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 Entitlements Act 1990 sets out an
entitlements framework available to members of federal Parliament
and their partners. However, as the HREOC Report noted, a partner
will only have access to those entitlements if he or she qualifies
as a spouse under the Act. The existing definition of spouse does
not allow for a same-sex partner. [75] The HREOC Report noted that a
same-sex partner is currently excluded under the Act from the
following range of travel entitlements available to a spouse :
for overseas travel, a member may downgrade the
class of travel and use the difference in cost to offset the fare
of an accompanying spouse
- the cost of travel for a spouse accompanying a Senior Officer
travelling on official business either overseas or within
Australia
- the cost of travel for a spouse accompanying a member
travelling overseas, if the Prime Minister approves
- the cost of travel for a spouse accompanying an Opposition
Office Holder or Presiding Officer travelling in Australia
- the cost of charter transport for a spouse accompanying the
leader of a minority party.[76]
Item 51 replaces the definition of spouse in
section 3 of the Parliamentary Entitlements Act with a new
definition that provides that a spouse includes a de facto
partner of a member within the meaning of the standard definition
of de facto partner in the Acts Interpretation Act.
The Parliamentary Entitlements Act also provides travel
entitlements in Australia for each dependent child of a Senior
Officer i.e. for a Minister, an Opposition Office Holder, or a
Presiding Officer[77]
Item 52 inserts proposed subsections
3(2) and 3(3) into the Parliamentary
Entitlements Act to extend the range of persons aged under 16 who
are taken to be the dependent child of a Senior Officer. It
inserts part of the standard definition of child the purpose being
to provide that a child who is aged under 16 of a
non‑biological same‑sex parent who is a Senior Officer
can be recognised as the dependent child of that Officer.
Superannuation Act 1976
The Superannuation Act 1976 establishes the
superannuation scheme, known as the Commonwealth Superannuation
Scheme (CSS). The Superannuation Act specifies the
circumstances where a CSS member is required or permitted to make
contributions. The circumstances include where a member is on
a period of unpaid maternity or parental leave.
The main amendments are in items 54 and
57. They insert into section 51A a reference to de
facto partner within the meaning of the Acts Interpretation Act and
broaden the meaning of child to incorporate elements of the
standard definition of child. Their effect is that a CSS member who
is on unpaid maternity or parental leave related to the birth of a
child of their de facto partner is not required to pay
superannuation contributions during the leave but may elect to do
so.
The Australian Passport Act relates to the issuance and
administration of Australian passports.
Item 1 makes a minor amendment to subsection
53(3) of the Australian Passports Act which is a miscellaneous
provision relating to the name of the person to whom an Australian
travel document (Australian passport or a travel‑related
document) is to be issued. Proposed paragraph
53(3)(ca) expands the list to include the name on a
certificate, entry or record relating to the registration of a
person s relationship with another person. This proposed amendment
will create parity between certificates of registration of a person
s relationship with that of birth certificates, citizenship
certificates, marriage certificates and change of name certificates
issued by a Registrar of births, deaths and marriages, for the
purposes of the Australian Passport Act.
The Export Market Development Grants Act governs an assistance
scheme under which various Australian exporters are partially
reimbursed expenses associated with the promotion of their
products. The determination of whether a person is a relative under
the Export Market Development Grants Act is relevant to the
assessment of allowable expenses for overseas marketing visits
.[78]
Items 7, 8, 10 and 12 insert the commonly used
definitions of child , de facto partner parent , and the tracing
rule for relatives into proposed section 107
(definitions) of the Export Market Development Grants Act while
items 4 and 9 remove the term de facto spouse .
Relative currently includes the spouse of an individual and any
individual who is, or is a spouse of, a parent, grandparent,
brother, sister, uncle, aunt, nephew, niece, lineal descendant or
adopted child of that individual. Under the proposed amendment,
relationships to an individual can also be traced to or through
another individual who is:
- a de facto partner of the first individual
- an ex-nuptial or adoptive child of the first individual,
or
- related to the first individual because of the definitions of
child and parent .
The Trade Representatives Act relates to the appointment of
Trade Representatives for the Commonwealth and for other
purposes.
Item 14 expands the meaning of members of a
person s family for the purposes of Ministerial determinations
relating to conditions of service for Trade Representatives or an
Officer appointed by a Trade Representative. The new definition in
proposed subsection 11(11) is inclusive and
incorporates the commonly used definition of de facto partner (as
defined in AIA), relationships of child and parent (that arise from
the standard definition of child ) and relationships traced through
either of these types of relationships.
Commencement: Part 1 (changes to the Australian
Passports Act 2005) commence on 1 July 2009. All other
provisions commence the day after Royal Assent.
This Schedule contains amendments to Acts in the Health and
Ageing portfolio to treat same-sex couples and their children in
the same manner as heterosexual couples and their children.
The two Acts which would be modified from the day after Royal
Assent, the Prohibition of Human Cloning for Reproduction Act
2002 and the Research Involving Human Embryos Act
2002 regulate the use of human embryos and prohibit cloning.
The definition of a spouse would be changed in both Acts to the
standard definition and this would incorporate same-sex partners
into the category of people who are authorised to consent to
dealings with excess embryos.
The HIA covers Medicare, safety net entitlements and the rules
governing services that attract a Medicare benefit.
Item 3 changes the definition of which deals an
Australian resident . The definition makes reference to another
person who is the spouse, parent or child of the person and who is
an Australian citizen or someone who holds a permanent visa. The
reference to spouse, parent or child will be updated to reflect the
same meaning to be given to the words in the Migration Act
1958 (see discussion below).
Item 4 inserts new provisions regarding the
definition of a child which stipulate that the product of a
relationship must be the biological child of at least one person in
the relationship or be born to a woman in the relationship. This
will affect the standard definition of the product of the
relationship to be inserted into items 6
(definition of a dependent child), 8 (definition
of a child covered by Part IIBA of the HIA which creates civil
penalty provisions and offences involving benefits and threats
related to requests for pathology and diagnostic imaging services )
and 14 (the Australian Childhood Immunisation
Register).
Item 5 inserts a new definition of who can be
part of a registered family. The current provision stipulates that
you can not be simultaneously treated as a member of more than one
registered family, however the new definition stipulates that if
you fall within the definition of a dependent child in relation to
more than one registered family you can be simultaneously treated
as a member of more than one registered family.
