Bills Digest no. 20 2008–09
Same-Sex Relationships (Equal Treatment in Commonwealth
Laws—Superannuation) 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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced:
28 May 2008
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1-3 on Royal
Assent, Schedules 1-3 and 5 on a date fixed by proclamation or 6
months after the date of Royal Assent whichever is the earliest.
The Bill specified that Schedule 4 was to commence on 1 July
2008, however the Bill had not passed through Parliament on that
date. See further discussion on commencement issues
below.
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/.
This Bill seeks
to amend the following Acts governing Commonwealth superannuation
schemes and Commonwealth regulation of superannuation, in order to
increase coverage of same-sex couples and their children in
superannuation and related matters:
- Parliamentary Contributory Superannuation
Act 1948
- Superannuation Act 1922
- Superannuation Act 1976
- Federal Magistrates Act 1999
- Judges Pensions Act 1968
- Law Officers Act 1964
- Defence Force Retirement and Death Benefits Act
1973
- Defence Forces Retirement Benefits Act
1948
- Retirement Savings Accounts Act
1997
- Small Superannuation Accounts Act
1995
- Superannuation (Government Co-contributions
for Low Income Earners) Act 2003
- Superannuation Industry (Supervision) Act
1993
- Income Tax (Transitional Provisions) Act
1997, and
- Governor-General Act 1974.
This Bill is the first element in a wider set
of changes seeking to end discriminatory treatment of same-sex
couples in all Commonwealth laws. The Senate Committee enquiring
into this Bill has combined consideration of this Bill with its
consideration of the Family Law Amendment (De Facto Financial
Matters and Other Measures) Bill 2008 and the Evidence Amendment
Bill 2008. All three Bills include provisions designed to treat
same-sex relationships in a similar manner to married and de facto
relationships.[1] The
Government has recently introduced a further Bill: the Same-Sex
Relationships (Equal Treatment in Commonwealth Laws General Law
Reform) Bill, intended for passage within the Spring
sittings.[2]
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
).[3] 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. Chapter 13 of the Report listed a number of areas of
superannuation law that denied same-sex couples equal treatment in
the payment of benefits; as enjoyed by opposite-sex
couples.[4]
The general response to the HREOC Report was
positive, with some indications showing public support for the
Report s recommendations that these areas of inequality should be
dealt with.[5] The
former government did not make a formal response to the Report
prior to the 2007 election.[6] During the election campaign Mr Turnbull affirmed a
pledge that the Coalition would extend Commonwealth employee
superannuation death benefits to same-sex couples.[7]
In 2004 the Coalition Government made changes
to superannuation law which had introduced the concept of
interdependency , a category which, in many cases, covers same-sex
couples.[8] The then
Prime Minister, the Hon. John Howard, commented that this
innovation had been undertaken at the same time as the decision to
explicitly exclude same-sex couples from the Marriage Act
1961.[9] The
Coalition Government rejected the then Opposition s attempts to
provide greater superannuation coverage to some same-sex couples
through an amendment to the
Judges Pensions Amendment Bill 2007, saying it was
inappropriate to deal with one defined benefits scheme in
isolation. Further background on the Coalition s position and the
interdependency provisions are provided below.
For some time the ALP has had policies
favouring the liberalisation of laws with respect to same-sex
couples, and, on the release of the HREOC Report, the then Shadow
Attorney General, Senator the Hon. Joe Ludwig, committed a Labor
government to ending all forms of discrimination in federal
legislation including discrimination in the payment of
superannuation entitlements.[10]
Throughout the life of the 41st
Parliament there were various calls for the surviving partner of a
same-sex couple to have the same rights as the surviving partner of
an opposite-sex couple in relation to the payment of superannuation
benefits in the event of death.[11]
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.[12]
The introduction of this Bill was announced in
a press release by the Attorney-General the Hon. Robert McClelland
MP on 30 April 2008,[13] and it was presented in the context of further changes
seeking to end the discriminatory treatment of members of same-sex
couples in all Commonwealth laws. [14]
The amendments proposed in this bill have been
prioritised due to the time-critical nature of the reforms that
will allow reversionary death benefits to be paid to same sex
partners and their children where they presently have no
entitlement.[15]
He expressed the hope the Committee would
undertake its review expeditiously so that the reform can be
implemented as planned on 1 July 2008. [16] The Hon. Mr Pyne also expressed the
hope that the inquiry could be conducted before that date.[17]
The Hon. Mr Turnbull suggested that,
irrespective of the Committee s reporting date, the Government
could choose to backdate the legislation
We know the tax laws and laws relating to
superannuation are routinely in fact, almost invariably made
effective as of the date of announcement .There is no reason why
referral to a committee should defer the granting of the benefits
that both sides of this House are committed to in terms of
substance and in terms of the overall objective. [18]
He went on to argue that the Government could
choose the commencement date, suggesting budget night, the day
after the election or whatever date you choose , and also pointing
out they could make it from when he, Mr Turnbull, announced the now
Opposition s support for such laws. He said it was a matter for the
Government because it was entirely a government liability. [19] The Attorney-General
responded to these calls:
I note that there is a suggestion for
backdating. But the problem is that when you are talking about
reversionary benefits you are usually talking about a fortnightly
or monthly contribution; that is, a contribution that is in lieu of
income and sustains the person. If there is a gap particularly a
substantial gap there are complications as to how that individual
is to sustain themselves and their family until the legislation is
passed. There are complications. I appreciate the numbers in the
Senate, but I would implore those opposite to prevail upon their
senators to conduct their inquiry as expeditiously as
possible.[20]
There are of course significant legal and
practical difficulties with backdating. The opposition might say,
Let s just backdate it. Well, superannuation trustees are required
to make payments under the law as it stands, not under what it
might be in the future. If payments were to be made now, either to
certain beneficiaries or to a deceased s legal estate, it would be
very difficult to unwind those payments at a future date when the
law changed.[21]
There was considerable editorial comment
welcoming the introduction of this Bill.[22] Press comment noted that the
