Bills Digest no. 44 2008–09
Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General
Law Reform) Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced:
4 September 2008
House: House
of Representatives
Portfolio: Attorney-General
Commencement: Various
dates as set out in clause 2. Further detail on commencement is provided
under the Main Provisions section of the Digest.
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
The purpose of this Bill is to eliminate discrimination against same-sex
couples and the children of same-sex relationships in a wide range of
Commonwealth laws. The Bill will amend 68 Commonwealth laws. The Digest
provides analysis of all 68 laws under the heading Main Provisions.
The Bill has been referred to the Senate
Legal and Constitutional Affairs Committee for inquiry and report by 14
October 2008 (‘the Senate inquiry’). Details of the inquiry are at:
http://www.aph.gov.au/senate/committee/legcon_ctte/same_sex_general_law_reform/info.htm
The Digest draws on submissions and evidence
given to the Senate inquiry.
This Bill is part of a broader project seeking to remove Commonwealth
statutory provisions which discriminate between same-sex couples and heterosexual
couples. Other Bills which have been introduced to the Parliament seeking
to make similar amendments are the
- Family Law Amendment (De Facto Financial Matters and Other Measures)
Bill 2008 (the Family Law Amendment Bill)
- Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation)
Bill 2008 (the Superannuation Bill) and the
- Evidence Amendment Bill 2008.
These Bills all include provisions designed to treat same-sex relationships
in a similar manner to married and de facto relationships and/or to give
greater legal recognition to the parent-child aspect of these relationships.[1]
In May 2007 the Human Rights and Equal Opportunity Commission (HREOC)
published a significant report: Same Sex: Same Entitlements (‘the
Report’ or ‘the HREOC Report’).[2] This Report identified 58 Federal laws that breached
the human rights of members of same-sex couples, and in some cases the
rights of children. It concluded that
At least 20 000 couples in Australia experience systematic
discrimination on a daily basis…. This discrimination breaches human
rights. And it can be stopped. All it takes is a few changes to the
definitions in some federal laws.[3]
The general response to the HREOC Report was positive, with various indications
showing public support for the Report’s recommendations.[4]
After the 2007 election the Attorney-General’s Department undertook an
audit of Commonwealth laws to identify provisions that discriminate against
people in relationships (taking account of the HREOC
Report). The focus of the Commission’s report had been on financial and
work-related legislation that discriminates against same-sex
couples and their children. The Department’s audit also covered other
areas of life in Australia.
The audit confirmed the findings of the HREOC Report – identifying further
federal legislation that discriminates against same-sex
couples and their children, particularly in the areas of taxation, social
security, superannuation, workplace laws and education assistance.[5]
The audit has not been publicly released, which has been a source of
concern by some contributors to the Senate Inquiry,[6] however in answer to a question from Senator
Hanson-Young the Attorney-General’s Department has provided a list of
the results along with an account of which discriminatory provisions are
not intended to be changed and why.[7]
The Bills Digest for the Same-Sex Relationships (Equal Treatment in Commonwealth
Laws—Superannuation) Bill 2008 (the Superannuation
Digest) contains further historical detail looking at the background
to the Bills in the Parliament prior to the 2007 election.[8] This Digest presents a telescoped view of the
matter. The shorter version is also appropriate because this Bill has
excited fewer passions than the first (Superannuation) Bill. The novelty
of the provisions and the question of how quickly the Bill should be passed
attracted significant press attention at the time, whereas the more detailed
nature of the current Bill does not seem to have caused the same degree
of interest.
The submissions to the Senate inquiry have been fewer on this occasion.
A significant majority have supported the Bill (both from organisations
and individuals) and expressed a desire to have the Bill passed quickly.
There were, however, 6 408 signatories to an open letter from FamilyVoice
Australia, expressing serious concerns regarding the Bill, on the grounds
that it would undermine the unique position of marriage and would not
benefit children.[9] There
were also a wide variety of submissions which, while sympathetic to the
Bill’s aim, had a range of suggestions for improvement. Further details
are provided below.
One of the difficulties faced by those making submissions was, once again,
the shortness of time available for consideration of the Bill’s provisions.
It is a significant and lengthy Bill with far-reaching ramifications,
and a number of submissions made the point that in the time frame they
had been unable to consider matters appropriately. The Law Council of
Australia simply commented that it ‘regrets that due to the short time
frame for making submissions on the Bill it has been unable to provide
more detailed comments,’ but that it maybe be able to consider definitional
issues ‘in a more reasonable time frame.’[10]
Similarly the Tasmanian Gay & Lesbian Rights Group commented:
We believe we could have provided the inquiry with
more relevant information if there had been more time available. The
short duration of this inquiry was quite inadequate for the important
issues at stake. [11]
While Professor Parkinson was even more terse on the matter:
It is, in my view, unreasonable to expect the Senate
Committee to sort out the mess being created by this Bill. The time
being given to the inquiry is too short, and the problems too major.[12]
The debates on the Bill have focussed heavily on the language used in
the Bill. There are also more specific concerns regarding the Bill’s operation
and the matters covered in the accompanying material. Details on substantive
matters raised in the submissions are provided below.
As explored in the Superannuation Digest, the Coalition seems to have
two strands of thinking on these matters, one of which is more enthusiastic
and supportive of the changes and the other of which has reservations,
particularly with respect to the impact on the standing of marriage.
The official position of the Coalition articulated in proposed amendments
to the Bill(s) has been to affirm the importance of marriage and to seek
to avoid discrimination on the basis of sexuality, to recognise the rights
of children living in same-sex households, and to seek to have the rights
and status of people in interdependent relationships other than same-sex
relationships recognised and protected.
The Greens strongly support the proposed changes and would go further
than other parliamentary parties as they also support same-sex marriage.
Family First specifies its support for heterosexual relationships in
its statement on ‘Family’ and is recorded by the Australian Christian
Lobby as being opposed to laws which give particular recognition to same-sex
couples: ‘Family First will not give same-sex couples any special rights
not available to other Australians.’ The web-site goes on to comment ‘Marriage
is the ideal – it is the best form of relationship society can aspire
to – and Family First is passionate about protecting marriage, strengthening
marriage and promoting marriage.’[13]
In South Australia the Family First party has supported amendments to
superannuation legislation to include ‘interdependent relationships’.[14] On the related Superannuation
Bill Senator Fielding is reported to be considering his position, while
Senator Xenophon is reported as being broadly in support of the Bill’s
intentions.[15]
Despite the seemingly broad based support for the inclusion of same-sex
couples into our legislative framework, the question as to whether these
provisions will undermine marriage is nevertheless posed by some.[16] The question stems from a concern
that the Bill may not preserve the particular position of significance
given to marriage.
At this point in history, marriage has been given a uniquely privileged
economic position. If the status of marriage derives from the unique or
exclusive nature of its privileged economic position then the Bill could
be seen to lower the status of marriage by distributing these privileges
more broadly, rendering them no longer unique to marriage. (It should
be noted this is a process which is already well underway through the
recognition of de facto relationships.) However not everyone regards marriage
as deriving its significance from its economic position.
Marriage can be seen as having significance in the moral or religious
sphere as well as the legal or economic sphere. As a result of this multi-faceted
existence a change to the unique treatment of a married person in one
sphere need not affect the significance of marriage in another sphere.
The submissions which support heterosexual marriage frequently talk of
studies which show that marriage relationships are longer lasting than
de facto or same-sex relationships, also that children flourish more under
heterosexual parenting arrangements and that
No matter how intense they may appear to be, same-sex
relationships cannot be considered the equivalent of marriage. They
confer none of the unique benefits of marriage and family on Australian
society.[17]
The submissions to the inquiry on this Bill have frequently raised a
different question with respect to marriage and same-sex relationships.
Many of the submissions argued that marriage should be open to same-sex
couples. The Human Rights Law Resource Centre explores the international
jurisprudence in these areas and concludes that it would be appropriate
to allow same-sex people to marry, or failing that to establish a national
register of relationships.[18]
Similarly the NSW Council for Civil Liberties,[19] the NSW Young Lawyers[20]
and Liberty Victoria[21]
all argue that marriage should be an available option to same-sex couples,
while the Coming Out Proud Program argues that without access to marriage
same-sex couples will have fewer incentives to participate fully with
society’s rules:
What is supposed to be a long awaited removal of discrimination
and injustice against same sex relationships seems to have turned into
a cynical move to raise additional revenue from a section of the community
that has been discriminated and vilified against for such a long time
without equity in what is for many same sex couples the most important
ability to solemnise and have recognised by the community their relationship.