Item 7 replaces part of the definition of
spouse and clarifies that to meet the definition of a spouse the
couple must not be living on a permanent basis, separately and
apart from each other.
Items 12 and 13 insert
standard definitions of step-child and the tracing rules into
section Part IIBA of the HIA (see above).
The NHA governs pharmaceutical, sickness and hospital benefits,
and medical and dental services. The proposed amendments extend
certain benefits to same-sex de facto partners and their dependent
children:
- the Pharmaceutical Benefits Scheme (PBS) safety net
entitlements as a family
- certain concessional beneficiary entitlements for dependents,
and
- provisions applicable to the spouse and children of members of
a friendly society.
The proposed amendments would also clarify the following matters
(as articulated by the Explanatory Memorandum):
- where child and parent are defined for certain provisions in
the NHA, child includes an adoptive child, a stepchild, and someone
who would be a stepchild of a person except that the person is not
legally married to their de facto partner
- a dependent child of a person s spouse can be a member of the
person s PBS safety net family, and
- where the National Health Act sets out criteria for persons
dependant on a concessional beneficiary, a child can be dependant
if the concessional beneficiary has the whole or substantial care
and control of the child and the child is not otherwise a dependent
child under the criteria.
The changes to the Aged Care Act 1997 are not proposed
to come into operation for some time after passage of the Bill. In
part this delay is due to the need to rearrange financial matters
and raises issues for aged same-sex couples discussed above in the
Background section above ( Access to Social Security ).
The ACA provides for the funding, delivery of, and access to
aged care. The proposed amendments would ensure that members of a
same-sex de facto relationship who enter permanent residential aged
care are treated in the same way as heterosexual couples.
This will mean that the new definition of children, parents and
partner will be applied for the purposes of income and assets
testing. The amount of a person s aged care fees and accommodation
costs are based on the value of his or her income and assets
(assets being assessed at 50% of a couple s combined assets and
income at half the couple s combined ordinary income).
Item 39 would ensure that when an aged care
facility is subject to sanctions the Secretary, when considering
who to contact and who is concerned for the safety, health and
well-being of a care recipient , will incorporate individuals
connected to the aged care resident through same-sex connections as
well as the traditional next of kin .
The Minister for Immigration and Citizenship administers four
pieces of primary legislation:
- Migration Act 1958;
- Australian Citizenship Act 2007;
- Immigration (Education) Act 1971;
- Immigration (Guardianship of Children) Act
1946.
Though the HREOC Report only recommended amendment to the
Migration Regulations 1994,[79] all four pieces of legislation listed above are
amended by the Bill to eliminate discrimination against same-sex
couples and their children.
The Australian Citizenship Act outlines how non-citizens can
acquire Australian citizenship, the circumstances in which it may
cease and other related matters.
Items 1 and 4 insert the standard definitions
of child and stepchild respectively into section 3 of the
Australian Citizenship Act. As the existing definition of child
under the Australian Citizenship Act includes an adopted child, a
step-child and an ex-nuptial child, the new definition proposed in
the Bill similarly expressly includes such children as well as
those that are the product of a relationship between persons of the
same or different sex. Item 3 inserts the commonly
used definition of de facto partner as defined in the AIA. These
amendments will extend the range of persons who can be considered a
child, stepchild and de facto partner for the purposes of the
Australian Citizenship Act.
The commonly used definition of parent is not to be
inserted by the proposed amendments.[80] The term responsible parent is
defined in section 6 of the Australian Citizenship Act. Amongst
other things, it provides that the person is a parent of the child
except where, because of orders made under the Family Law Act
1975, the person no longer has any parental
responsibility for the child (emphasis added).[81] Where previously the
expression parental responsibility took its meaning from the Family
Law Act, items 5 and 6 provide that the term will
specifically have the same meaning as in Part VII of the Family Law
Act. The Explanatory Memorandum explains that this amendment
prevents the Family Law Act meanings of parent and child from
overriding the Citizenship Act definitions of these terms .[82] For further
information on the definitions in the Family Law Act, the reader is
referred to the discussion on the definition of child in the
Background section above.
Parental responsibility in relation to a child for the purposes
of Part VII of the Family Law Act means all the duties,
powers, responsibilities and authority which, by law, parents have
in relation to children .[83] According to the Explanatory Memorandum, this
definition will now include parents in a de facto relationship who
had a child through an artificial conception procedure.[84] This expanded
definition is important in the context of the Australian
Citizenship Act because the child of a responsible parent may lose
their Australian citizenship if the responsible parent ceases to be
a citizen and the child does not have another responsible parent
who is an Australian citizen.[85]
Item 7 amends the way in which children born as
a result of artificial conception procedures are dealt with under
the Australian Citizenship Act. Where previously such children were
only recognised if born to a married couple, proposed
section 8 recognises children born to de facto couples.
However, children of both married and de facto relationships born
as a result of artificial conception procedures will, under the
proposed amendments only be considered the child of the woman and
husband or de facto partner and not anyone else.[86] According to the
Explanatory Memorandum, this ensures that gamete donors are not
considered to be parents for the purposes of the Citizenship Act
.[87]
Item 11 amends subsection 22(10) to amongst
other things limit eligibility for exercise of the minister s
discretion in relation to the residence requirement for the grant
of citizenship to surviving spouses or de facto partners of
Australian citizens who have not become partnered to
another person after that person s death.
The purpose of the Migration Act is
to regulate, in the national interest, the coming into, and
presence in Australia of non-citizens.[88] Presently, the Migration Regulations
1994 contain definitions of various familial relationships such as
spouse , de facto partner and parent which are used, amongst other
things when assessing eligibility for the grant of visas. This Bill
proposes to amend such definitions and transfer them into the
Migration Act while at the same time expressly preserving the
ability of the Migration Regulations to make provision in relation
to the determination of the definitions.[89]
The term spouse is not defined in the Migration Act but is
defined in the Migration Regulations. They provide that a person is
the spouse of another person if the 2 persons are either
in a married relationship (as defined) or in a de facto
relationship (as defined).[90]
Presently, subregulation 1.15(1A) provides that persons are in a
married relationship if:
- they are married to each other under a marriage that is
recognised as valid for the purposes of the Act; and
- they have a mutual commitment to a shared life as husband and
wife to the exclusion of all others; and
- the relationship between them is genuine and continuing;
and
- they either live together; or do not live separately and apart
on a permanent basis.