amendments in this Bill were but the first step in ending
discrimination against members of same-sex couples.[23] Business groups are
reported as supporting the Bill.[24]
The Association of Superannuation Funds of
Australia (ASFA) has adopted a principle of supporting
superannuation and tax legislation which does not discriminate
against partners of any gender.[25] ASFA has put in a submission to the Senate
Inquiry exploring various issues, including the urgency of the need
to cover non-interdependent same-sex couple (see discussion of
interdependence below) and providing statistical information on the
various relationship types believed to be covered (or not covered)
by superannuation funds. They conclude that the Bill should be
passed as it currently is drafted. [26] The ASFA position is reported as
similar to that of the Australian Institute of Superannuation
Trustees.[27]
The Australian Christian Lobby (ACL) has been
reported as noting that the Bill would need to be scrutinised to
ensure that it did not undermine the institution of marriage, while
at the same time considering there was a case to remove
discrimination in many laws, especially where children were being
disadvantaged by current laws.[28] A subsequent media release from ACL has discussed
concerns over the definitions being used and expressed a desire to
maintain the current, more explicit, references to marriage and
also an interest in examining the merits of addressing
discrimination in superannuation laws against those in other types
of interdependent relationships.[29]
The Australian Human Rights Commissioner, Mr
Graeme Innes, welcomed the introduction of this Bill.[30] A significant number
of submissions have been received by the Senate Inquiry from
organisations and general members of the public. These have to some
extent been divided between those supporting the Bill on the
grounds of equity/human rights and justice (largely from same-sex
lobby groups, academics, human rights organisations and members of
the general public) and those opposing the Bill on the grounds that
it promotes same-sex relationships and, arguably, demotes the
significance of heterosexual marriage. These submissions have also
expressed concern regarding the drafting of the Bill and the need
to provide coverage of interdependent relationships (largely from
church groups, groups identifying as pro-family and members of the
general public). Finally there are submissions to the Inquiry which
reject the Bill and its principles entirely.[31]
In his Second Reading Speech on the Bill Mr
Pyne gave a detailed historical and current account of the Liberal
Party s support for the rights of same-sex partners, concluding
that reform in this area would have come no matter the outcome of
the election .[32]
Dr Nelson touched on similar issues, commenting that [t]he Liberal
Party yields to no-one in its historic commitment to reform in this
area. [33] During
the 2007 election, and subsequently, the Coalition has indicated a
willingness to give same-sex couples certain economic
recognition.[34]
There have, however, been tensions between members of the Coalition
who support such amendments more vigorously[35] and members who are not unambiguously
warm towards the principles behind the Bill s proposed
amendments.[36] Dr
Nelson, who has been described as being supportive of gay rights
,[37] earlier
commented with respect to the Bill:
we will carefully scrutinise the proposals that
are being put up by the Government. And if they are affordable and
reasonable, we will certainly be providing support to them.
However, we must live in a country where you do
not pay a dollar more in tax nor receive a dollar less in support
from your country and welfare, by virtue of your sexuality We will
carefully examine the proposals that are being put up by the
Government. And if they are affordable and if they are reasonably
achievable, then they will enjoy our support .[38]
In the Second Reading Debates there were many
Coalition speakers who were concerned at the effects of the
legislation. Mr Katter, speaking as an independent, represented a
more emphatic end of this spectrum, speaking vehemently against the
Bill and refusing to support the Coalition s proposed amendment
because it gave countenance to same-sex relationships.[40] Common themes of
concern were the undermining of the status of marriage, the
position of children under the Bill and the need to incorporate
interdependent relationships into the legislation. Examples of such
comments come from Mr Roberts, who said nothing should be done by
the parliament to make it likely that more children will be raised
by same-sex couples [41] and the Hon Danna Vale, who expressed concern that by
this legislation, the Government actually proposes to grant
equality of treatment between same-sex couples and married couples.
[42] Mr Morrison
endorsed John Howard s statement that
Marriage, as we understand it in our society,
is about children, raising them, providing for the survival of the
species, and I think if the same status is given in our society to
gay unions as are given to traditional marriage we will weaken that
bedrock institution.[43]
The Hon. Kevin Andrews quoted Kingsley Davis,
a demographer who writes:
The genius of marriage is that, through it, the
society normally holds biological parents responsible for each
other and for their offspring. By identifying children with their
parents and by penalising people who do not have stable
relationships, the social system powerfully motivates individuals
to settle into a sexual union and take care of ensuing
offspring.[44]
Despite these statements, which might be seen
as antagonistic to giving superannuation benefits to same-sex
couples, most of these speakers endorsed the principles behind the
legislation, i.e. that equal access to superannuation entitlements
should be given to all couples of whatever sexual orientation. The
concerns regarding the downgrading of marriage were largely
focussed on drafting issues.
The Greens strongly support the proposed
changes and would go further than other parliamentary parties as
they also support same-sex marriage and would extend the provisions
of this Bill to make it compulsory for all superannuation funds to
recognise same-sex relationships.[45] The Democrats had earlier introduced a Private
Member s Bill to implement the recommendations of the HREOC Report
(the Same-sex: Same Entitlements Bill 2007).[46] Senators Murray and Bartlett, before
their departure from the Parliament, made active contributions to
the debate on referral of this Bill to Committee.[47]
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. [48] In South Australia the Family First party has
supported amendments to superannuation legislation to include
interdependent relationships .[49] Neither Senator Fielding nor Senator Xenophon
spoke on the occasion of the Bill s referral to the Senate
Committee, with Senator Fielding voting in support of a longer
reference. Senator Fielding is reported to be considering his
position, while Senator Xenophone is reported as being broadly in
support of the Bill s intentions.[50]
This Bill deals with significant areas of
discrimination in the tax treatment and payment of superannuation
benefits for members of same-sex couples, and the children of these
individuals.