Raising revenue on the basis of ‘de facto’ same sex relationships is
a cruel insult…
Without the recognition of same sex marriage in the
legislation same sex couples will continue to be cynical of a tax imposition
without the equality granted to heterosexual couples. Without this equality
there will be a strong tension and avoidance of the negative tax and
financial implications of the new legislation leading to social disobedience.[22]
The Bill allows a same-sex couple to be recognised as being in a de facto
relationship if they have a registered relationship under State or Territory
law. This Bill strengthens these provisions over the Superannuation Bill
which only recognised registration as indicative of being in a de facto
relationship. The Explanatory Memorandum of this Bill also stipulates
that only same-sex and heterosexual registered relationships will be given
recognition under the Bill’s provisions.[23]
The modification of the provisions being applied indicates that the government
is improving the drafting being used in these Bills as matters progress.
As well as tightening the treatment of which laws will be prescribed it
would also seem that the government has heeded the calls made to have
registered relationships treated in the way they now are being treated
(i.e. as definitive of a de facto relationship). Wayne Morgan, Judy Harrison
and Miranda Stewart all called for changes along the lines taken in the
current Bill, suggesting that the changed approach would promote certainty,
reduce dispute, save legal costs and court time. It would also be more
dignified and less intrusive.[24]
Another recurring issue raised in the submissions for this inquiry is
the proposition that registered relationships should not be defined as
a sub-category of de facto relationships since there has been a decision
taken to formalise and publicly acknowledge the relationship. It has been
proposed that, rather than being grouped with de facto relationships,
registered relationships should be in a category of their own, just as
marriage is.
For some of the submissions supporting same-sex marriage the ‘next best’
solution is the creation of a national register of relationships. Many
other submissions which did not discuss same-sex marriage supported the
establishment by the Commonwealth of a national register of relationships.[25]
Only some of the States/Territories have this facility available to same-sex
couples so there will be many same-sex couples who do not receive the
benefits of the Commonwealth’s definitional usage (which would include
the ease and rapidity of establishing one’s relationship status). While
submissions have called on the Commonwealth to take a hand, the Commonwealth
Attorney-General has stated that the federal Government strongly supports
and indeed thinks it would be a good thing if states and territories would
agree upon a uniform system of registration of same sex relationships;
indeed close personal relationships, along the lines of the Tasmanian
or Victorian models.[26]
However there are currently constitutional limitations on the Commonwealth’s
capacity to generally regulate interdependent relationships, but a referral
of State power[27] could
allow for what Mr Morgan refers to as the ideal situation whereby the
Commonwealth regulates all ‘intimate relationships (both conjugal and
interdependent).’[28]
He argues this would provide a ‘rational and logical basis on which to
achieve national uniformity’.
A thought-provoking honours thesis has also been submitted to the Senate
Inquiry exploring the benefits of a more general and universal relationships
register at a Commonwealth level.[29]
Finally Professor Stewart argued, as does the Australian Coalition for
Equality[30] that the
legislation should allow for the recognition of relationships registered
overseas in appropriate legislative frameworks.[31]
As mentioned above the Coalition has suggested that not only same-sex
relationships should be covered but the Bill should also cover interdependent
relationships. There have been objections to this on the grounds that
it lessens the status of same-sex relationships, and that the issues raised
by the discussion of interdependency are too complex and inappropriate
to be conducted in this context.
An interdependency relationship is one where two people:
- have a close personal relationship, and
- they live together, and
- one or each of them provides the other with financial support, and
- one or each of them provides the other with domestic support and personal
care.[32]
Those in such a relationship are classed as ‘death-benefit dependents’
in relation to the deceased superannuation benefits and can also access
taxation concessions.[33]
The classic example of an interdependency relationship is given as two
sisters living together and supporting each other but not satisfying the
criteria for a ‘couple relationship’.
There is a critique of the interdependency provisions that identifies
an inequality of treatment for same-sex couples who must establish interdependency
on the death of one of the partners as compared with the treatment of
opposite-sex relationships.[34] The HREOC Report also argued that the application of the interdependency
provisions in relation to accessing superannuation death benefits entailed
unequal treatment of surviving partners of same and opposite-sex couples.[35]
The fact that all four categories itemised above must generally be satisfied
is identified as problematic. A traditional understanding of a ‘relationship’
would generally allow for a couple to live apart for a time, or to financially
independent of each other, but this would create difficulties with satisfying
the cumulative criteria. There is apparently some scope in the relevant
Regulations for the criteria of ‘domestic support and personal care’ to
be less significant when the other three criteria are established,[36]
however one commentator points out that it may therefore be more difficult
for the ‘happy and healthy’ to establish an interdependency relationship
than those who are not.[37]
Certainly HREOC has indicated a view that to extend interdependency coverage
under this suite of legislation is inappropriate:
Coverage for interdependent relationships is bad policy
- firstly because it diminishes the regard in which a same-sex relationship
is held, and secondly, because the broader group of people in interdependent
relationships is much harder to define.[38]
The debates on this topic have been a little confused, because the question
of recognition for interdependent relationships has been equated with
treating same-sex couple as interdependent couples. There is no need for
the recognition of interdependency to mean that same-sex couples are treated
the same as interdependent couples. It may be important to give recognition
to interdependent relationships, and for this to happen sooner rather
than later, but this does not mean that same-sex relationships need to
operate under the same definitions.
Interdependent relationships may face the same need for recognition however,
as HREOC has identified, it may be that the breadth of relationships that
satisfy the interdependency criteria need to have the additional bureaucratic
parameters imposed, whereas the nature of same-sex relationships as being
akin to a ‘conjugal’ relationships, may obviate the need for the additional
criteria.[39]
Wayne Morgan and Miranda Stewart, both leading academics in the area,
have argued that recognition of interdependent relationships is a legitimate
and important issue to consider, however members of same-sex relationships
do not ‘fit’ the interdependence criteria and they should be treated in
a distinct manner. There is no need for the recognition of forms of interdependency
to render the recognition of same-sex relationships more complex.
In the Second Reading Speech for this Bill Mr McClelland comments that
such relationships are:
…difficult to define. There is a lack of reliable
data on the number of relationships, dependency and interdependency
are a matter of degree and determining where to draw the line would
be difficult, and recognising interdependent relationships may not be
appropriate in all situations…. 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.[40]
The issue that has emerged as the most contentious is the definition
of children as a ‘product of the relationship’. The use of the phrase
has been criticised on legal grounds and has struck many contributors
to the debate as offensive. The term ‘product’ is traditionally associated
with a manufacturing process or a commodity, although Professor Stewart
points to a definition which relies on the concept of a product being
‘a result of an action or process’.[41]
Professor Stewart goes on to recommend that the Explanatory Memorandum
should include further examples or explanation about a requirement of
consent in the non-biological partner and the timing of this consent,
asking is it ‘at the date of conception? Or Birth?[42]
The use of the term ‘product’ could be remedied by a revised approach
to the drafting.[43] However
both Professors Parkinson and Millbank have expressed confusion or concern
as to what, exactly, the legislative drafting intends to achieve.
Professor Parkinson observes:
As a professor of law, I have very little idea what
the Government intends by the language it has chosen to cover children
who have a connection with a same-sex relationship. I can only offer,
at best, some possible interpretations. It is at least clear from the
Bill that the Government only intends to include children who have a
biological connection with at least one of the partners.
While Professor Millbank has more detailed concerns:
I am deeply concerned that the new category of child
as a “product of the relationship” will cause confusion and uncertainty
to such an extent that it may not ultimately help the families it is
intended to benefit. The definition contains a fundamental contradiction:
it reflects state and territory parentage presumptions for [assisted
reproductive technology] families (without however articulating them
with the same precision) at the same time as it contradicts them by
granting ad hoc coverage of commissioning parents in surrogacy arrangements,
without actually according them parental status. Prioritising the genetic
link over the legal relationship in certain circumstances runs counter
to the prevailing trend and may have unintended consequences for the
majority of families formed with the use of donor gametes who are not
surrogacy families. In short the same definition pulls in opposite directions
to achieve different aims.[44]
The introduction of an entirely novel legal concept seems bound to create
some difficulties, if not with the drafting choices, then also with the
actual concepts involved.
The pre-existing definitions which incorporate adopted children and other
categories will remain, with the changes aimed to incorporate children
specifically born into same-sex relationships. Professor Millbank, an
expert in different forms of family, makes the suggestion that the legislation
should have provisions that are more flexible:
[Recommendation 3] Allows for these formal categories
of parent to be augmented by a form of flexible purposive recognition
as needed according to context.