The substance of this definition of spouse will not change under
the proposed amendments. Under the proposed definition any marriage
between persons of the same-sex (whether entered into overseas or
otherwise) will continue to not be recognised in Australia
pursuant to the Marriage Act 1961 (the Marriage Act) and
consequently the Migration Act.[91]
Item 21 will incorporate the definition of
spouse into section 5 of the Migration Act (the interpretation
section). Importantly, the proposed definition of spouse to be
inserted into the Migration Act no longer includes persons in a de
facto relationship which means that opposite-sex de facto
relationships will no longer be considered to be spousal in nature
(for the purposes of the Migration Act).[92] These amendments run counter to the
recommendations made in the HREOC Report to retain the term spouse
to include those in a de-facto relationship.[93] However, to do so would remove the
distinction between persons in a de facto relationship and those in
a married (de jure) relationship - contrary to the
Government s view that marriage should only be between a man and a
woman.[94]
Though the term de facto partner or de facto relationship are
not defined in the Migration Act, the Migration Regulations define
the term de facto relationship .
The proposed amendments do not incorporate the commonly
used definitions of de facto partner , or de facto relationship
into the Migration Act (item 20). Instead, the
proposed definition of de facto relationship largely reflects the
current definition of de facto relationship in the Migration
Regulations, with the notable exception that the new definition
will expressly include persons in a same-sex relationship.
Though it is not clear whether a new de facto visa subclass will
be created to do away with the term interdependency ,[95] it appears the range
of interdependency visas currently available are capable of
accommodating persons in a de facto relationship (whether of the
same or opposite sex).[96] Notwithstanding, there remain some concerns as to
disparity between the spouse visas and interdependency visas. For
example, the difference in the cost of visas, as highlighted in the
HREOC Report[97]
and the number of visas granted each year. [98]
Another issue raised in the HREOC Report was the difficulty
persons in a same-sex relationship have in proving to the Minister
that they are in a genuine interdependency relationship, as
compared with persons who are married and have a marriage
certificate to submit as evidence of their relationship.[99] Under the commonly
used definition of de facto partner a deed of relationship (which
evidences that a relationship has been registered) largely negates
the need to demonstrate the circumstances to satisfy a definition
of de facto partner.[100] However, the new definition of de facto partner to be
inserted into the Migration Act does not contain a
provision expressly recognising such registrations for migration
purposes.[101]
This may affect persons in an opposite or same-sex de facto
relationship, residing in Australia that may be applying for a
partner visa or are seeking to be included in the visa application
of their de facto partner. Though such persons are not prohibited
from registering their relationship under a State or Territory
scheme,[102]
under this Bill, such registration will not have the
express recognition under the Migration Act, as it will under other
Commonwealth legislation.[103]
Though the definition of member of the family unit will not be
amended,[104]
item 25 amends existing subsection 83(1) to
provide that de facto partners are to be included in any visa
granted to their partner. Importantly, this amendment will enable
persons in a same-sex relationship to migrate to Australia
together, where previously such a right was reserved for persons in
an opposite-sex spousal (including de-facto) relationship. This
amendment is in keeping with HREOC s recommendations.[105]
The term parent is currently defined in the Migration
Regulations.[106]
The definition states that the term includes an adoptive parent and
a step-parent. Therefore, a parent-child relationship can arise
through:
- a biological relationship (where the child is the natural child
of its parent)
- an adoptive relationship or
- a step-relationship.[107]
Item 18 inserts the standard definition of
parent into section 5 of the Migration Act (the interpretation
section). It provides that someone is the parent of a person if the
person is his or her child as defined. Item
20 inserts proposed section 5CA into the
Migration Act which contains the standard definition of child of a
person . However, in addition the Bill makes specific provision for
persons who may end up with more than two parents. Proposed
subsection 5CA(2) enables the Regulations to specify that
a person will not be recognised as the child of another
person, if the person would be the child of more than two persons
for the purposes of the Migration Act. Importantly, such a scenario
may not be too uncommon, as emphasised by HREOC,
it is important to understand that gay and
lesbian parenting arrangements often involve more than two people
in the place of a parent. Where a male sperm donor is an active
parent along with a lesbian couple, the recognition of parental
status beyond the lesbian couple may be appropriate. Similarly, it
may be important to recognise the status of a birth mother to a gay
couple.[108]
Item 21 inserts a definition of relationships
and family members to accommodate the new definition of child .
This definition adopts one of the more commonly used definitions to
include:
- relationships between de facto partners (as defined in the
Migration Act)
- relationships of child and parent that arise form the standard
definition of child, and
- relationships traced through either of these types of
relationships.
The Immigration (Education) Act 1971 relates to the
provision of English courses, English tuition and citizenship
courses to immigrants and certain other persons.
Items 77 and 78 insert
definitions of child and parent respectively into section 3 of the
Immigration (Education) Act. Though the definitions rely on the
standard definitions, both terms have the same meaning as in the
Migration Act, as discussed above. This amendment will extend the
range of persons who can be considered a child or parent of a
person under the Immigration (Education) Act.
The Immigration (Guardianship of Children) Act governs the legal
guardianship of minors (persons under the age of 18 years) who
arrive in Australia unaccompanied.
Items 79 and 80 insert
standard definitions of parent and relative respectively into
section 4 of the Immigration (Guardianship of Children) Act. The
definition of relative includes:
- a parent of the person
- a step-parent or de facto partner (as defined in the AIA
not the Migration Act) of the person
- a relative of the person traced through either of these types
of relationships.
Commencement: Parts 2 and 3 (changes to
the Migration Act 1958 and the Immigration (Education)
Act 1971) commence on 1 July 2009. All other provisions
commence on a day to be fixed by Proclamation or six months after
the day of the Royal Assent whichever is the sooner.
Commencement: Generally the day after Royal Assent,
although commencement of the carriers liability amendments are tied
to commencement of the Civil Aviation Legislation Amendment (1999
Montreal Convention and Other Measures) Bill 2008.
The Civil Aviation (Carriers Liability) Act
1959 (the CACL Act) implements various international
agreements setting out the liability of an air carrier for the
death, injury or delay of a passenger.
The HREOC Report noted that the current lack of definitions of
spouse, de facto spouse, child, parent, step-parent, and step-child
in this Act would affect the provisions dealing with liability of
an air carrier and the relatives of passengers in airline
crashes.
The amendments are divided into three Parts which is required
because of the additional ramifications of the recent amendments to
the Act resulting from the 1999 Montreal Convention on carriers
liability which has not yet come into force for Australia
internationally.