The HREOC Report details the range of areas in
which same-sex couples face difficulties in having their
relationships recognised with consequential financial impacts that
can be quite negative, particularly in the field of superannuation.
The Report comments:
Same-sex couples and families get fewer leave
entitlements, less workers compensation, fewer tax concessions,
fewer veterans entitlements, fewer health care subsidies, less
superannuation and pay more for residential aged care than
opposite-sex couples in the same circumstances.
Same-sex couples are denied these basic
financial and work-related entitlements because they are excluded
from the definitions describing a couple in federal laws . Federal
law after federal law defines a partner or a member of a couple or
a spouse or a de facto spouse as a person of the opposite sex.
Further, children in same-sex families may
suffer because one or both of their parents are denied the
financial and work-related entitlements which are intended to help
families live better.[51]
The Report goes on to quote a couple from
Adelaide who told the inquiry:
We are an average suburban family. We are
working hard and contributing to our community. We don t want
special treatment - just what others can expect from their legal
and social community. Our rights are denied simply because of who
we love. We just want equality.[52]
The Bill proposes to addresses this
discrepancy in the treatment of couples in the area of
superannuation. While there have been concerns raised regarding the
impact of the Bill, there would seem to be an underlying unanimity
amongst most participants in the debate that there should be no
exclusion of same-sex couples from the various benefits of the
superannuation system.
Despite the seemingly broad based support for
the inclusion of same-sex couples into superannuation benefits, the
question Does the Bill undermine marriage? is nevertheless posed by
some.[53] The
question appears to stem from a concern that the Bill may not
preserve the particular position of significance given to
marriage.
There is a sense in which, at various points
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.
It can be argued that marriage is a
multi-faceted state with 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. Arguably there are elements of the
married state that are outside the reach of the Bill s provisions:
with the result that the moral or religious status of marriage can
not be affected by giving non married couples access to economic
benefits which used to be exclusively enjoyed by married
couples.
A submission from the Australian Federation of
AIDS Organisations reflects on this issue in a different
manner:
[T]he leader of the Opposition argued against
marriage being reduced to one among several classes of permanent
domestic relationships in Australia. Well, to put it bluntly,
marriage is one among several classes of permanent
domestic relationships in Australia. This bill does not reduce
marriage to that status. The bill does not seek to prioritise
different categories of intimate couple relationships; neither
insisting marriage remains at the top of a hierarchy nor be reduced
to an equal or lesser footing.[54]
The Uniting Church of Australia also offers a
perspective on these questions:
The understanding of marriage as a heterosexual
religious and social institution should not be used as a platform
from which to discriminate against same-sex couples in areas where
unmarried heterosexual couples, legally recognised by the State as
having a relationship equivalent to that of a marriage, are able to
access financial entitlements, and superannuation benefits.[55]
Ironically there is a certain symmetry between
the questions being raised by different parties to the debates on
this Bill. The Coalition has suggested that rather than covering
only same-sex relationships, 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.
Thus the question Does the Bill undermine marriage? has parallels
with (if interdependence were incorporated) Would the Bill
undermine same-sex relationships?
Certainly HREOC has indicated a view that to
extend superannuation 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.[56]
There is an argument that it belittles the
nature of same-sex relationships and their closeness to a conjugal
type of relationship to class them with the broader category of
interdependent relationships. The same issue is raised with the
interaction of marriage and other relationships. Both involve
considering whether the recognition of a broader category of
relationships undermines the status of the potentially privileged
relationships.
As mentioned above, the Coalition Government
introduced the concept of interdependency into superannuation law
in 2004. This is a category which, in many cases, covers same-sex
couples.[57]
Many superannuation funds have included
interdependents in their fund rules as potential beneficiaries of
death benefits. Sometimes this has been done by changes to the fund
s trust deed. In a number of cases this occurred automatically in
that the fund s trust deed defined potential recipients in terms of
those eligible to receive death benefits in the Superannuation
Industry (Supervision) Act 1993 (SIS Act).
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.[58]
Those in such a relationship are classed as
death-benefit dependents in relation to the deceased superannuation
benefits and can also access taxation concessions.[59] 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.[60]
The HEROC 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.[61]
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,[62] 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.[63]
There has been some confusion in the debates
on this topic 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 (see the discussion of the timing issues
above), however, as HREOC have identified, it may be that the
breadth of relationship 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 relationship may obviate the need for the additional
criteria.[64]
ASFA have an interesting submission to the
Senate Inquiry which includes Empirical evidence on the number of
de facto and interdependent relationships . This identifies that
very few interdependency relationships have been established for
the purposes of superannuation, in particular ASFA is not aware of
an recorded cases where interdependency for receipt of a
superannuation benefit has been established for two elderly sisters
living together and providing mutual support. [65]
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.
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.
A recurring objection to the drafting is its
reliance on the term couple relationship which encompasses same-sex
couples, de facto couples and married couples. The replacement of
the term marital relationship by the term couple relationship is
used in a number of contexts as an umbrella phrase circumventing
the use of the narrower marital relationship . This has disturbed a
number of contributors to the debate on the Bill. While the
drafting technique used seems legitimate from a technical
perspective it may be that this language issue has broader
ramifications. A consensus position could possibly be found by a
redraft in which the references to a couple relationship are
modified so that both terms are used (i.e. marital and couple
relationships). This need not change the technical effect of the
Bill.[66] Professor
Parkison has provided draft material to the Senate Inquiry in which
he explores a possible redraft that would reintroduce the reference
to marital relationships and also use the term couple relationships
.