It has always been the case that certain areas of
law have broader familial categories that extend beyond legal or biological
parent-child relationships. Such categories include “child of the household”,
“dependant” or “loco parentis”. These definitions occur in specific
contexts in which the legislative purpose is served by a broad rather
than narrow approach.
Such a flexible approach is very useful to augment,
rather than replace, the clear categories of parent-child relationship
outlined above. [45]
In relation to this debate about the definition of a child, it is of
note that the Government has more recently announced their intention to
amend the Family Law Amendment Bill that would deal specifically with
how children are recognised for the purposes of that Act. At the hearings
held by the Senate inquiry an officer from the Attorney-General’s Department
told the Committee that in the light of those amendments the Government
would be considering whether there are ways to adopt those amendments
or bring them across to other Bills that are currently dealing with same-sex
reform.[46] This would avoid the current
incompatibilities between the definitions used in the Family Law Act and
the Bill.
There are amendments made to the Sex Discrimination Act 1984 (the
SDA) which are discussed below in the Main Provisions. These amendments
do not in any way reflect a substantive insertion of anti-discrimination
principles covering same-sex issues. Nor is there any active proposal
to cover issues of sexuality within the pre-existing anti-discrimination
legislation. This has led to some concerns being expressed, for instance
the Australian Human Rights Law Resource Centre points out that HREOC
(as it then was) had recommended the enactment of ‘sexuality discrimination’
legislation along the lines of the SDA and the Centre recommended to the
Senate Committee that it engage government to draft new legislation. It
was particularly concerned to have legislative protections which would
protect workers from discrimination based on sexuality in employment.[47]
The submission from the Lesbian and Gay Solidarity (Melbourne) comments
LGS believes that if this Bill passes into law, it
will in no way reduce homophobic discrimination but simply increase
the impact on same-sex age pensioners, people who are HIV-positive and
lesbian mothers, all who share their lives with another of the same
sex…. It’s a great pity that the federal government does not state explicitly
in this Bill that it is illegal to discriminate against lesbian, gay,
and transgender people especially in the provision of any aged care
service whether in the home or in an institution either public or private.
[48]
Other groups, such as the Gay and Lesbian Rights Lobby (based in NSW),
also support ‘the enactment of federal discrimination legislation to protect
from discrimination on the basis of sexual orientation and gender identity.’[49]
Some of the more telling submissions come from agencies who work in the
welfare field. These agencies are acutely conscious that some of the most
significant economic impacts of the Bill will be experienced by members
of same-sex couples who will have their access to welfare payments limited
(see Main Provisions Social Security Act 1991 below). They identify
that in the experience of those concerned there will be something ironic
about having discriminatory measures, which may have been in place all
their life, reversed, simultaneously with a resultant cut back in welfare
support.
The effect will be more acute in the case of members of same-sex couples
who are aged. Having potentially been excluded throughout their lives
from a range of tax rebates, concessions, being ineligible for employment
rights such are carer’s leave and suffering from the range of ‘systemic
discrimination’ identified by HREOC there will be a great irony in having
their aged pensions cut back on the basis of their sudden equality after
they have ended their economically productive life without having had
the various benefits offered to members of a couple. The proposed changes
are focussed on formal equality, however substantive equality may not
be effected in some cases.
The problem is summarised by the Northern Rivers Community Legal Centre
in a section called ‘The need to Grandfather the Centrelink changes’:
The first concern was that there is a very limited
period of time for couples prepare for their changed financial circumstances.
This was seen as particularly problematic for couples reaching retirement
age in the next few years. This is the generation that felt the full
force of homophobic prejudice and lawful discrimination. Often members
of this generation were precluded from achieving financial security,
as many professions were closed to them and they risked dismissal from
most jobs if their sexuality became known. Due to social pressures,
many gays and lesbians were unable to form long-term relationships,
thus reducing their financial capacity and resilience.[50]
This submission went on to tell the story of a teacher who was approaching
retirement age, had taught in a sympathetic but not well paying school
for the sake of avoiding homophobia and was in a same-sex relationship
with a woman who had been sacked from her position with a religious organisation
when she ‘came out’, had suffered social ostracism, and was now reliant
on the disability pension because of her resultant ‘ongoing mental health
issues’.
The proposal that these women’s welfare payments should be cut back at
this stage of their lives as a result of the Bill’s changes is challenging.
The submissions that deal with these issues recognise that it’s important
to ensure that equality is, eventually, complete, but for the aged in
particular it may be difficult to rectify the economic damages that have
occurred through a myriad of provisions which have excluded them over
a long period – from being excluded from the flexibility of the medicare
levy surcharge to being barred from various employment opportunities.
To cater for this difficulty a number of submission recommend either
a 5 year period during which adjustments can be made before the Centrelink
changes apply to same-sex couples, or an optional application, or, in
the case of older people the National Welfare Rights Network, a recommendation
that older same-sex couples be exempted from these provisions, much as
women have had a staggered entry into a retirement age which will be the
same as a man’s.
The problem is not simply historical. It is well-documented that homophobia
exists in our communities at the present time and this Bill will not immediately
remedy such attitudes and the consequential problems.[51] There are many agencies who
are identifying difficulties that will be experienced by members of same-sex
couples who receive welfare benefits, both on the grounds of privacy and
people’s understanding of the rules. A frequent recommendation concerned
the need for adequate training and the need to apply the new rules with
sensitivity.
This section provides an explanation of the key standard definitions
used in the Bill. They are referred to as the ‘standard definitions’ throughout
the Digest.
The standard definitions fall into two categories. The first is those
definitions that are to be inserted into the Acts Interpretation Act
1901 (AIA) and applied in the relevant legislation as required, namely
‘de facto partner’ ‘de facto relationship’ and ‘registered relationship’.
The other category consisting of definitions such as ‘child’ and ‘parent’
are not included in the AIA and instead are to be set out in each relevant
Act. Some of these commonly used definitions are slightly modified or
extended to fit the particular piece of legislation.
Proposed section 22A of the AIA (item 1, Schedule 2) provides
that a person is the de facto partner of another person where:
- the person is in a registered relationship with the other person under
section 22B, or
- the person is in a de facto relationship with the other person
under section 22C.
Significantly, a de facto partner can be of the same sex or a different
sex.
The meaning of ‘de facto partner’ in the AIA is only to be applied in
legislation that specifically draws on the AIA definition.
Under proposed section 22B of the AIA (item 1, Schedule 2)
a person is in a registered relationship with another
person if the relationship between the persons is registered under a prescribed
law of a State or Territory as a prescribed kind of relationship. The
Explanatory Memorandum states that provisions of state and territory laws
that provide for registration of ‘caring’ and ‘interdependent’ relationships
will not be prescribed for the purposes of this definition in the AIA.[52]
Under proposed section 22C of the AIA (item 1, Schedule 2)
a person is in a de facto relationship with another
person if the persons:
- are not legally married to each other; and
- are not related by family;[53] and
- have a relationship as a couple living together on a genuine domestic
basis.
In determining whether two persons have a relationship as a couple, all
the circumstances of their relationship are to be taken into account,
including any or all of the following:
a) the duration of the
relationship
b) the nature and extent
of their common residence
c) whether a sexual
relationship exists
d) the degree of financial
dependence or interdependence, and any arrangements for financial support,
between them
e) the ownership, use
and acquisition of their property
f) the degree
of mutual commitment to a shared life
g) the care and support
of children
h) the reputation and
public aspects of the relationship.
No particular finding is required in relation to any one of these circumstances
in deciding whether the persons have a de facto relationship. The decision
maker therefore has a significant discretion.
Two people can still be living in a de facto relationship despite a temporary
absence from each other or an absence due to illness or infirmity (proposed
subsection 22C(4)).
A de facto relationship can also exist between two people where one partner
is legally married to someone else or, or is in a registered relationship
with someone else or is in another de facto relationship, (proposed
subsection 22C(5)).
The Bill uses a new expanded definition of child.[54] It provides that someone will
be considered to be a person’s child where the child is the product of
a relationship (either opposite-sex or same-sex). To be a product of the
relationship, the child must be either the biological child of at least
one of the persons in the relationship or must be born to a woman in the
relationship.
The use of the term ‘product of the relationship’, is designed to encompass
children who are the result of a same-sex couple deciding to have children
by artificial conception using donated gametes for one or both of the
genetic parents. It also caters for situations where the mother carries
a child whose genetic material has been donated and does not come from
the mother.
The definition is inclusive, meaning that the pre-existing definitions
which incorporate adopted children and other categories of children will
remain, with the changes aimed to incorporate children specifically born
into same-sex relationships and children of all de facto relationships
conceived through surrogacy arrangements.
The Explanatory Memorandum provides a range of examples.