Item 1replaces the term de facto spouse
with de facto partner in the definition of family member at
subsection 5(2) with the effect of expanding the range of
persons to be considered a family member under the Act to include
the same-sex partner of a passenger. The standard definition
of de facto partner is relied on. Item 2
inserts the standard tracing rule regarding family relationships
into subsection 5(2) with the effect of expanding the
definition of family member . Items 3 to
7 insert the standard definitions of child de
facto partner , parent , step-child , step-parent into subsection
5(1)with the effect of extending who can be considered a family
member of a passenger.
Items 8 to 14 are alternative
amendments that would apply if the Montreal Convention comes into
force for Australia at a date later than Royal Assent of this
Bill.
Generally the amendments to the CACL Act in this Schedule would
allow an air crash victims same-sex partner and their family to
enforce liability against the air carrier in accordance with the
provisions of the Act.
The Airports Act 1996 sets up a system for regulating
leased Federal airports and amongst other things limits ownership
of airport-operator companies. The proposed amendments in the Bill
affect the ownership provisions, particularly the meaning of
associate as set out in the definitions section in the Schedule of
the Act.
Items 16 17 amend clause 2 of the Schedule to
insert standard definitions of child and parent and items
18 to 21 amend the definition of relative in clause 2 to
include the standard definition of de facto partner ; replace
references to son and daughter with the term child; and insert the
standard family tracing note.
The effect of these amendments is that in the context of the
ownership provisions of the Airports Act, same-sex partners and
their families are now included in the definition of relative and
therefore will broaden the meaning of an associate .[109]
The amendments take effect six months after Royal Assent
(item 22).
The Navigation Act 1912 provides the legislative scheme
for many of the Commonwealth s responsibilities for maritime
matters including ship safety and the employment and conditions of
service of seafarers. The proposed amendments to this Act
broaden the meaning of families so that any rights and
responsibilities that affect the married spouses of seaman and
their families will equally affect de facto same-sex and opposite
sex partners and their families.
Items 23 28 insert the standard definitions of
child , de facto partner, parent , stepchild , as well as
clarifying the meaning of members of a person s family .
Items 29 30 amend section 70 of the Navigation
Act. This provision provides that a seaman may make allotments from
his or her wages to certain persons, including grandparents,
parents, wife, husband, brother, sister, child or grandchild. The
effect of the amendments is to extend this payment facility to a
seaman s same-sex or opposite sex partner and related family.
Item 32 amends subparagraph 156(1)(b)(i)
of the Navigation Act. This provision provides that in certain
circumstances the property of a deceased seaman may be paid or
delivered to his or her widow, widower or child. Item
32 would remove the terms widow or widower and extend this
entitlement to de facto partners of deceased sailors. The standard
definition of child inserted by item 23 (above)
would also extend it to children of same-sex partners.
Items 34 and 35 amend
section 157 of the Navigation Act.
The provision provides that in certain circumstances the Australian
Maritime Safety Authority may refuse to pay or deliver property of
a deceased sailor to a person claiming under a sailor s will, if
they are not related by blood or marriage . The amendments
repeal these words and replace them with the words relative of the
testator . A relative of the testator includes:
- the de facto partner of the testator as defined in the
Acts Interpretation Act
- a child of the testator according to the standard definition of
child, and
- anyone else who would be a relative of the person because of
these relationships.
Items 37to 39amend
section 158, the provision relating to creditors
claims on the property of a deceased seaman. The amendments
remove references to widow and widower and replace with references
to the married partners and de facto partners of deceased
sailors and broaden the meaning of next of kin to include children
and relatives according to the standard definition of child.
Commencement: The day after Royal Assent.
Schedule 12 contains amendments to the
Pooled Development Funds Act 1992 to remove
differential treatment of same-sex couples and their children. This
Act establishes a scheme under which companies providing capital to
small and medium sized Australian companies can become pooled
development funds (PDFs), which entitles those companies to more
competitive tax treatment.
The HREOC Report noted that under the current Act there is no
definition of child or parent and that the definition of de facto
spouse excludes a same-sex partner. These omissions have an effect
on the definition of associate and therefore on the operation of
section 31. Section 31 provides that a
person together with associates of the person must not
hold more than 30% of the issued shares in a PDF.
The amendments insert the standard definitions of child , parent
, and de facto partner and amend the definition of associate
appropriately. The effect of the amendments is to extend the range
of persons who can be considered an associate of a person who is a
shareholder in a PDF to include same-sex partners and their
families.
Commencement: 1 July 2009
The Privacy Act 1988 regulates the collection, holding,
use, disclosure, correction and transfer of personal information of
individuals by Commonwealth agencies and by private sector
organisations. Central to the Act are privacy principles
(Information Privacy Principles and National Privacy Principles)
that agencies and organisations must adhere to.
The Privacy Act contains several references to the term family
.[110] The Act
does not define the meaning of family and therefore the term would
take its ordinary meaning which may not extend to same-sex partners
and their families. Item 1 inserts in
proposed subsection 6(10) a definition to
extend the ordinary meaning of the term family to include a de
facto partner, a child of the person and anyone else that is
considered to fall within this category when the de facto partner
or child is recognised as a member of the family . The standard
definitions of child and de facto partner are relied on.
The remaining amendments to the Privacy Act (items
2-7) affect one of the National Privacy Principles that
deal with disclosure of personal information. Specifically
subclause 2.4 of Schedule 3 of the Privacy Act deals with
disclosure by a health service provider of health information about
an individual to a person responsible for the individual.
Subclause 2.5 defines the meaning of person responsible to include
amongst other things a parent, child or sibling, spouse or de facto
spouse, a relative or guardian. The amendments in the Bill replace
the term de facto spouse with the term de facto partner ; insert
the standard definitions of de facto partner and step child ; and
expand the existing definitions of child, parent and relative to
include the standard definitions. The effect of the amendments is
that same-sex de facto couples and their families would be included
in the meaning of a person responsible for the purposes of
disclosure of health information.
Commencement: The day after Royal Assent.
Part 1 Amendment of tax laws
The analysis relating to the tax legislation does not follow the
order of the items numbers but rather is set out according to
themes.