The Bill introduces into the definition of a
couple relationship a reliance on the concept of a registered
relationship under State or Territory law. It does this by allowing
the Commonwealth to prescribe certain forms of relationship under
certain prescribed State/Territory laws. At the moment Tasmania,
the ACT and Victoria all have laws which allow for the registration
of a same-sex relationships (Victoria s law are likely to be
operational at the end of 2008).[67] Tasmania s laws allow for the registration not
only of same-sex relationships, but also those that satisfy the
criteria of an interdependent relationship. Thus a relationship
registered under Tasmania s laws could be recognised as a couple
relationship under the provisions in this Bill if the appropriate
prescriptions are made. Tasmania s laws are often held up as model
legislation by the current federal administration. The ACT s Civil
Partnerships Act only allows for same-sex relationships to be
registered under that law, however there is also a domestic
relationships law that allows for the registration of relationships
and which could be prescribed if the Commonwealth Government so
wished.
Several submissions to the Senate Inquiry
argued that, where a relationship is or was registered it should be
conclusive proof that that has been a relationship as a couple
living together on a genuine domestic basis .
For example, Mr Wayne Morgan is of the opinion
that registered relationships should not be defined as a
sub-category of de facto relationships since there has been a
decision taken to formalise the relationship. If the Government
decides to pursue this route, at the very least, he argues proof of
registration of a relationship under a state or territory law must
be conclusive proof of the existence of a de facto relationship
under Commonwealth law, without the need to prove the usual
criteria needed to establish a (presumptive) de facto relationship
(such as cohabitation).[68] Ms Judy Harrison also argued that such an adjustment is
desirable and would promote certainty, reduce dispute, save legal
costs and court time. It is also more dignified and less
intrusive.[69]
Professor Miranda Stewart joins Mr Morgan and Ms Harrison in making
such a recommendation.[70]
There are currently constitutional limitations
on the Commonwealth s capacity to generally regulate interdependent
relationships, but a referral of State power[71] could allow for what Mr Morgan refers
to as the ideal situation whereby the Commonwealth regulates all
intimate relationships (both conjugal and interdependent). [72] He argues this would
provide a rational and logical basis on which to achieve national
uniformity , echoing Justice Kirby who said in another context that
there needed to be recognition of all intimate personal
relationships because otherwise there would inevitably be
discrimination occurring when what was needed was a broader genus
of relationship.[73]
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.[74]
Finally Professor Stewart also argues that the
legislation should allow for the recognition of relationships
registered overseas in appropriate legislative frameworks.[75]
The approach of defining children s
eligibility to be covered by relevant superannuation provisions by
reference to whether they are a product of the relationship 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 also refers to the
definition which relies on the concept of a product being a result
of an action or process .[76] 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?[77]
The use of the term product could be remedied
by a revised approach to the drafting ( the relevant child of the
relationship might avoid the use of the word product, which has
offended, but would rely on legislative definitions to give the
phrase greater form). 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.[78]
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 can 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. [79]
Another issue which has been raised by eminent
academics in the field is whether the legislation should clarify
that if trust deeds need to be adjusted they are not, technically
speaking, being resettled (a trust deed that has adjustments made
to its terms can be regarded as being resettled ).
In particular Professor Stewart identifies a
problem with the Explanatory Memorandum s claim that provisions
regarding the change to the SIS Act will function to ensure that
the coverage of private funds is changed. In cases where the trust
deeds reflect the SIS Act this will be true, but there are others
where the trust deeds would need to be amended to ensure
recognition of same-sex couples.
There are negative taxation implications for a
trust when the amendment to it involves a resettlement . Professor
Stewart summarises the situation as follows:
Case law suggests that the class of potential
beneficiaries (including dependants) can be changed without causing
a resettlement.[80]
However, the Australian Tax Office has suggested that changing
beneficiaries could in some circumstances trigger a
resettlement.[81]
Trustees may be understandably cautious in this situation.[82]
She goes on to recommend that:
The Bill mandate amendment of trust deeds to
ensure equality of recognition of the bulk of Australian same-sex
couples who contribute to private superannuation trust funds. The
government in the Explanatory Memorandum or other published advice,
should make it clear that such amendment will not cause any
resettlement of the trust funds or otherwise pose a risk to
security of those funds including tax liability.[83]
This Bill has some significant financial
implications if all of its measures are passed. The following
tables show the overall impact on administrative expenses and
revenue over the years 2008 09 to 2011 12.
Table 1: Impact on Commonwealth
expenses $m
|
2008-09
|
2009-10
|
2010-11
|
2011-12
|
|
10.8
|
8.9
|
9.3
|
9.6
|
Source: Explanatory Memorandum[84]
Table 2: Impact on revenue
$m
|
2008-09
|
2009-10
|
2010-11
|
2011-12
|
|
-0.4
|
-0.4
|
-0.4
|
-0.4
|
Source: Explanatory Memorandum
In addition the Bill s measures, as a whole,
may increase the Commonwealth s unfunded superannuation liability
by an estimated $112.5m.
The recent Commonwealth Budget allowed for a
payment of an additional $3.9 bn to the Future Fund.[85] This fund retains
Commonwealth assets to meet its unfunded superannuation
liability.[86]
Detailed information on the financial
implications of the Bill is in the Explanatory Memorandum.
There are four main superannuation issues for
members of same-sex couples.