The definition of ‘child’ has been one of the most controversial aspects
of this Bill. The reader is referred above to the Background section and
the heading Children for further comment.
The commonly used definition of parent provides that someone is a parent
of a person if the person is his or her child because of the definition
of child referred to above.[55] This definition is inclusive and does not limit who can be a
parent of a person for the purposes of the Act to be amended.
Stepchild
The definition commonly used in the Bill states that a stepchild includes
a child who would be the stepchild of a person who is the de facto partner
of a parent of the child except that the person is not legally married
to the person’s de facto partner.[56] The definition is inclusive meaning it does not exclude pre-existing
definitions which apply to stepchildren of a husband or wife by a former
union. This expanded definition is designed to ensure that stepchildren
of both opposite-sex and same-sex de facto relationships are recognised
for the purposes of the relevant legislation.
Step–parent
The definition of step-parent provides that someone is a step-parent
of a person if the person is his or her stepchild because of the definition
of stepchild referred to above.[57] This definition is inclusive and does not limit or exclude existing
meanings of a step-parent.
Family relationships,
related by family, or relatives
Many of the amendments refer to a person’s family, relatives, or family
relationships. There are a range of definitions used to encompass family
relationships involving same-sex couples.
In one of the more commonly used definitions ‘family relationships’ are
defined to include:
- relationships between de facto partners (as defined in the AIA)
- relationships of child and parent that arise from the standard definition
of child, and
- relationships traced through either of these types of relationships.
The definition is not exclusive but rather extends existing meanings
of family relationships.
Commencement: The day after Royal Assent.
Australian Meat and Live-stock Industry Act 1997
The Australian Meat and Live-stock Industry Act 1997 (the AMLI
Act) provides the structural arrangements of the red meat and livestock
industry.
Item 1 amends the definition of ‘associate’
in section 3 of the AMLI Act. The existing definition currently provides
that an associate includes the subject person’s spouse or de facto
spouse. Currently there is no definition of spouse or de facto spouse.
The proposed amendment provides that an associate includes a person’s
spouse or ‘de facto partner’. The standard definition of de facto
partner in the AIA is relied on.
The purpose of the amendment is to broaden the definition of associate
to include same-sex partners. Its effect is relevant to section 25A of
the AMLI Act. Under section 25A if the Secretary refuses to grant
or renew a licence to a person or suspends or cancels an existing licence,
he or she can also take action in relation to the licence of an associate
of a person against whom such action was taken— an associate will now
include same-sex partners.
Farm Household Support Act 1992
The Farm Household Support Act 1992 (the FHS Act) regulates the
provision of income support and advice to farmers who may not have a long
term productive, sustainable and profitable future in the sector.
The amendments in items 2 and 3 would broaden the definitions
of ‘armed services widow’ and ‘armed services widower’ so that they include
same-sex and opposite sex de facto couples as well as married couples.
The amendments would affect subsections 12(3) and (4) of the FHS
Act which exclude armed services widows and widowers from receiving farm
household support and other relief payments in certain circumstances.
Schedule 2—Attorney-General
Commencement: Most amendments commence the day after Royal Assent.
Item 1 inserts definitions of ‘de facto partners’, ‘registered
relationships’, and ‘de facto relationships’ into the Acts Interpretation
Act (AIA). The definitions are the basis for many of the amendments
to other legislation contained in the Bill. For further discussion see
the ‘Key terms used throughout the Bill’ section above.
The Administrative Decisions (Judicial Review) Act 1977 (ADJR
Act) establishes procedures for judicial review of administrative decisions.
Schedule 2 to the ADJR Act lists classes of decisions which are exempt
from the requirement under section 13 to provide a written statement of
reasons for a decision. Paragraph (d) of the Schedule provides for a number
of exemptions from section 13 for certain decisions made under the Migration
Act 1958. Item 2 is a minor technical amendment. It amends
paragraph (d) to ensure that the terms ‘enter Australia’, ‘spouse’,
‘de facto partner’ and ‘relative’ have the same meaning as in the Migration
Act.[58]
The Age Discrimination Act 2004 prohibits discrimination on the
basis of age. The amendments in the Bill affect section 29. This section
establishes that it is unlawful to discriminate on the grounds of age
when a person is offering to provide accommodation to another person,
except where the accommodation that person is offering is being resided
in by that person or their near relatives. Items 4-8 extend who
is to be considered a ‘near relative’ to encompass same-sex couples and
the children of such relationships. The amendments draw on the standard
definitions of ‘child’, ‘de facto partner’, ‘parent’, and the tracing
rule for relatives.
The Australian Federal Police Act 1979 allows, amongst other things
for the restraint of the property of an AFP employee convicted of a corruption
offence, where that person has been paid a Commonwealth funded superannuation
benefit. The property that may be restrained includes property that is
subject to the effective control of the person. In determining whether
or not property is subject to the effective control of a person, a court
may have regard to, among other things, the family relationships
between persons having an interest in the property and other persons.
Item 9 inserts into section 42F a definition of family relationship
to include the following:
- relationships between de facto partners
- relationships of child and parent, and
- relationships traced through these types of relationships.
The standard definitions of child and de facto partner are
relied on.
The Bankruptcy Act 1966 sets out the law relating to the administration
of personal insolvencies in Australia.
The proposed amendments in the Bill will expand who is considered to
be a ‘related entity’, ‘close relative’ and a ‘family member’ of a bankrupt
under the Bankruptcy Act for the purpose of dealing with a bankrupt’s
estate. Amongst other things the amendments:
- insert standard definitions of ‘child’ (item 11),
‘de facto partner’ (item 13), ‘parent’ (item 15), ‘step
child’ (item 18),
- remove the definition of ‘de facto spouse’ (item 14), and
- insert the standard tracing rule for families (item 19, proposed
subsection 5(6)).
A number of provisions in the Crimes Act 1914 refer to terms such
as parent or relative. For example, the rules for conduct of a strip search
in section 3ZI provide, among other things, that a strip search of a person
who is at least 10 years of age but under 18 years of age must be conducted
in the presence of a parent or guardian.
The effect of the amendments made by items 34 to 40 of
this Schedule is to expand the definition of who is a parent or relative
for the relevant provisions in the Crimes Act. For example item 34
inserts the standard definition of ‘child’ into subsection 3(1) and
item 35, the standard definition of ‘de facto partner’. Item 38
inserts a tracing rule into section 3 that will allow the relatives of
a person to be traced through the definitions of ‘child’ and ‘de facto
partner’. The definition of ‘parent’ is to be repealed and replaced with
the standard definition (items 40 and 36).
The Crimes (Superannuation Benefits) Act allows, amongst other things,
for the restraint of the property of a Commonwealth employee convicted
of a corruption offence where that person has been paid a Commonwealth
funded superannuation benefit. The property that may be restrained includes
property that is subject to the effective control of the person. In determining
whether or not a property is subject to the effective control of a person,
a court may have regard to, among other things, the family relationships
between persons having an interest in the property and other persons.
The amendments will broaden the meaning of family relationships to encompass
same-sex couples and the children of such relationships.
The amendments essentially replicate the amendments to the Australian
Federal Police Act 1979 referred to above.
The Customs Act 1901 contains several references to a person’s
family relationships. These relationships can be taken into account for
purposes such as valuing of goods, establishing effective control of goods
and issues regarding persons being detained by a Customs officer. The
amendments in the Bill are designed to expand the types of family relationships
to include same-sex couples and their children. Items 43 and 44
insert the standard definitions of ‘child’ and ‘parent’ into subsection
4(1) of the Customs Act. Item 45 inserts proposed section 4AAA.
It defines members of a person’s family for the purposes of the Customs
Act to be traced through the definitions of child and de facto partner.
The High Court Justices (Long Leave Payments) Act 1979 makes provision
for payments in lieu of long leave on the retirement or death of Justices
of the High Court. The effect of item 53 is to allow that on the
death of a Justice payments of unpaid leave could be made to de facto
partners (as well as to a surviving spouse). Where a Justice leaves more
than one surviving spouse or de facto partner the Attorney-General has
the discretion to distribute the amount between them (item 54, proposed
subsection 5(2A)) The standard definition of de facto partner is relied
on.
Items 57–60 would make equivalent amendments to the Judges
(Long Leave Payments) Act 1979 that will affect surviving spouses
and de facto partners of deceased Federal Court and Family Court judges.
The Passenger Movement Charge Collection Act 1978 is an Act relating
to the passenger movement charge imposed on people leaving Australia.