There are two principal pieces of federal income tax
legislation, the Income Tax Assessment Act 1936 (Cth)
(ITAA36) and the Income Tax Assessment Act 1997
(ITAA1997). This legislation covers a variety of issues related to
personal income taxation, including how to assess tax liability and
various income deductions and tax offsets. In addition, the federal
government assesses fringe benefits tax on employers under the
Fringe Benefits Tax Assessment Act 1986 and goods and
services tax under A New Tax System (Goods and Services Tax)
Act 1999 and related legislation.
The HREOC Report noted that under existing tax legislation
same-sex couples are not eligible for a range of rebates and tax
concessions available to opposite-sex couples. This means same-sex
couples may end up paying more tax than opposite-sex couples
because tax legislation does not recognise their relationship. The
report further notes that some children raised by same-sex couples
are not recognised as the children of both members of that couple
for the purposes of tax law. This may also mean that same-sex
parents and their children may miss out on tax benefits intended to
help families.
The problem arises as a result of the definitions of spouse and
child in the relevant taxation legislation. The definition of
spouse excludes a person in a same-sex couple. The definition of
child does not encompass a child born to a lesbian co-mother or gay
co-father.
The proposed amendments in Schedule 14 of the Bill are aimed at
addressing this issue of differential treatment of same-sex couples
and their families.
Items 90 95 of Schedule 14 are
central to the amendments to the tax legislation. They insert into
the ITAA97 standard definitions that are to be generally relied on
through all parts of the tax legislation that deals with family
relationships.
Item 90 inserts proposed Subdivision
960-J into the ITAA97 to define certain family
relationships for the purposes of the tax legislation.
The two objects of the Subdivision are to ensure that, where the
Subdivision applies:
- the same consequences flow from the relationship two people
have as an unmarried couple as from a marriage, if their
relationship is registered in a State or Territory relationship
register or if they live together on a genuine domestic basis,
and
- anyone who is defined to be an individual s child by
section 995-1(1) is treated in the same way as if he or she
were the individual s natural child (proposed
section 960-252).
Proposed section 960-255 of the ITAA97
provides for the recognition of these family relationships.
Proposed subsection 960-255(1) provides
recognition to relationships traced through relationships between
couples. If one individual is the spouse of another
individual (as newly defined in subsection 995-1(1) below),
the couple will be considered to be members of each other s
family.
Proposed subsection 960-255(2) provides
recognition to relationships involving children. It recognises as
relatives of a child the relatives of a person who is the parent of
a child as a result of adoption, a step-relationship, or because
the child is the product of a relationship the person had as a
couple with another person.
These tracing rules are to apply in other tax Acts (including
the ITAA36 and the FBT Assessment Act) where definitions of child,
parent, relative or spouse would be relevant (proposed
subsection 960-255(3)).
Spouse is currently defined in subsection 995-1(1) of the ITAA97
to include a person who, although not legally married to the
person, lives with the person on a genuine domestic basis as the
person s husband or wife. Item 95 repeals and
replaces the definition to expand the ordinary meaning of spouse to
include:
- another individual (whether of the same or opposite sex) with
whom the individual is in a registered relationship as set out in
new section 22B of the Acts Interpretation Act,
- another individual who, although not legally married to the
individual, lives with the individual on a genuine domestic basis
in a relationship as a couple.
It is of interest that the drafter considered it important to
add the qualification of both same and opposite sex relationships
to one part of this definition but not to the other. This is in
contrast to the definition of de facto relationship inserted into
other parts of the tax legislation where in some cases the
qualifier is there for both parts of the definition (see for
example item 36).[111]
The meaning of child of a person is currently defined and
expanded in subsection 995-1(1) of the ITAA97 to include the
person s adopted child, step‑child, or ex-nuptial child.
Item 91 repeals and replaces this definition. The
new definition of child preserves these existing categories of
recognised children and adds:
- a child of the individual s spouse
- someone who is the product of a relationship the individual has
or had as a couple with another individual (whether of the same sex
or different sex). A person cannot be a product of a relationship
unless they are biologically related to at least one of the people
in that relationship, or are born to a woman in the
relationship.
The definition provides recognition of children of all de facto
relationships (both opposite sex and same-sex) and is closely based
on the standard definition of child as set out in other Schedules
of the Bill.
Item 92 inserts a definition of parent into
subsection 995-1(1) of the ITAA97. The definition
provides that someone is the parent of anyone who is their child
(as newly defined).
The existing definition of relative in subsection 995-1(1)
of the ITAA97 remains, but will be affected by virtue of the new
definitions of spouse, child and parent. Also, item
94 inserts a note at the end of the definition of relative
referring the reader to the possibility that section 960-255
of that Act, which provides rules for determining when certain
family relationships are recognised, may affect it.
The A New Tax System (Medicare Levy Surcharge Fringe
Benefits) Act 1999 imposes a Medicare levy surcharge of 1 per
cent of income on taxpayers where their income exceeds a certain
threshold and they do not have private patient hospital insurance.
The Act also requires the value of a taxpayer s fringe benefits to
be included as income for determining liability for the Medicare
levy surcharge. HREOC in its report noted the following
inequity:
For the 2005-2006 tax year, the surcharge
threshold was $50 000 for an individual and $100 000 for a family.
The family threshold increases by $1500 for each dependent child
when there is more than one. The family threshold is met by a
person s taxable income plus the taxable income of a
spouse.[112]
The HREOC Report noted that a same-sex couple can be
disadvantaged in relation to the Medicare levy surcharge because
taxpayers who are in same-sex relationships are assessed under the
individual rate rather than the rate for families. For example, if
one partner in a same-sex couple was earning $40 000 and the other
$59 000 the latter partner would be required to pay a surcharge of
$590 because $59 000 is over the $50 000 individual threshold.
However, an opposite-sex couple in the same situation would not pay
any surcharge because the joint income of the two partners ($99
000) is under the family threshold of $100 000.[113]
Existing subsection 7(1) of the Medicare Levy Surcharge Act
expands the ordinary meaning of married for the purposes of the Act
to include opposite‑sex de facto couples who have lived
together as husband and wife on a bona fide domestic basis,
although not legally married to each other.
Item 1 repeals and replaces
subsection 7(1) to expand this definition to
include de facto same-sex couples. New subsection
7(1) states that for the purposes of the Act, the use of
the term married is extended so that it applies to two persons
(whether of the same or opposite sex) as if they were
married to each other for a period if:
- their relationship was a prescribed registered relationship for
that period as set out in new section 22B of the Acts
Interpretation Act,[114] or
- they lived together in a relationship as a couple on a genuine
domestic basis for the period, although not legally married to each
other.