The first issue is the access that the
surviving member of a same-sex couple has to their partner s
Commonwealth superannuation benefits. Under current law the
surviving partner cannot receive the deceased partner s lump sum or
the pension benefits paid by most of the Commonwealth s civilian or
military superannuation schemes.[87] The main legal difficulty has been that the
surviving member of a same-sex couple does not meet the definition
of either spouse or dependent in the relevant legislation or trust
deeds for these schemes.[88]
The second issue is the ability of the
children of the surviving partner of a same-sex couple to receive a
share of the deceased partner s superannuation benefits. Under
current law the dependent children of the deceased partner may
receive a share of the deceased superannuation benefits if
appropriate. However, the children of the surviving partner have no
such access to those benefits. This becomes even more important if
the surviving partner themselves is incapacitated or dying.
Under current law, if a person of either
gender was in an interdependency relationship with their deceased
partner at the time of the latter s death they may receive the
relevant superannuation benefits tax free. [89] As discussed above, there have been
criticisms of these arrangements in so far as they apply to
same-sex couples because it imposes administrative and practical
hurdles on same-sex couples which are more onerous and difficult to
satisfy that the criteria used for opposite-sex couples.
Under current law a member of an opposite-sex
couple may make a tax deductible contribution to their spouse s
superannuation account. Further, they may direct a superannuation
fund trustee that up to 85 per cent of the Superannuation Guarantee
contributions made on their behalf and up to 100 per cent of their
own personal contributions be paid into their spouses
superannuation account after the end of each financial year. This
option is not open to same-sex couples or to members of an
interdependent relationship. The amendments in this Bill seek to
address this issue by altering the definition of spouse for
superannuation purposes.[90]
The general approach of this Bill is to ensure
that a surviving partner of a couple relationship is entitled to
benefits and to define members of a couple relationship so that it
includes same-sex couples along with married couples and de facto
relationships.
Further, the range of children that are
eligible to receive benefits under the Acts amended by this Bill is
expanded to ensure that the children of surviving members of a
same-sex couple are able to access any relevant benefits. The Bill
does this by utilising a new definition of children who are the
product of the relationship , which 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. The Bill refers to the child having a
biological connection to one of the parents or having one of the
parents as the birth mother (which caters for situations where the
mother carries a child whose genetic material has been donated and
does not come from the mother). As mentioned above, pre-existing
recognition of children who are not traditionally part of the
nuclear family continues (such as adopted children).
In respect of the receipt of death benefits
tax free the Bill amends the definition of spouse, dependent and
child to enable members of a same-sex couple and their children to
be included in the definition of a dependent for taxation of
superannuation death benefit purposes.
The approach adopted for amending the
Defence Force Retirement Benefits Act 1948 (DFRB Act) is
quite different. These amendments allow the administering
authority, the Defence Force Retirement and Death Benefits
Authority (the Authority), to grant a pension to a surviving
partner of a same sex couple they do not require that such a
pension be paid. The Authority may also pay relevant benefits to
the eligible surviving children of a same-sex relationship. They
are not required to be paid. See further discussion on this issue
in the Main Provisions.
This Bill amends a number of Commonwealth
superannuation schemes with one thing in common: Their operation is
governed by an Act of Parliament. Thus changes in the way they
operate must be made through legislative change.
The operation of the Public Sector
Superannuation Scheme and the Military Superannuation and Benefits
Scheme are governed by trust deeds. The Explanatory Memorandum
states that these trust deeds will be amended so that their
operation is in line with the amendments made in this Bill.[91]
The other civilian Commonwealth superannuation
schemes are the Public Sector Superannuation Scheme Accumulation
Plan and the Australian Government Employee s Superannuation Trust.
Both these schemes are accumulation style plans that only pay a
lump sum benefit. They operate largely in accordance with the
provisions of the Superannuation Industry (Supervision) Act
1993 and associated regulations. As such, surviving partners
of same sex couples and the relevant children have greater access
to the deceased benefits than exists for the other Commonwealth
superannuation schemes. The Explanatory Memorandum notes that the
rules of these particular schemes do not need additional amendment
at this time for the purposes of this Bill.[92]
Schedule 1 amends the
Parliamentary Contributory Superannuation Act 1948 (PCS)
the Superannuation Act 1922 (1922 Act) and the
Superannuation Act 1976 (CSS Act) so that benefits may be
paid to surviving members of a same-sex couple or surviving
children of that couple.
Item 5 adds new
subsection 7 to subsection 4(1) of the PCS Act. This new
subsection prescribes that a child for the purposes of this Act
cannot be the product of a relationship between two persons unless
that child is the biological child of at least one of the persons
or is born to a woman in the relationship. This concept of a birth
mother caters for children who are the result of artificial
conception involving donated gametes. The definition excludes
children whose parents have come into a relationship with the child
already in being, however, as noted below, such children may be
incorporated under other categories.
Comment
Initially this requirement may appear to
prevent the adopted child of a beneficiary under the PCS Act from
receiving a benefit that would otherwise be paid to them, as they
are clearly not the biological child of one of the partners in the
relationship. However, this provision covers the definition of a
child who is a product of the relationship and is not exhaustive of
the categories of children recognised. Adopted children are given
recognition outside of the product of the relationship definition:
For instance in both the current sub-paragraphs
19AA(2B)(a) and 19AA(2)(d) and the
proposed amendments in items 13,
15 and 17, where an adopted child
is clearly a child to whom a benefit under the PCS can be paid.
Items 6 to 9 amend
section 4B of the PCS Act so that a couple
relationship is defined as one where the person ordinarily lived
with that other person as that other person s partner on a
permanent and bona fide domestic basis at that time. These
criteria apply to married couples as well as de facto, and although
the arrangement must have been going for three years, the Trust can
utilise a discretion to recognise a shorter relationship as long as
it was permanent and bona fide. Under the amendments no
mention is made of the gender of the partner . The current section
4(B) with the proposed changes marked is at Attachment A.