The amendments in this Schedule repeal the existing definition of ‘child’
and replace it with the standard definition of ‘child’ (item 61);
insert the standard definition of ‘de facto partner’ (item 62);
repeal and replace the definition of ‘spouse’ so as to include de facto
partners (item 63); and insert the standard definition of ‘step
child’ (item 64).
The amendments effect the operation of section 5 and will expand the
range of exemptions from the passenger movement charge.
The Proceeds of Crime Act 2002 provides a scheme to trace, restrain
and confiscate the proceeds of crimes against Commonwealth laws. The
proposed amendments to this Act are similar to those for other legislation
under this portfolio. They include insertion of the standard definitions
of ‘child’, ‘family relationships’, ‘de facto partner’ and ‘parent’.
Items 73 to 75 insert standard definitions of child, parent
and family into the Service and Execution of Process Act 1992.
This Act enables process commencing civil and criminal proceedings in
state and territory courts to be served throughout Australia. It also
establishes procedures by which judgements given by a court in one State
or Territory may be enforced in another State or Territory.
Sex Discrimination Act
1984
The Sex Discrimination Act 1984 (the SDA) prohibits discrimination
on the basis of sex, marital status or pregnancy discrimination in various
areas of public life. It also prohibits discrimination on the basis of
family responsibilities in the case of dismissal from employment.
Items 76 through to 81 insert the standard definitions
of ‘parent’, ‘child’, ‘de facto partner’, ‘spouse’, ‘stepchild’ and the
‘tracing rule’ into subsection 4A(2) and (3) of the SDA (the definition
section which specifically applies to the meaning of family responsibilities).
Item 82 articulates the international instruments that the Commonwealth
is relying on to attract constitutional power under the external affairs
power. These are the
- International Covenant on Civil and Political Rights (ICCPR);
- International Covenant on Economic, Social and Cultural Rights (ICESCR);
- Discrimination (Employment and Occupation) Convention, 1958 adopted
by the General Conference of the International Labour Organization on
25 June 1958 (ILO 111), and
- Convention on the Rights of the Child (CRC).
The status of same-sex discrimination is accepted by many as being well
established in international law, and the submission from the Human Rights
Law Resource Centre thoroughly explores these issues.[59] However it is not yet fully established in
the international arena as a fully fledged area of prohibited discrimination.
The sexual-preference ground has not been explicitly articulated in the
international field and while general principles of anti-discrimination
and human rights may cover the area the decision which incorporated sexual
preference into ‘sex’ will not necessarily be followed in the future.[60]
The Explanatory Memorandum implicitly reflects this limited status in
the international arena when it repeatedly comments on the international
provisions that ‘Discrimination on the ground of sexual preference is
considered to be prohibited by these provisions.’
Items 83 and 84 insert provisions designed to enable State
and Territory anti-discrimination laws to operate as fully as possible.
The provisions being inserted into the SDA will have a limited impact
and certainly do not reflect any intention to comprehensively prohibit
same-sex discrimination in and of itself.
The Australian Human Rights Commission (formerly HREOC, now AHRC), and
the Australian Human Rights Law Centre both comment to the effect that
they are disappointed that the Bill only proposes to remove discrimination
against same-sex couples on the ground of family responsibilities, not
on the grounds of marital status or sexuality. Specifically AHRC says
The Commission is disappointed that the amendments
to the [SDA] only remove discrimination against same-sex couples in
relation to family responsibilities discrimination and not marital status
discrimination.[61]
Along with various submissions from the Senate Inquiry (which go further
in recommending comprehensive anti-discrimination legislation)[62]
the Commission recommends
The [SDA] should be amended to replace the protected
ground of ‘marital status’ with ‘couple status’. The definition of ‘de
facto spouse’ should be replaced with the new definition of ‘de facto
partner’, which this Bill inserts into the Acts Interpretation Act
1901 (Cth).[63]
The Bill does not change the primary definition of de facto in the legislation
(that definition is contained in section 4). By leaving the traditional
definition of de facto unchanged (contrary to other legislation being
modified by the Bill) the SDA will not apply its marital status discrimination
provisions to same-sex couples directly.
The Witness
Protection Act 1994 establishes a National Witness Protection Program
operated by the Australian Federal Police.
Item 85
inserts a definition of a ‘parent’ into section 3
of the Witness Protection Act. It relies on the standard definitions of
‘parent’ and ‘child’ set out above and in the usual way will extend the
range of persons who can be considered a child or parent of a person under
the Witness Protection Act.
Item 86
provides that the Governor-General may make regulations of a transitional
nature in relation to any of the amendments in the Bill.
Commencement: The day after Royal Assent.
The Australian Postal Corporations Act 1989 (the APC Act) establishes
Australia Post and regulates a range of matters, including its operations,
and dealings with postal articles and their contents.
The effect of item 2 is to insert proposed subsection 90K(6)
to expand the meaning of ‘next of kin’ to include:
- the de facto partner of the person within the meaning of the
AIA
- a child of the person, according to the standard definition of a child,
and
- anyone else who would be a relative of the person because of either
of these.
The amendment
has effect on section 90K which deals with the disclosing of information
or documents by Australia Post employees in specific circumstances.
The Broadcasting Services Act 1992 sets out different categories
of broadcasting services, datacasting services and online services, and
the regulatory framework under which they must operate.
The effect of the amendments is to expand the meaning of ‘associate’
in subsection 6(1) to include same-sex partners and their families. The
definition of ‘associate’ defines who is an ‘associate’ in relation to
a person’s control of a licence or a newspaper, or control of a company
in relation to a licence or a newspaper for the purposes of the Broadcasting
Services Act. The current meaning of associate includes the
person’s spouse (including a de facto spouse) or a parent, child,
brother or sister of the person; or a partner of the person or, if a partner
of the person is a natural person, a spouse or a child of a partner of
the person.
Item 8 inserts a definition of ‘spouse’ into subsection 6(1) and
provides that a spouse includes a de facto partner within the meaning
of the AIA. Items 6, 7 and 9 insert the standard definitions
of ‘child’, ‘parent’, and the standard tracing rule into subsection 6(1)
of the Act. Item 3 removes the phrase ‘including a de facto spouse’
from the definition of ‘associate’. These amendments are for the purposes
of broadening the definition of ‘associate’ to include same-sex de facto
partners and their families.
Item 10 is a transitional provision, postponing the effect of
the amendments for six months after commencement. The Explanatory Memorandum
states that the broadening of the meaning of ‘associate’ may have serious
implications for ownership and control of certain licences, newspapers
and companies. A six month moratorium is considered an appropriate period
of time to enable affected parties to implement measures to ensure compliance
with the Broadcasting Services Act as amended.[64]
The Telstra Corporation Act 1991 regulates a range of matters
relating to the operations of Telstra Corporation Limited, its ownership
(including the imposition of restrictions on foreign ownership), certain
employee entitlements, and transitional arrangements stemming from the
sale of the Commonwealth’s equity interest in Telstra.
The effect of the amendments is to expand the meaning of ‘associate’
in clause 5 of the Schedule of the Telstra Corporation Act so that the
term ‘relative’ would include same-sex partners and their families. The
definition of ‘associate’ defines who is an ‘associate’ for the purposes
of the ownership restriction provisions in the Act. An associate includes
a relative of a person, and a relative currently means the
person’s spouse; or another person who, although not legally married to
the person, lives with the person on a bona fide domestic basis
as the husband or wife of the person; or a parent or remoter lineal ancestor
of the person; or a son, daughter or remoter issue of the person; or a
brother or sister.
The amendments (items 12–17) remove the reference to a non-marital
domestic relationship and replace it with the standard definition of de
facto partner; remove references to ‘son’, ‘daughter’ and replace with
the term ‘child’; insert the standard definitions of ‘child’, ‘parent’,
and insert the standard family relationships tracing rule.
Item 18 is a transitional provision, postponing the effect of
the amendments until six months after commencement.
Commencement: The day after Royal Assent.
This Schedule deals with instances where entitlements are specified in
defence and defence related legislation and where there is a consequent
need to amend legislation to include same-sex partnerships.
The Defence Force (Home Loans Assistance) Act 1990 provides for
the payment of a subsidy on home loan interest for members and former
members of the Australian Defence Force who served in the ADF prior to
July 2008. Currently the subsidy may be passed to the surviving widow
or widower of a member or former member in receipt of the subsidy.
Item 2 repeals the section 3 definition of a child as being the
child, stepchild or legally adopted child of the person, and being under
16 or a student. The new definition does not limit who is to be considered
a child of a person for the purposes of the Act. The Bill substitutes
a definition which, while encompassing the previous definition, expands
it to also include a child who is the product of a relationship the person
has or had as a couple with another person, whether that person is of
the same-sex or of a different sex. At the end of section 3, item 9
of the Bill adds a rider to this subparagraph, explaining that someone
(i.e. a child) cannot be the product of a relationship unless he or she
is the biological child of at least one of the persons in the relationship
or was born to a woman in the relationship.
