Righting an injustice against gays

IN THE midst of uproar in Federal Parliament over the price of petrol, climate change and the economy, another issue has generated a great deal of passion.

The Rudd Government's drily named Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Bill has caused big strains between social conservatives and liberals on both sides of politics.

The bill's intent is simple - to give the same-sex partners of public servants, MPs, judges and defence force personnel the same rights of access to superannuation and death benefits now enjoyed by married and heterosexual de facto couples.

It should have passed before the parliamentary winter break but the Coalition used its numbers in the old Senate to refer the bill to a committee. This means that it did not become law on the Government's intended starting date: July 1. That committee will also consider whether the changes should be extended to other interdependent relationships such as those between siblings, a significant Coalition concern.

This is an overdue social reform that builds on the Human Rights and Equal Opportunities Commission's exposing the still widespread discrimination against same-sex couples on financial and employment entitlements and benefits, especially superannuation. But the Government has made a hash of it.

They did so by its foolish tampering with definitions of eligible relationships in existing legislation being amended. Out go "husbands", "wives", "widows" and "marital relationship". In come "partner" and "couple relationship".

In a few strokes of the Government's pen, the issue was needlessly elevated to attacking the sanctity of marriage and the traditional family of mum, dad and the kids. Instead of just righting historical wrongs, the bill became a proxy for the same-sex marriage debate, with more heat than light the result.

Yet not even the political stupidity of the Government should get in the way of fundamental justice being done. Far from being something to condemn, this measure should be welcomed by social liberals and conservatives.

In his essay On Liberty, John Stuart Mill said that "men (and women) should be free to act upon their own opinions - to carry these out in their lives, without hindrance, either physical or moral, from their fellow men, as long as it is without risk and peril".

People who enter freely into same-sex relationships make a personal choice. Certainly it is a choice not made lightly, as many in our society are ambivalent or openly hostile to it - often including close members of their own families. But provided that no "harm" comes to anyone else, a same-sex relationship is something for the partners alone.

Yet, by allowing for harsh financial discrimination against same-sex partners, we as a society have caused needless and cruel harm to individuals and couples who have done no harm to us. That the law as it stands confers financial rights, such as access to the superannuation payout of a deceased family member, to "next of kin" who may have shunned or even hated their gay relative is just plain wrong.

The financial treatment under the law of bereaved same-sex partners cannot only be financially unfair, it also can be vicious if the dead person's relatives inherit superannuation and death benefits, even if they have strongly opposed the relationship. To be rejected by a partner's family is bad enough, but leaving someone potentially destitute as well is something that no compassionate society should allow.

The commission identified this as something to be righted. Following the pre-election lead of the former Liberal member for Leichardt, Warren Entsch, the Rudd Government is at least doing something for Commonwealth employees.

This bill is not an assault on marriage, far from it. It is not asking for things that are the traditional preserve of marriage, such as access to child adoption or taxpayer-funded IVF. All that it is doing is recognising that through our retirement savings and superannuation contributions we provide for ourselves and those for whom we care, and that we all have the right to ensure that our estates go where we want them to go when the time comes - especially when it is sudden. Just because someone is in a same-sex relationship shouldn't deny them that right.

In attempting to wedge the Opposition, the Government has made a meal of this, but it shouldn't complain about the bill going to a Senate committee. The start date may pass, but the provisions of the bill can always be backdated and difficulties resolved.

If the issue is protecting marriage as an institution, the solution is simply inserting one little word - or. "Husband, wife or (de facto) partner", "marital or (de facto) couple relationship". This would complement but not replace marriage in existing legislation.

This bill rights a long tradition of practical injustice against a group of fellow citizens. It is not a referendum on gay marriage and it shouldn't be turned into one. Many will say it has gone too far, others not far enough in tackling economic discrimination. Including same-sex couple access to the Medicare and pharmaceutical safety nets comes to mind. But in the end it comes down to simply being fair while preserving existing institutions in our society - something that all of us, whether socially liberal, moderate or conservative, can support. Terry Barnes was a senior adviser to the Howard government.