Item 10 inserts new
subparagraph 4B(4)(ba). The effect of this
amendment is to include a relationship in the new PCS definition of
a couple relationship if that relationship is registered under a
prescribed law of a state or territory.[93]
Items 13 to
17 adjust the definitions of a child under the PCS
Act so that children born to a partner in a couple relationship are
covered.
The Explanatory Memorandum notes that under
section 48AB of the 1922 Act the Commissioner for
Superannuation may, in certain circumstances, grant a pension to a
person who would be eligible to receive such payments under
Part IV of the CSS Act. Thus it is not necessary
to make substantive amendments to the 1922 Act to ensure that
surviving members of a same sex couple and relevant child
dependents gain access to these payments.[94]
Items 19 and
20 stipulate that amendments to the CSS Act in
this schedule do not apply to those 1922 Scheme members who died
before this schedule comes into force. This means that the benefits
paid to a 1922 Scheme member, who dies before Schedule
1 takes effect cannot be claimed under the new
provisions.
As with the PCS Act the general approach to
amendments to the CSS Act is to replace the definitions of the term
marital relationship with the term couple relationship . This
latter term is defined to include same-sex relationships. The
surviving member of a couple relationship has access to the
deceased partner s superannuation benefits.
The payment of benefits to child dependents of
the deceased or surviving partners is provided for by expanding the
definition of the term child for the purposes of the CSS Act.
For CSS Act purposes item 21
expands the definition of the term child in relation to a person
who has died. The new definition specifies that a child of the
person, includes
an adopted, ex-nuptial, foster or step child of
the deceased or a ward of the deceased, or
a child who is the product of a relationship the
person has had
and similarly recognises the child of the spouse
of the deceased.
For the purposes of the amended CSS Act the
spouse of the deceased includes anyone in a couple relationship at
the time of death.
- Items 27 to 30
amend subsection 8A of the CSS Act so that a couple relationship
will exist if the person ordinarily lives or lived with the
deceased as their partner on a permanent and bona fide
domestic basis at that time of death.
- Item 31 inserts new
subparagraph 8A(4)(ba) recognising that a couple
relationship exists if that relationship was registered under a law
of a state or territory.[95]
- Item 33 amends
subsections 8B(2) and (3) of the
CSS Act with the effect that the surviving partner of a same-sex
couple is recognised as the surviving spouse for the purposes of
the CSS Act. This enables the surviving partner to access the
relevant superannuation benefits.
- Item 58 ensures that the
amendments to the CSS Act in this Bill apply only to the benefits
paid to a person who dies after Schedule 1 takes
effect. This means that the benefits paid to a person who dies
before the commencement of this schedule cannot be claimed by the
surviving member of a same-sex couple.
Schedule 2 amends the
Federal Magistrates Act 1999 (Magistrates Act), the
Judges Pensions Act 1968 (Judges Act) and the Law
Officers Act 1964 (Law Officers Act).
Item 4 inserts a new
definition into section 5 of the Magistrates Act
so that a partner is a person in a relationship as a couple with
another person of either gender.
Item 5 repeats the definition
of a child who is the product of a relationship that was used in
earlier provisions.
Item 6 amends
Schedule 1 of this Act so that an eligible spouse
is a person who was a partner in a couple relationship.
Items 7,
8 and 9 also amends
Schedule 1 of the Magistrates Act so that a person
is in a couple relationship if they had been
living with the other person as the other person's partner on a
permanent and bona fide domestic basis at that time; whether or not
the person was legally married to the other person.
Item 10 inserts a new
sub-paragraph into Schedule 1 of this Act so that
a relationship registered under a law of a state or territory is
recognised as a couple relationship. Again, this amendment depends
on the effectiveness of an amendment to the Judges Pension Act
1968 in item 25 of this schedule.
Item 12 uses a similar
definition to the PCS Act and defines a child of the Magistrate to
include the product of a relationship (between people of either
gender).
Item 13 provides that these
amendments will apply only to payments made on or after the
commencement of Schedule 1 of this Bill. Thus,
claims for payment in respect of the death of a Federal Magistrate
that occurs before Schedule 1 takes effect cannot
be paid.
Item 14 inserts a new
definition into subsection 4(1) of the Judges Act
that of the child of a couple relationship. The child of a couple
relationship is:
- a child born of that relationship
- a child adopted by either party in that relationship, during
the period of that relationship, or
- a child that is the product of that relationship. (Item
19 defines a child as the product of a relationship if it
is the biological child of at least one of the partners in that
relationship, or is born to a woman in the relationship.)
- Item 17 defines a partner as a
person in a relationship as a couple with another person of either
gender.
- Items 22 to 24
effectively defines a couple relationship, for the purposes of the
Judges Act, as a relationship where the person ordinarily lived
with that other person as that other person's partner on a
permanent and bona fide domestic basis at that time.
- Item 25 inserts a new
subparagraph into section 4(AB) of the Judges Act.
Effectively, this amendment states that a couple relationship
exists, for the purposes of this Act, where the relationship is
registered under a prescribed law of a state or territory as a
prescribed kind of relationship. As noted a number of other
provisions in the Bill depend on this provision to define the
relevant state or territory legislation.
- The Bill and Explanatory Memorandum do not provide details on
what a prescribed law may be, or what a prescribed relationship
under a state or territory law may entail. Various state or
territory laws setting up registers of relationships and a
prescribed relationship would obviously be a same-sex relationship
registered under these laws. It is not clear whether the provisions
made under State and Territory laws for interdependent
relationships will be prescribed under this provision.
- Item 26 amends section
4(AB) of the Judges Act so that evidence of a couple
relationship includes having a child that is the product of that
relationship.
- Item 30 limits these amendments
to the Judges Act to payments arising out of the death of a Federal
Judge or Australian Building and Construction Commissioner (whether
or not they are retired) that occurred on or after the commencement
of Schedule 2.