Item 3 inserts a reference to the Acts Interpretation Act 1901
definition of ‘de facto partner’ which replaces the definition of ‘spouse’,
repealed by item 5. ‘De facto partner’ has an extended meaning
to include couples in a same-sex relationship as well as opposite sex
relationships outside marriage.
Item 4 inserts a definition of parent which does not limit who
is to be considered a parent of a person for the purposes of the Act.
A parent is a parent of a person if his or her child falls under the definition
of child as defined in item 2.
Item 6 inserts a new definition of ‘surviving spouse or de facto
partner’ into section 3 of the Act.
Item 7 and item 8 repeals the definition of widow and widower
to allow for the substitution of ‘surviving spouse or de facto partner’
in relevant sections of the Act.
Item 9: see Item 2
Item 12 substitutes a new section 8 of the Act which deals
with the possibility that a deceased person might have multiple spouses
and de facto partners. In this circumstance, new subsection 8(1)
deems the partner who was living with the deceased immediately before
death to be the surviving spouse or de facto partner. This will not exclude
a partner who was not living with the deceased because of illness or a
temporary absence (new subsection 8(2).
Item 16 provides that amendments to sections 10 and 12 apply only
to scheme members who die on or after the commencement of the amendments.
Item 22 provides that amendments to sections 14, 15, 17 and 18
will only apply to scheme members who die on or after the commencement
of these amendments.
Item 23 inserts ‘de facto partner’ into existing paragraph 20(2)(d)
to extend the payment of a subsidy to an opposite or same-sex de facto
partner after the commencing day. Item 24 is a complicated and
confusingly worded application provision. It seeks to ensure that a member
in a same-sex relationship who is entitled to the subsidy prior to commencement
does not become disqualified as a consequence of the amendment.[65]
Item 35 is an application provision which is aimed at ensuring
that couples who are not currently recognised under the Act are not required
to repay the subsidy for the period following the conversion of a joint
tenancy into a tenancy in common and before the commencement of these
amendments.
The Defence (Parliamentary Candidates) Act 1969 allows Members
of the Defence Force who desire to become candidates for election as Members
of the Parliament of Australia or of a state or of certain other legislative
or advisory bodies to apply to be discharged, terminated or transferred
to the Reserves. The Act provides for the costs of removal for such members
of the ADF and their family back to the member’s place of enlistment.
Section 16 of the current Act deals with entitlements of an ADF member
who intends to stand for election to the Commonwealth or to a state parliament.
Under this section the ADF member who will be discharged, terminated or
transferred to the Reserves, is entitled to have the Commonwealth pay
for his/her travel back to the place of enlistment with members of the
family and household effects. The amendments provide definitions of those
persons who are substantially or wholly dependent on the ADF member and
who are thus entitled to removal at Commonwealth expense.
The current Act defines the member of a family simply in terms of dependency
on the member of the defence force. The amendments in item 47 keep
the reference to ‘wholly of substantially’ dependent, but also insert
definitions of members of a family to include a de facto partner and to
broaden the definition of a child, without limiting who can be taken to
be a member of a family. The amendments also allow for circumstances in
which these definitions can create family linkages which flow from these
broader definitions and which might not otherwise not be recognised; for
instance, if the non-biological parent of a child has another child of
his/her own, then the two children will be recognised as siblings for
the purposes of this section.
The Royal Australian Air Force Veterans’ Residences Act 1953 establishes
a Trust to administer a fund which provides accommodation for eligible
persons in necessitous circumstances.
Item 48 inserts the Acts Interpretation Act 1901 definition
of ‘de facto partner’ into that part of section 2 of the Act which deals
with the definition of ‘eligible person’, expanding the definition of
eligible person beyond the current confines of those who are legally married
or who are the widow or widower of an eligible person, to include same-sex
partnerships.
Item 49 adds ‘or’ to the end of paragraphs (a), (b) and (c) to
ensure that each circumstance is regarded as a separate alternative.
Item 50 repeals and replaces paragraphs (d), (e) and (f) of the
definition of ‘eligible person’ in section 2. New paragraphs (d) and
(e) substitute ‘surviving spouse or de facto partner’ for ‘widow’
or ‘widower’. New paragraphs (e) and (f) continue the recognition
of situations where a parent was dependent on a deceased former member,
but expand this to include a de facto partner of a parent in certain circumstance.
Item 51 inserts a definition of parent which does not limit who
can be considered a parent for the purposes of the Act, but includes the
situation where a child is the product of a relationship the person had
as a couple or with a third person. However, the child has to be the biological
child of at least one of the persons or the third person, or was born
to a woman in the relationship.
Item 52 inserts a definition of ‘surviving spouse or de facto
partner’ into section 2 which limits a surviving spouse or de facto partner
to someone who was in such relationship with a deceased person immediately
before the deceased’s death.
Item 53 is an application provision which provides that these
amendments will apply to a person defined as eligible in paragraphs (a),
(b) or (c) of section 2 who dies on or after the commencement of the amendments
in this Schedule.
This Act is listed at the beginning of Schedule 4 of the Explanatory
Memorandum, but no further reference is made to it.[66] It does not appear in Schedule 4 of the Bill
itself.
The HREOC Report, recommended that the Defence Act 1903 be amended
to include definitions of ‘child’, de facto partner’, ‘de facto relationship’.
‘dependant’ and to amend the definition of ‘member of a family’ to eliminate
discrimination against same-sex couples and their children in financial
and work-related entitlements areas.[67] However, this Bill does not include any amendments to the Defence
Act 1903. Access to the day-to-day entitlements which ease the burden
of service life for ADF members with dependants, i.e. for couples and
families, are not specified in legislation such as the Defence Act
1903, rather they exist at the level of defence instructions and in
the ADF Pay and Conditions
Manual (PACMAN).
Gay and lesbian citizens have been able to serve in the Australian Defence
Force (ADF) openly since 1992, however, their partners were not recognised
and had no access to entitlements until 2005. On 1 December 2005 an amended
Defence Instruction
(General) PERS 53–1 Recognition of interdependent partnerships
(DI(G) PERS 53–1) was issued under the authority of the Chief of
the Defence Force (CDF) and the Acting Secretary of the Department of
Defence. Defence Instructions (General) are issued by the Secretary and
CDF by virtue of the powers vested in them under the Defence Act 1903,
Subsection 9A(1). The previous version of DI(G) PERS 53–1 had related
to the recognition of opposite-sex de facto marriages.
The amended DI(G) PERS 53–1 detailed the extension of certain
conditions of service entitlements to ADF members in recognised interdependent
relationships, including same-sex couples. Under this instruction an ADF
member who seeks recognition by the ADF of an interdependent partnership:
must prove that his/her partner is a person who lives
in a common household with the member in a bona fide, domestic interdependent
partnership, although not legally married to the member. Where the interdependent
partnership is recognised by the appropriate Service authority, a member
may be eligible for financial entitlements and conditions of service
which apply to a member with dependents as defined in PACMAN.[68]
The concept of interdependent partners has been integrated into PACMAN’s
definition of dependants of ADF members, and both opposite sex and
same-sex couples are now eligible for entitlements such as housing, moving
and leave allowances. However, access to such entitlements rests on recognition
of the interdependent relationship by the ‘Approving Authority’, at the
level of Commanding Officers, or even Warrant Officer Class One (for recruiting
applicants), as outlined in the DI(G), and is not specified in legislation.
The DI(G) specifies that the burden of proof of the existence of an interdependent
partnership lies with the member, and requires a member to provide the
Approving Authority with a statutory declaration and four separate items
of documentary evidence that an interdependent relationship exists. It
has been pointed out that ‘this is in contrast to all other federal laws
that recognise de facto relationships without the need for any formal
step to register the relationship’.[69]
The DI(G) requires the Approving Authority to provide the member with
an explanation of why an application has been rejected, but does not specifically
refer to an avenue of appeal.
Commencement: The day after Royal Assent.
Education Services for Overseas Students Act 2000
The focus of the Education Services for Overseas Students Act 2000
(ESOS Act) is on the regulation of providers of education services
to overseas students. Registered providers and in some cases their associates
are subject to a number of obligations. An associate is defined in subsection
6(1) of the Act and can include the provider’s spouse or de facto spouse;
children and parents of the provider; children and parents of the spouse
or the de facto spouse; and siblings of the provider.