This essentially replicates the definition of
spouse as described above.
Item 1 also inserts proposed subsection
7(1A) to qualify this definition. For the purposes of the
Act, someone who is legally married or in a registered relationship
is treated as not being legally married or in that registered
relationship if they are living in a genuine domestic relationship
with someone else.
The Fringe Benefits Tax Assessment Act 1986 provides
for the assessment of the amount of tax payable by an employer for
benefits provided to its employees and their associates.
The HREOC Report noted several issues regarding discriminatory
treatment in relation to same-sex relationships and fringe benefits
tax (FBT).
For example, FBT is assessed on an
employer who provides benefits such as loans, free housing or other
benefits to an employee or his or her associates . Under the
existing Act a same-sex partner is not an associate . An
associate includes a spouse , relative , or child . The FBT
Assessment Act defines all these terms by reference to the ITAA97.
This means that under the existing legislation a same-sex partner
and his or her relations would not be included when considering
liability for FBT.
Another example of discriminatory
treatment is that same-sex partners are not covered by a range
of FBT exemptions available to a spouse . For example, FBT is not
payable on the provision of accommodation, residential fuel and
meals to a residential employee during a period of accommodation
for a spouse or child [115].
The changes required to remove this discriminatory treatment are
done mainly through the amendments to the ITAA97 described above
under the heading Family relationships in tax legislation.
For example the definition of associate will have a new meaning
because of the insertion of the new definitions of spouse and child
in the ITAA97 which broaden the meaning of these terms to encompass
same-sex couples and their families.
The amendments to the FBT Assessment Act
are therefore minor. Items 3
to 5 are linking amendments. They point to
definitions of parent and relative in the ITAA97 that may affect
the meaning of these terms under the FBT Assessment Act.
The Medicare levy is a tax imposed upon personal incomes to fund
the Medicare scheme. The Medicare levy is 1.5% of an individual s
taxable income.[116] However, at low levels of income the levy may reduce
according to either individual or family income.
The HREOC Report noted that it may be
harder for a same-sex family to get an exemption. A taxpayer in
a same-sex relationship can only receive an exemption if his or her
income is under the individual income threshold exemption. This may
be an advantage or disadvantage to a same-sex couple depending on
the income levels of each member of the couple.
Part VIIB of the ITAA36 relates to the Medicare levy and the
Medicare levy surcharge. Existing subsection 251R(2)
provides a definition of de facto relationship for the purposes of
imposition of the levy. Item 33 repeals the
existing definition and replaces it with a definition that is
inclusive of same-sex de facto relationships. Proposed
subsection 251R(2) will provide that Part VIIB and
any Act imposing the Medicare levy will apply to two persons
(whether of the same or opposite sex) as if they were married
if:
- their relationship is registered under a law of a State or
Territory prescribed for the purposes of subsection 22B of the
Acts Interpretation Act, or
- they lived together in a relationship as a couple on a genuine
domestic basis, although not legally married to each other.
The definition is qualified to the extent that someone who is
legally married or in a registered relationship is treated as not
being legally married or in that registered relationship if they
are living in a genuine domestic relationship with someone
else. In other words only one relationship will be recognised
during any period (proposed subsection
251R(2A)).
The definition of dependant does not require amendment as
same-sex couples and their families will automatically be included
by virtue of the new definitions of spouse and child to be inserted
into the ITAA97.
Many of the proposed amendments in Schedule 14 of the Bill
relate to provisions dealing with tax implications on the transfer
of property on the breakdown of family relationships.
Following a family breakdown the
transfer of property to a spouse or child may attract favourable
tax treatment.[117] Further, income earned on property held for the
benefit of a child after a relationship breakdown may also be
eligible for favourable treatment.
The HREOC Report highlighted that these concessions are not
available to same-sex families. As it noted, favourable capital
gains tax treatment is available for transfer of property to a
spouse or former spouse following a relationship breakdown.
However, a transfer to a same-sex partner is not a transfer to a
spouse so same-sex couples do not enjoy these benefits.
The burden of this discrimination is described in a recent
decision of the Administrative Appeals Tribunal quoted in the HREOC
Report.
In The Roll-over Relief Claimant and
Commissioner of Taxation the applicant and her partner faced a
bill for capital gains tax of $19 262 and $22 780 respectively on
relationship breakdown. An opposite-sex couple in the same
situation would pay no capital gains tax on this property
transfer.[118]
Favourable tax treatment is also available for income earned on
property that has been transferred to a child, or a trustee on
behalf of a child, if such a transfer is the result of a family
breakdown .[119]
Without this favourable tax treatment, the income would be taxable
at a penalty rate.
Under paragraph 102AGA(2)(a) of the ITAA36 a family breakdown
occurs when:
a person ceases to live with another person as the spouse of
that person on a genuine domestic basis (whether or not legally
married to that person).
Since a same-sex partner is not a spouse this provision does not
cover a separating same-sex couple.
The effect of the family breakdown provision is that a same-sex
couple transferring property to a child (or a trustee on behalf of
a child) when their relationship breaks down will be taxed at the
top marginal rate. An opposite-sex couple in the same situation
will be taxed at normal marginal rates, which usually are much
lower.
Item 15 repeals the definition of de facto
marriage in section 102AAB of the ITAA36, a special definitions
section relating to trusts. The concept of de facto marriage
extends to opposite‑sex couples who have lived together as
husband and wife on a bona fide domestic basis, although not
legally married to each other. Item 16 inserts a
definition of de facto relationship into this section. It
replicates the current definition of de facto marriage but applies
it equally to same-sex and opposite sex relationships and extends
it to cover relationships registered under prescribed state or
territory laws.
Items 21 28 make amendments to section
102AGA of the ITAA36 which is the provision that defines
the meaning of the transfer of property as the result of a family
breakdown for taxation purposes. They are essentially consequential
amendments resulting from the amended definitions of spouse and
parent in the ITAA97 and reflect the inclusion of same-sex couples
and their families in any provisions dealing with family.
Subdivision 272 D of Schedule 2F of the ITAA36 deals with family
trusts. Subsection 272-90(2A) provides that certain former
family members are members of a person s family group in relation
to conferral of a present entitlement to, or a distribution of,
income or capital of a company, partnership or trust, upon or to
the person. Items 51 54 amend
subsection 272-90(2A) to broaden the range of
people and to avoid differential treatment for same- sex de facto
families including former or deceased partners and step
children.