Section 16 of the Law
Officers Act apply the provisions of the Judges Act (other than
subsection 6(3) of that Act) to Commonwealth
Solicitor-Generals appointed before 31 December 1997.
Unfortunately, subsection 6(3) has been repealed and the reference
in this section of the Law Officers Act has not been
updated.[96]
Item 31 updates the Law
Officers Act to correct the above mentioned oversight.
Item 32 restricts the
amendments made by Schedule 2 to pensions payable
on the death of a Solicitor-General who:
- was appointed before 1 January 1998, and
- dies after the commencement of Schedule
2.
Schedule 3 amends the
Defence Force Retirement and Death Benefits Act 1973
(DFRDB Act) and the Defence Forces Retirement Benefits Act
1948 (DFRB Act). The superannuation schemes governed by both
these Acts are now closed to new members. The Explanatory
Memorandum states that currently the Defence Forces Retirement
Benefit Scheme only has recipient members all contributing members
of this scheme are now retired.[97]
Items 1 to
3 of Schedule 3 amend the
definition of a child for the purpose of the DFRDB Act in
subsection 3(1) of that Act. These definitions
incorporate a child who is the product of a relationship. To be
covered by the provisions the child, by any of the definitions,
must have been wholly or substantially dependent upon the DFRDB
member at the time of death.
Item 6 amends
subsection 3(1) of the DFRDB Act to allow a person
s partner for the purposes of that Act to be a person of either
gender.
Item 9 requires that a child
who is the product of a relationship be the biological child of at
least one of the persons in that relationship or is born to a woman
in the relationship.
Item 10 amends
section 6A so that a couple relationship, for the
purposes of the DFRDB Act is defined as a relationship where the
person ordinarily lived with that other person as that other
person's partner on a permanent and bona fide domestic
basis at that time.
Item 14 amends
section 6A so that a relationship registered under
a law of a state or territory as prescribed in the amendment at
Item 25 of Schedule 2 is a couple
relationship for the purposes of the DFRDB Act.
Item 16 amends
section 6B so that the surviving member of a
couple relationship is a spouse for the purposes of the DFRDB Act.
As such they would be entitled to spouse benefits on the death of a
DFRDB member.
Item 24 restricts the
application of this schedule s amendments to the DFRDB Act to
benefits paid as a result of a death on or after this schedule
takes effect.
A different approach has been taken in
amending the DFRB Act. It is arguable that the following amendments
do not ensure that the surviving member of a same sex couple, or
the relevant children of that relationship, receive the deceased
benefits.
Item 25 inserts
section 64AA (amongst other sections) into the
DFRB Act. This section allows the Defence force and Retirement
Benefits Authority (the Authority) to grant a pension on or after
the date on which Schedule 3 commences where:
- a pension is not payable under sections 57 or
64 of the DFRB Act
- is not payable under Division 1 of
Part VI of the DFRDB Act as in force on the date
Schedule 3 takes effect, but
- would have been payable to a person under Division
1 of Part VI of the DFRDB Act if the
deceased pensioner had been, at the time of their death, a
recipient member under the DFRDB Act.
- The first point to note about this amendment is that the
Authority is not required to pay a pension under these conditions.
It may grant a pension, having regard to any matters prescribed in
regulation and any other matters, if it is satisfied that the
surviving partner of a same sex couple is in necessitous
circumstances, or the grant of the pension is otherwise warranted.
This discretionary approach has comparisons in the 1922 Act, see
above p. 26.
- The payment of such pensions is not compulsory, although the
explanatory memorandum specifies that being entitled to a pension,
other than for a marital status issue, would warrant the grant of a
pension. [98]
- The second point is that the eligibility for the grant of a
pension to the surviving member of a same sex couple is contingent
on the deceased pensioner meeting the requirements for payment
under the DFRDB Act at the time they died.
- This approach appears to be extremely complex and
administratively difficult. It does not provide the same level of
security for the payment of a pension to the surviving member of a
same-sex couple where the deceased was a DFRB pensioner.
- The same approach is taken in the payment of a pension to
surviving children of the same-sex couple. It is noticeable that
the definition of a child for the purposes of the DFRB Act has not
been expanded in the same way that it has been enlarged for the
purposes of the other Acts amended by this Bill, instead relying on
the definitions used in the DFRDB.
- As at the 30 June 2007 there were some 2 105 retirement and
invalidity pensions paid under the DFRB Act.[99] In view of the comparatively low
number of primary DFRB pensioners the impact of the above noted
problems may not be numerically large.
- Item 26 ensures that these
amendments apply to the granting of a DFRB pension only arising
from the death of a recipient DFRB scheme member occurring on or
after the commencement of Schedule 3.
Schedule 4 contains
amendments to the Retirement Savings Accounts Act 1997,
Small Superannuation Accounts Act 1995, Superannuation
(Government Co-contribution for Low Income Earners) Act 2003,
Superannuation Industry (Supervision) Act 1993 and the
Income Tax (Transitional Provisions) Act 1997.
Generally, the amendments in Part
1 expand the definitions of the terms spouse and child in
the affected Acts. If a person is a dependant of a deceased person
then they are able to receive that person s superannuation benefits
tax free.
These amendments will simplify the process of
receiving a deceased person s superannuation benefits tax free for
the surviving member of a same-sex couple. They will no longer have
to prove that they were in an interdependent relationship with the
deceased and provide the necessary clarification of the financial
relationship between the deceased and the surviving partner.
Rather, they will have to demonstrate that they were in a
relationship as a couple. Generally this will entail demonstrating
that they lived with the deceased on a genuine domestic basis in a
relationship as a couple.
These amendments also expand the definition of
the term child for superannuation purposes. The children of a
same-sex relationship will now find it easier to be classed as a
dependant of the deceased and therefore qualify to receive the
relevant benefits on a concessionally taxed basis.