Items 1 to 5 in the Schedule
amends the term ‘associate’ by replacing the term ‘de facto
spouse’ with ‘de facto partner’; by inserting the standard definitions
of child, de facto partner and parent and amending the definition so that
the term ‘siblings’ can be traced through the definitions of ‘parent’
and ‘child’. The overall effect of these amendments is to
broaden providers’ associates to include de facto same-sex partners and
their families.
Higher
Education Support Act 2003
The Higher Education Support Act 2003 (the HES Act) provides for
the Commonwealth to give financial support for higher education through
grants and other payments principally made to higher education providers
and through financial assistance to students.
Of relevance to this Bill is the definition of ‘overseas student’. Amongst
other things, the definition states that an overseas student does not
include a New Zealand citizen, or a diplomatic or consular representative
of New Zealand, a member of the staff of such a representative or the
spouse or dependent relative of such a representative. The Bill proposes
the standard definitional amendments that will add that an ‘overseas student’
does not include de facto partners of New Zealand consular representatives
and their dependent relatives.
The Judicial and Statutory Officers (Remuneration and Allowances)
Act 1984 (the JSO Act) provides for the remuneration and allowances
payable to the holders of certain judicial and statutory offices.
Subsection 4(4A) of the JSO Act deals with travelling allowances
that are payable to Justices of the High Court if their spouses accompany
them. There is no definition of spouse in the legislation and it is therefore
unlikely that a same-sex partner would qualify as a spouse in the absence
of a definition.[70]
Item 10 inserts proposed subsection 4(4B) into the
JSO Act. It provides that ‘spouse’ includes a de facto partner
of a person within the meaning of the definition in the Acts Interpretation
Act The expanded meaning of spouse would have the effect of allowing a
Justice of the High Court to claim a travelling allowance from the Commonwealth
for a same-sex partner.
Safety, Rehabilitation and Compensation Act 1988
The main federal workers’ compensation scheme, Comcare is administered
under the Safety, Rehabilitation and Compensation Act 1988 (the
SRC Act). This Act establishes a scheme of rehabilitation and compensation
for employees of the Commonwealth, Commonwealth authorities and licensed
private sector corporations who are injured in the course of their employment.
The HREOC Report identified significant discriminatory issues in regard
to same-sex couples under the SRC Act. For example the report noted that
a same-sex partner is denied access to lump sum death benefits which are
available to an opposite-sex partner. Also, a same-sex partner is not
automatically counted for the purposes of calculating the amount of compensation
payable upon an employee’s incapacitation. A child of a same-sex couple
can generally access death benefits and will usually be counted in compensation
calculations. However, the child of a birth mother or birth father will
be assumed to have those rights, whereas the child of a lesbian co-mother
or gay co-father will need to prove those rights.
The proposed amendments in the Bill insert the relevant standard definitions
which would have the effect of providing equal access to compensation
for same-sex partners of an employee and for their families. Item 12
inserts the standard definition of ‘de facto partner’ into subsection
4(1) and item 16 extends the meaning of ‘spouse’ of an employee
or deceased employee to include a de facto partner of the employee whether
of the same or opposite sex. Items 11, 15, 17, 18 insert the key
definitions of ‘child’, ‘stepchild’, ‘stepparent’. The definition of
‘prescribed’ person’ and ‘dependant’ are also amended to reflect the inclusion
of same-sex partners and their families, and to remove outdated and gender
specific language (such as illegitimate relationships, son, daughter).
The Seafarers Rehabilitation and Compensation Act 1988 (the Seafarers
Act) establishes an industry specific scheme of rehabilitation and compensation
for seafaring employees who are injured in the course of their employment.
The HREOC Report notes that, like the SRC Act, there are significant discriminatory
issues for same-sex couples under the Seafarers Act. For example the report
noted that a same-sex partner is denied access to lump sum death benefits
which are available to an opposite-sex partner.
The amendments (items 27 to 39) essentially replicate the
amendments to the SRC Act. They include inserting the relevant standard
definitions and amending definitions of ‘spouse’, ‘dependant and ‘prescribed
person’. They have the effect of providing equal access to compensation
for same-sex partners of an employee and for their families.
Student Assistance Act 1973
The Student Assistance Act 1973 provides for the entitlement to
various forms of student assistance benefits and recovery of student assistance
debts.
Item 40 inserts the standard definition
of ‘child’ into subsection 43B(5) of the Act and item 41 amends
paragraph (a) of the definition of ‘parent’ in subsection 43B(5)
by inserting part of the standard definition of ‘parent’. The effect is
to extend who can be considered to be the parent of a person for the purposes
of waiving a debt incurred as a result of overpayment of an entitlement
paid under the Act.
Commencement: The day after Royal Assent.
The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (the
Land Grant Act) provides for the grant of land in the Jervis Bay Territory
to the Wreck Bay Aboriginal Community and for the establishment of the
Wreck Bay Aboriginal Community Council.
The amendments to the Land Grant Act are necessary because under the
current provisions of section 37 of the Act, the definitions of ‘child’,
‘parent’ ‘relative’ and ‘spouse’ mean that the operation of the Act is
confined to opposite‑sex relationships.
Item 3 is the most significant amendment. It inserts into subsection
38(1) a new definition of ‘spouse’ to include a de facto partner of the
person within the meaning of the Acts Interpretation Act. Other amendments
include insertion of the standard definitions of ‘child’ and ‘parent’
and clarification on the meaning of family relationships (items 1,
2 and 4). The main effect of these new definitions is to expand the
meaning of ‘relative’ in section 37 to include same-sex couples and their
families as relatives of registered members of the Wreck Bay Aboriginal
Community Council. Its effect would, for example have an impact on section
42 which provides that where a registered member of the Council has the
benefit of a lease of Aboriginal Land for use for domestic purposes, that
benefit is capable of transmission, by will or under a law relating to
intestacy, to a relative of the member.
Corporations (Aboriginal
and Torres Strait Islander) Act 2006
The Corporations (Aboriginal and Torres Strait Islander) Act 2006
(the CATSI Act) is an Act establishing a special regime of incorporation
for Aboriginal and Torres Strait Islander peoples that takes account of
the special risks and requirements of the Indigenous corporate sector.
Item 10 is the most significant amendment. It inserts into section
700-1 a new definition of ‘spouse’ to include a de facto partner of the
person within the meaning of the Acts Interpretation Act. This definition
further impacts on the meaning of ‘related parties’ and ‘controlling entities’
in section 293-1. Other amendments include insertion of the standard definitions
of ‘child’ and ‘parent’ and clarification on the meaning of family relationships
(items 6, 7 and 9).
By including same-sex partners and their families within these definitions,
the amendments would, amongst other things, have the effect of further
limiting the range of people who can receive benefits from companies.
For example under section 284-1 of the CATSI Act related parties
of a corporation must not receive financial benefits from the corporation
without members’ approval. The amendments would mean that company office
holders’ same-sex partners and their families would also be subject to
this provision.
Part 2
Commencement: 1 July 2009.
Items 11 to 20 all introduce the concepts of ‘relationship child’
and ‘relationship parent’ into the Act. The definition of these
terms is the same as that used in the SSA as amended by this Bill.
Items 21 to 22 introduce the concepts of ‘relationship child’
and ‘relationship parent’ into the Act. The definition of these
terms is the same as that used in the SSA as amended by this Bill.
Item 24 amends the existing definition of ‘member of a couple’
to include couple relationships registered under the law of a State or
Territory.
Item 25 amends the existing definition of ‘member of a couple’
to include same-sex couples.
Item 26 omits the term ‘marriage-like’ and replaces it with the
term ‘de facto’.
These changes to the SSA relate to determining who should be regarded
as a member of a couple for determining eligibility for and the rate of
payment of income support payments. Presently the legislation explicitly
defines a member of a couple as someone living with a member of the opposite
sex who is in a marriage like relationship with that person. The present
criteria for determining if the relationship is marriage like are set
out at length in section 4(3) of the SSA.
4.(3) In forming an opinion about the relationship between
2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii),
the Secretary is to have regard to all the circumstances of the relationship
including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets
and any joint liabilities; and
(ii) any significant pooling of financial resources especially
in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of
the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of
children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each
other; and
(ii) the assessment of friends and regular associates of the
people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage
in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that
the people provide to each other; and
(iii) whether the people consider that the relationship is likely
to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like
relationship.
Item 30 amends subparagraph 4(3)(c)(i) to read:
whether the people hold themselves out as married to or in a de facto
relationship with each other.
Item 31 amends subparagraph 4(3)(e)(iv) to read:
whether the people see their relationship as a marriage-like relationship
or a de facto relationship.