Section 272 140 contains relevant definitions for the purposes
of the provisions dealing with family trusts. Item
56 repeals the definition of breakdown in the marriage and
item 57 inserts a definition of
breakdown in the marriage or relationship . The definition provides
that there is a breakdown in the marriage or relationship of an
individual if the individual is living with another individual in a
genuine domestic relationship as a couple (whether the individuals
are of the same or opposite sex, and whether legally married or
not) and ceases to do so.
Section 126-5 of the ITAA97 provides a capital gains tax
(CGT) roll‑over in certain circumstances where assets are
transferred from an individual to his or her spouse or former
spouse under a court order relating to the breakdown of their
relationship. Under the existing law, a CGT roll‑over is
available in particular circumstances including: if there is a
court order under the Family Law Act 1975 or a
corresponding foreign law or a court order under a state or
territory law or foreign law relating to marriage or de facto
marriage breakdowns (which only applies to opposite sex de facto
breakdowns).
Items 71 74 amend this provision with the
effect of extending the provision to cover transfers of assets
because of a court order under the Family Law Act 1975 or
under a state or territory law, or foreign law relating to
breakdowns in a relationship between spouses.
Because of the new definition of spouse this will extend the
provision to cover breakdowns in same-sex relationships. The
amendments also extend the provision to cover state or territory
laws relating to marriage breakdowns.
Items 75
78 make similar amendments to
section 126-15 of the ITAA97. The section
currently provides a CGT roll‑over if assets are transferred
from a company or trustee as a result of the breakdown of a family
relationship.
Items 80 83 make similar amendments to
section 126-140 of the ITAA97. The section
currently provides a CGT roll‑over in certain circumstances
involving the transfer of an interest in a small superannuation
fund as a result of the breakdown of a family relationship.
The amendments to the tax laws have various application dates.
The amendment of the Medicare Levy Surcharge Act, the ITAA36 and
the ITAA97 would apply from the 2009 2010 year of income and
subsequent years (items 2, 58 and
96 respectively). The amendments which affect the
FBT Assessment Act would apply in relation to the FBT year starting
on 1 April 2009 and subsequent years (item
6).
The Financial Sector (Shareholdings) Act enables the government
to regulate merger and acquisition activities concerning financial
sector companies. Under Part 2 of the Act, the term associate is
used to determine a person s stake in a financial sector company
(which includes shareholdings of the person s associates), or
whether a person has practical control of a financial sector
company (which includes the control or influence of the person s
associates).
Under existing clause 4 of Schedule 1[120] of the Act, the term associate
includes a relative of the person. The term relative is
defined in clause 2 to include the person s spouse, parent, son or
daughter and 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. These terms do not include
same-sex partners and their children.
Items 98 and 99 would
insert standard definitions of child and parent into clause 2 of
Schedule 1 of the Act. Items 100 102 amend the
definition of relative in clause 2 to insert the standard
definition of de facto partner, insert a standard tracing rule for
determining when certain family relationships are recognised; and
remove references to son and daughter and replacing them with the
term child .
The effect of these amendments is to broaden the meaning of
relative to include same-sex couples and their families. This would
in turn broaden the definition of associate and as a result,
same‑sex partners and their children will be subject to the
same statutory limits in regard to company ownership as
opposite-sex partners, their children and relatives.
The amendments to the Foreign Acquisitions and Takeovers Act
1975 (the Act) affect the meaning of associate . Under the Act
if a foreign person alone or together with any associates is in a
position to control not less than 15 per cent of the voting power
or issued shares of a corporation they are subject to the Act and
required to seek approval from the Treasurer for any acquisition
beyond this level.
Items 108 110 insert into the definition of
associate in section 6 the standard definition of de facto partner
, remove references to son or daughter; insert the term child with
its standard definition; and the standard tracing rule regarding
certain family relationships.
The effect of these amendments is to broaden the meaning of
associates to include both same-sex and opposite sex de facto
partners and their families. As a result, same-sex partners and
their children will be subject to the same statutory limits in
regard to company ownership as opposite-sex partners, their
children and relatives.
The amendments to the Insurance Acquisitions and Takeovers Act
affect the meaning of associate . The term associate is used in the
Act to determine the level of a person s acquisition in relation to
an insurance company (which includes the acquisitions of the person
s associates), or a person s influence over directors of an
insurance company (which includes the influence or control of the
person s associates).
The amendments essentially replicate the amendments to the
Financial Sector Shareholdings) Act discussed above. Items
112 to 118 amend the definition of
relative to include same-sex partners and their families. This in
turn broadens the definition of associate and as a result same-sex
partners and their families would be subject to the same statutory
limits in regard to insurance company ownership as opposite-sex
partners and their families.
The amendments to the Life Insurance Act affect provisions which
refer to spouse and other family members.
Section 204 of the Life Insurance Act provides that the
rights or interests of a person under his or her life policy, or a
life insurance policy of his or her spouse, is not liable
to be used in discharging a debt owed by the person. The
existing definition of spouse includes opposite sex de facto
couples but not same-sex de facto couples. Item
120 would insert the words or de facto partner after
spouse in this section with the effect of allowing same‑sex
couples to have the protection afforded by this provision.
The standard definition of de facto partner is inserted by
item 126 and the existing definition of
spouse is removed by item 128.
Sections 211 and 212 of the Life Insurance Act currently
allows an insurance company to make payment under certain life
policies to the spouse, father, mother or other relatives
of the deceased, without requiring a letter of probate or
administration, where the amount payable under the life policy is
under $50 000. The use of the term spouse currently would prevent
payments to be made to a same-sex partner of a deceased person or
their children.
Items 121 to 124 would amend
these two provisions by inserting the terms de facto partner , and
parent ; removing the words father and mother ; and inserting the
standard tracing rule for families. The standard definitions of
child , de facto partner and parent inserted by items 125 to
127 would also be relied on.
The effect of these amendments is that life insurance companies
would be permitted to make payments to the same‑sex partner
of a deceased person or their children where the total amount
payable is under $50 000. They would only apply to life policies of
individuals who die on or after the date of Royal Assent
(item 129).
The Corporations Act forms part of a national regulatory
framework for corporations and the securities and futures sectors
in Australia.
The effect of the amendments would be to remove differential
treatment of same-sex couples from the Corporations Act.
Item 143 is the most significant amendment. It
inserts into section 9 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 close associate, immediate family member and related entity .