The amendments in item 13 are
transitional measures for the 2008 2009 year only. They allow a
superannuation fund trustee to increase the death benefit payments
under the Anti Detriment provisions for this financial year
only.
Under these Anti Detriment rules a death
benefit lump sum, paid to a trustee of a deceased estate, spouse,
former spouse or a child may be increased by part of the
contributions tax paid on tax-deductible contributions paid into
the fund since 1 July 1988. The superannuation fund can recover any
appropriate increase in the amount paid through a tax
deduction.[100]
This applies only where the person dies as a
member of a superannuation fund and where the trustees of the fund
concerned agree to increase the death benefit payment. As noted
above, due to the recent change in superannuation law a person may
remain a member of a fund irrespective of age or attachment to the
workforce, and withdraw as much or as little as they like. This
will lead to increased numbers of persons remaining members of
their superannuation funds until they die.
Item 14 effectively alters
the definition of death benefit dependant in proposed
section 302-195A Income Tax Assessment Act 1997
for the 2008 2009 year only. These amendments assist in ensuring
the tax free payment of superannuation death benefits to surviving
members of a same-sex couple and the relevant children during this
particular financial year.
The Explanatory Memorandum notes that
forthcoming legislative amendments will implement permanent
legislative changes that have the effect of the changes in this
part.[101]
The changes in this schedule amend the
Governor-General Act 1974 (GG Act).
Items 1, 3 and
4 amend subsection 2B(2) of the
GG Act so that a couple relationship means, for the purposes of
this Act a situation where, at a particular time, a person
ordinarily lived with the
deceased person as the
deceased person s partner on a permanent and bona fide
domestic basis.
Item 5 inserts new
subparagraph 2B(4)(ba) into the GG Act so that a
person is to be regarded as ordinarily living with a
deceased person as the
deceased person s partner on a bona fide domestic
basis at a particular time if, amongst other circumstances, their
relationship was registered under a law of a state or territory as
prescribed for the purposes of the amendments in item
25 of Schedule 2 (i.e. the amendments to
the Judges Act discussed above).
Item 7 ensures that a partner
of a person to whom the GG Act applies is a partner of either
gender. It also makes the standard amendment regarding a child
being a product of the relationship .
Item 9 applies the above
amendments to a person who is appointed as a Governor General after
the commencement of this Schedule.
Concluding comments
These amendments would remove some of the
remaining inequitable arrangements facing members of a same-sex
couple in the superannuation area, however the approaches to the
drafting leaves open some issues. The reference to children as a
product of the relationship and the removal of the more obvious
references to marital relationships are two drafting issues that
have raised comment, while the inclusion of interdependent
relationships in some form of coverage is another unresolved issue.
There could be greater clarity in determining the relationship laws
which will be prescribed or not, and the forms of relationship that
will be recognised for the purposes of these legislative
provisions.
4B Marital Couple
relationship
(1) For the
purposes of this Act, a person had a marital
couple relationship with another person at a
particular time if the person ordinarily lived with that other
person as that other person s husband or wife partner
on a permanent and bona fide domestic basis at that
time.
(2) For the
purpose of subsection (1), a person is to be regarded as
ordinarily living with another person as that other person s
husband or wife partner on a permanent and bona
fide domestic basis at a particular time only if:
(a) the
person had been living with that other person as that other person
s husband or wife partner for a continuous period of
at least 3 years up to that time; or
(b) the person had been living with that other person as that other
person s husband or wife partner for a continuous
period of less than 3 years up to that time and the Trust, having
regard to any relevant evidence, is of the opinion that the person
ordinarily lived with that other person as that other person s
husband or wife partner on a permanent and bona
fide domestic basis at that time;
whether or
not the person was legally married to that other person.
(3) For the
purposes of this Act, a marital couple relationship
is taken to have begun at the beginning of the continuous period
mentioned in paragraph (2)(a) or (b).
(4) For the purpose of subsection (2),
relevant evidence includes, but is not limited to, evidence
establishing any of the following:
(a) the person was wholly or substantially
dependent on that other person at the time;
(b) the persons were legally married to each other at the
time;
(c) the persons had a child who was:
(i) born of the relationship between the
persons; or
(ii) adopted by the persons during the period of the
relationship;
(iii) the product of the relationship between the
persons;
Note: Subsection 4(7) is
relevant to working out if a child is the product of the
relationship for the purposes of subparagraph (iii)
(d) the persons jointly owned a home which was
their usual residence.
(5) For the purposes of this section, a
person is taken to be living with another person if the Trust is
satisfied that the person would have been living with that other
person except for a period of:
(a) temporary absence; or
(b) absence because of the person s illness or infirmity.
[53]. Mr Morrison provides an example of this position. He
comments There are moral absolutes that protect our society which
should never be compromised and further that he cannot stand idly
by and allow this march to undermine marriage to get out of the
barracks. House of Representatives, Debates, 4 June 2008,
p. 4507. See also the Second Reading Speeches of Mr Roberts, Mrs
Vale, Mr Andrews and Mr Katter.
[67]. Tasmania s Relationship Act 2003, the
Australian Capital Territory s Civil Partnerships Act 2008
and Victoria s Relationship Act 2008 (the commencement
provisions provide for a start date of 1 December 2008 for most
provisions, or by proclamation, see further:
http://www.ocpc.vic.gov.au/CA2572B3001B894B/WebObj/A1b20080904/$File/A1b20080904.pdf
).
[68]. Wayne Morgan, Submission No. j59, Senate Inquiry. Note
also Submission No. 37, from Miranda Stewart, Associate Professor,
Melbourne University Law School.
Leslie Nielson and Kirsty Magarey
17 September 2008
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