The Bill basically changes the requirement that the members of a couple
need to be of the opposite sex and replaces the term ‘marriage-like’ with
the term ‘de facto’. Similar wording in sections concerned with rate determination
will also change to be consistent with the new definition.
There are four main consequences of this change for same-sex couples:
- Presently same-sex couples are treated as single people. They are
paid at the higher single rate of payment of whichever income support
payment they receive. The amendments will mean that they will only be
eligible for the lower partnered rate of payment. The single pension
rate is currently $546.80 per fortnight compared to the partnered rate
of $456.80. Similarly the single allowance rate is $437.10 per fortnight
compared to the partnered rate of $394.40.
- For means testing purposes the income and assets of both partners
are taken into account. So if for example only one partner is unemployed
or retired they may not qualify for income support because the income
of their working partner is too high for them to be eligible for a payment.
- Certain payments are only available for single people. For example
Parenting Payment Single (PPS) (the old Sole Parent Pension) is only
available to single people who are caring for dependant children. Two
parents in a same-sex relationship have been able to both receive PPS
up until now. After the amendments take effect they will cease to be
eligible for PPS and will have to test their eligibility for another
payment such as Newstart Allowance or Parenting Payment Partnered. They
will only be eligible for the partnered rate of that alternative payment.
- Family Tax Benefit part B is paid to all sole parents with an income
of less than $150,000 per annum. Couples only receive it subject to
an income test on the income of the lower earning partner. Treating
same-sex couples as couples will mean that certain people paid as sole
parents will now be paid as members of a couple and receive less or
no Family Tax Benefit part B. The rate of Family Tax Benefit part A
may also be reduced for some same-sex couples when the income of both
partners is taken into account under the income test for that payment.
All of these consequences relate to
reduced income support for some same-sex couples. The only advantage to
them is access to bereavement payments in the event of one partner passing
away. That is why the main savings from the Bill are in the DEEWR and
FHCSIA portfolios which are responsible for most income support payments.
While it should be noted that the new arrangements will be treating same-sex
couples in exactly the same way that all opposite sex couples are treated,
there have been concerns raised to the Senate inquiry on the impact of
these provisions. For further discussion the reader is referred to the
section of the Digest called Social security and aged care issues.
Other items provide for consequential amendments to other sections of
the SSA that flow from these new definitions.
Item 35 inserts a definition
of child into subsection 5(1). This definition is used in conjunction
with the definitions of ‘relationship parent’ and ‘relationship child’
(see item 47) in new subsection 5(25) to recognise the parent-child
relationship with the person who was the same-sex partner of a child’s
biological parent when the child was born.
Item 47 inserts new subsection
5(25) which provides definitions of ‘relationship child’ and ‘relationship
parent’.
Other items provide for consequential amendments to other sections of
the SSA that flow from these new definitions.
Some items such as item 51 replace gender specific language with
gender neutral language in certain sections that refer to parents and
children.
Some items such as item 34 deal with prohibited relationships
by inserting a definition consistent with the Marriage Act 1961.
Items 42 and 43 insert into subsection 5(1) expanded definitions
of ‘step child’ and ‘step parent’ for the purposes of the SSA to include
the relationship between a de facto partner of a child’s parent and the
child. Currently this relationship is only recognised where the members
of the couple are legally married.
Commencement: Various dates: items 1–7 commence three months after
Royal Assent; items 8 to 55 commence the day after Royal Assent;
Part 3 commences the day after Royal Assent, however it does not commence
at all if Schedule 1 of the Same-Sex Relationships (Equal Treatment
in Commonwealth Laws–Superannuation) Act 2008 commences on or before
this Act receives Royal Assent.
Commonwealth Electoral Act 1918
The Commonwealth Electoral Act 1918 (the Electoral Act) establishes
the machinery and regulations for federal elections.
Items 1 and 2 insert the standard definitions of ‘child’
and ‘de facto partner’ into subsection 4(1) and items 3, 5 and
7 insert proposed subsections 4(11) and 104(11) to
broaden the meaning of next of kin and family to include same-sex family
relationships.
The amendments have a relatively minor effect but would for example allow
a person to make a request for their address not to be shown on the electoral
roll where it would place the personal safety of their same-sex partner
at risk (proposed subsection 104(11)).
Medibank Private Sale
Act 2006
The Medibank Private Sale Act 2006 (the MPS Act) allows the sale
of the Commonwealth’s equity in Medibank Private Limited. The Act has
provisions which anticipate a broad range of sale schemes that may be
chosen to affect the sale of Medibank Private.
The amendments in the Bill mainly affect Part 4 of the MPS Act that deals
with restrictions on ownership. It is directed at preventing an ‘unacceptable
ownership situation’ pertaining to Medibank Private. Essentially, this
means that one person cannot hold a stake of more than 15% of Medibank
Private.
The amendments in items 8–14 essentially expand the meaning of
‘relative’ for the purposes of the ownership provisions to include same-sex
partners and their families. The amendments rely on the standard definitions
of ‘child’, ‘parent’, ‘de facto partner’ and the standard tracing rule
for family relationships.
Item 15 is a transitional provision, providing that the amendments
do not take effect until 6 months after Royal Assent in certain circumstances.[71]
Members of Parliament
(Life Gold Pass) Act 2002
The Members of Parliament (Life Gold Pass) Act 2002 (the Life
Gold Pass Act) sets out the domestic travel arrangements for Life Gold
Pass Holders (ie former Prime Ministers, former Senators or Members) and
their spouses. The Act provides a specified number of free domestic air
trips per year for qualifying members, their spouse, or their widow/widower.
Qualifying periods for a Life Gold Pass are determined
by the Remuneration Tribunal.[72]
The Life Gold Pass Act currently only provides entitlements to a Life
Gold Pass holder’s, legally married spouse. The amendments in items
16–48 will extend the travel entitlements for spouses to include the
de facto partners (both opposite sex and same-sex partners) of Life
Gold Pass holders. Generally, this is achieved by retaining the
term ‘spouse’ in the Life Gold Pass Act for married couples and adding
the term de facto partner, as defined in the Acts Interpretation
Act, wherever the term ‘spouse’ occurs.[73]
Item 17 inserts a definition of ‘de facto
partner’ into section 4 of the Life Gold Pass Act, which provides
that a ‘de facto partner’ includes a de facto partner within
the meaning of the standard definition of ‘de facto partner’ in the
Acts Interpretation Act.
Item 18 inserts a definition of ‘surviving
spouse or de facto partner’ into section 4 of the Life Gold
Pass Act. This term replaces the terms ‘widow’ and ‘widower’, the
definitions of which are deleted by items 19 and 20.
A ‘surviving spouse or de facto partner’ of a deceased Life Gold
Pass holder means a spouse or de facto partner of the person immediately
before the Life Gold Pass holder died who:
a) was named in a nomination in force
under section 9B; or
b) in circumstances where a sitting Senator
or Member who qualifies for the issue of a Life Gold Pass dies while
in office and does not have a valid nomination under section 9B
of the Life Gold Pass Act, the surviving spouse or de facto partner
will be the person nominated previously by the Senator or Member for
the purposes of other travel entitlements administered by the Department
of Finance, or
c) where different people are named in
a nominations in force under paragraphs (a) and (b) then the most recent
nomination in force applies.
Item 24 inserts provisions
dealing with the nomination process for travel entitlements for spouses
and de facto partners under the Act. Proposed section 9A provides
that in order for the spouse or de facto partner to be entitled to
domestic return trips under the Act there must be a nomination in force
under section 9B in relation to a person’s spouse or de facto
partner. Only one spouse or de factor partner of a person may
be nominated at any time.
Proposed subsection 9B(2) sets out the requirements for a
valid nomination, namely, that it is in writing, names the spouse or de
facto partner and specifies the date of effect for the nomination. A nomination
is in force from the start day until the day the Life Gold Pass holder
revokes the nomination in writing, or the day before the Life Gold Pass
holder nominates another person as his or her spouse or de facto
partner, whichever is the earlier.
Item 42 replaces subsection 14(2) of the Act, which deals
with the formula for calculating an entitlement to domestic return trips
where an entitlement does not exist for an entire financial year.
The formula has not changed and is now in proposed subsection 14(2A)
of the Act. However, proposed subsection 14(2) provides
that where there is more than one spouse or de facto partner in a
financial year, the entitlement for the second (or subsequent) spouse
or de facto partner is limited to the lower amount of either the
pro-rated amount or the total number of trips less any trips taken by
the former spouse or de facto partner. The Explanatory Memorandum provides
examples.[74]
Parliamentary
Entitlements Act 1990
The Parliamentary Entitlem | 
