrimination could
continue.
1.9
Where a superannuation fund provides for recognition of an opposite-sex
relationship as a “de facto relationship” we believe this should be
non-discriminatory.
1.10
While this Bill specifically legislates for judges, veterans and
Commonwealth public servants, it allows private superannuation firms to, if
they choose to, remove the discrimination, and yet does not actually mandate
them to do so.
1.11
While the Australian Greens were indeed pleased to see the government
commit to its election promise of removing same-sex discrimination in all areas
of law, we are disappointed to see that this legislation does not specifically
mandate private superannuation firms to stop discriminating against same-sex couples, considering that
around 90 per cent of Australians have their super tied up in private funds.[2]
1.12
The Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS
Act) regulates private superannuation schemes. Where private superannuation
trust deeds refer directly to the definitions contained in the SIS Act, they
will have the immediate effect of including same-sex couples. Yet, the
legislation, in its current form, does not require all trust deeds to
incorporate these definitions.
Recommendation 1
1.13
The Australian Greens recommend the government amend the SIS Act, to
mandate that, where an individual superannuation fund recognises opposite-sex
de facto couples, they must also recognise same-sex de facto couples.
Recommendation 2
1.14
The Australian Greens further recommend that any amendment that is made
will not cause any resettlement of the trust funds or otherwise pose a risk to
security of those funds including tax liability.
Definition of a ‘couple relationship’
1.15
The government explicitly outlines the reasoning for the adoption of the
definition 'couple relationship' in its Explanatory Memorandum stating:
The effect of [these amendments] is to ensure that the
definition of a relationship, for the purpose of the payment of death benefits,
includes a same-sex relationship as well as an opposite-sex relationship. The
inclusion of same-sex relationships within this definition is not intended to
change the treatment of married or opposite-sex de facto couples. It removes
same-sex discrimination but does not change or re-define any other indicia of a
relationship.[3]
1.16
It is for this reason that the Australian Greens welcome the new
definition of a ‘couple relationship’ contained within the Bill.
1.17
We particularly support the explicit reference to same-sex couples in
the definition of partner and the addition of registration of a relationship as
evidence of the existence of a couple relationship.
1.18
The Australian Greens particularly support point number 17 in HREOC’s
submission that states:
The combined effect of replacing the term ‘marital relationship’
with ‘couple relationship’ and replacing the phrase ‘husband and wife’ with
‘partner’ ensures the equal treatment of same-sex and opposite-sex
relationships.[4]
1.19
It is for this reason that the Australian Greens do not support the committee’s
recommendation to amend the definition of ‘couple relationship’ in the Bill to
read ‘marital or de facto relationship’.
1.20
Further to this, the Australian Greens also support the recommendation
put forward by the Australian Coalition for Equality that the recognition of
registered relationships needs to be completely separate from the distinct
recognition of de facto relationships.[5]
Recommendation 3
1.21
The Australian Greens recommend that the current definition of a ‘couple
relationship’ contained within the legislation remains, to ensure the equal
treatment of same-sex and opposite-sex relationships for the purpose of a
payment of a death benefit.
Recommendation 4
1.22
The Australian Greens further recommend an 'umbrella term' of 'couple
relationship' be adopted, to ensure the courts do not treat married, registered
or de facto couples differently, in that each will have unique criteria but be
provided with equal 'couple relationships' entitlements.
Definition of a ‘child’
1.23
The Australian Greens support the intention in the Bill to ensure that
children born into same-sex families have the same rights and entitlements to
superannuation benefits as children born into opposite-sex families.
1.24
The Bill expands the changes the definition of 'child of a relationship'
by adding the concept of a child who is the 'product of the relationship',
which caused significant confusion during the inquiry. Many witnesses claimed
it was ‘ugly’ language without any legal precedent.
1.25
During the inquiry in Sydney, Professor Jenni Millbank suggested to the
committee that the ‘product of a relationship’ concept was attempting:
...to do too many things while pretending it is not doing very
much and that the ensuing confusion and uncertainty will deprive the people of
their rights rather than grant them rights.[6]
1.26
It is for this reason that the Greens, along with other key witnesses,
have concerns about the terminology ‘product of a relationship’ used to define
a child.
1.27
While we support the need for a more concise and legally tested
definition of a 'child', the Greens do not support the committee’s
recommendation that a review be conducted to determine the necessity for the
definition to be included within this Bill.
1.28
While many witnesses highlighted the need to amend section 60H of the Family
Law Act 1975 to express gender neutral language, it should be noted that
the Government has tabled amendments to the Family Law Act 1975,
which would address this concern in the current Bill.
Recommendation 5
1.29
The Australian Greens recommend that the definition of a child and a
parent should simply be called ‘child’ and ‘parent’ (with the exception of
adoptive, step or grand interrelations). This essentially means that the term 'relationship
parent' and 'relationship child', as defined within the Social Security Act
1991, would be amended to simply state 'child' or 'parent'. The definition
should be amended to ensure children across Australia will be equitably
included, and the distinction between parents/co-parents and step-parents
should not be inappropriately blurred.
Conclusion
1.30
The Australian Greens support the removal of discrimination in all areas
of federal law, and we do not want to see the Bill delayed any further. The
public have expressed their desire to have same-sex discrimination removed from
law, and we need to see this discrimination removed expediently.
Senator Sarah Hanson- Young
Greens' Spokesperson for LGBTI
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