Other amendments include insertion of the standard definitions of
child and parent and clarification on the meaning of family
relationships.
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 200D of the
Corporations Act, directors and other office holders of companies
and their spouses and relatives must not receive certain benefits
from the company. The amendments would mean that office holders
same-sex partners and their families would also be subject to this
provision.
The amendments presented in Schedule 15 propose to amend the
Veterans Entitlements Act 1986 (VEA), the Military
Rehabilitation and Compensation Act 2004 (MRCA) and the
Defence Service Homes Act 1917 (DSHA) to remove the
differential treatment of same-sex couples in these acts. Hitherto,
the VEA has been very much like the Social Security Act
1991 (SSA) in regarding persons in a partner like relationship
as only applying to persons of the opposite sex.
Item 1 proposes to insert a definition of de
facto partner into subsection 4(1) of the DSHA that refers to the
definition of de facto partner in the Acts Interpretation Act
1901 (AIA). Section 4 in the DSHA is the interpretation
section setting out the definitions of terms used in the Act.
Currently, subsection 4(1) of the DSHA does not contain a
definition of de facto partner .
Item 2 proposes to add after the word married
in the definition of dependent parent in subsection 4(1) the words
and did not have a de facto partner . This definition will broaden
the application of dependent parent in the DSHA to include cases
where the deceased person was not either married or in a de facto
relationship.
Item 6 inserts a definition of parent into
subsection 4(1) of the DSHA which is consistent with recognising
same-sex relationships.
Item 7 proposes to delete the current
definition of widow in subsection 4(1) and item 8
proposes a replacement definition of widow . The replacement
definition of widow uses the new term de facto partner .
Item 10 does the same as items 7
and 8, but in reference to the definition of
widower in subsection 4(1), using the new term de facto partner
.
Items 9 and 11 detail that
these new definitions of widow and widower proposed to be inserted
into the DSHA are to apply from 1 July 2009.
Items 12 to 32 make
consequential amendments to various sections and parts of the DSHA
replacing terms such as wife and husband with spouse or de facto
partner .
Item 34 proposes to insert a definition of
child into section 5 of the MRCA, being the definitions section of
the act. This child definition is consistent with the child
definition used in this Bill, to be applied to various Acts amended
by the Bill. Likewise item 35 proposes to insert a
definition of parent into section 5 of the MRCA, being the
definition of parent that hangs of the child definition in
item 34.
Item 36 proposes to delete references to a
person of the opposite sex in the partner definition in section 5
of the MRCA. This will allow persons of the same-sex, who are
living with another person of the same-sex on a genuine domestic
basis, to be considered as partnered. Under the current wording
only persons of opposite sex can be regarded as partnered.
Item 39 inserts a new definition of stepchild
into section 5 of the MRCA and this definition is consistent with
other definitions of stepchild in the Bill. Likewise item
40 does the same inserting a new definition of step-parent
.
Items 42, 44 and 45 present
amendments to replace gender specific language such as son or
daughter with non-gender specific language such as child .
Item 43 proposes to replace section 16 of the
MRCA the adoptive relationships definition section with a
new section 16 encompassing broader definitions of
adoptive relationships for the purposes of the MRCA.
Item 52 proposes to amend the definition of
widow in subsection 5E91) of the VEA to remove references to a
widow living with a man to a widow living with a person . Broadly
the changes will de-genderise the terms widow and widower in the
VEA. In other Acts, the Bill removers terms like widow and widower
but this is more difficult within the VEA because of the existence
of the War Widow s/er s Pension in the VEA and the extensive use of
these terms in the VEA. This will mean that a widow will be able to
include a woman who was living with another person of the same-sex,
not just a woman living with a man. Item 53 does
likewise but for the definition of widower living with another
person of the same sex, not just living with a woman.
Items 54 to 56 amend the
definition of member of a couple in the VEA to include persons of
the same-sex.
Item 60 deletes the current definition of a
parent in subsection 5F(1) of the VEA and refers to the new broader
definition of parent in section 10A to be inserted by
proposed item 73.
Item 61 proposes to insert a new definition of
step child into subsection 5F(1) to provide for a child to be the
step-child of non-married parents. Item 62
proposes to insert a definition of step-parent into subsection
5F(1) and encompasses a person who is the de facto partner of a
parent of a child.
Paragraph 5G(1A)(b) of the VEA encompasses the consideration of
a persons family relationships in Australia to aid in determining
if the person is resident in Australia. Item 63
inserts new sub-sections 5G(1AB) to include what will be a family
relationship.
Items 64 and 65 propose to
amend the current gender specific definitions in the VEA like
father , mother , son and substitute other non-gender specific
definitions like parent , child and brother or sister of the person
.
Item 69 proposes to amend paragraph 5R(5)(b) of
the VEA which refers to definitions of illness separated couples.
There are definitions of illness separated couples and non-illness
separated couples used in the VEA. Illness separated couples
commonly refers to where one of a couple goes into hospital for a
prolonged period or goes to reside at another address to seek
medical treatment. They are still regarded as a couple. It can also
refer to where one of a couple goes into a nursing home again they
are still regarded as a couple but each can be paid the single rate
as they are living apart on a long-term basis. Non-illness
separated couples can be terminology that can be used to refer to
separated couples who have separated for other reasons, commonly
relationship breakdown. References to the matrimonial home are
replaced with references to their home. This amendment has the
intention that such illness separated couples are still regarded as
couples and not deemed to be separated.
Item 70 proposes to amend definitions in
section 10 of the VEA which refer to the definition of a child of a
veteran or other person to replace gender specific terms like
father , mother and woman .
Item 73 proposes to insert a new definition of
parent of a person into section 10 of the VEA. The definition
proposed is quite broad and makes no gender requirements but does
require the child to be a biological child of one of the persons in
the relationship or was born to a woman of the relationship. This
definition therefore will include same-sex parental relationships
and is consistent with the standard definitions applied throughout
the Bill.
Items 74 to 76 proposes to
amend references in the VEA to marriage-like and married to to de
facto .
Items 77 and 78 propose
amendments to the compensation provisions in the VEA in Division
5A. The term the spouse is to be replaced with the term partner or
non-illness separated spouse thereby applying the compensation
provisions to all situations of same-sex or opposite sex de facto
relationships.
Items 81 to 84 propose
amendments to the VEA in reference to partner service pension. A
former partner of a service pensioner can continue to receive
partner service pension even though separated from the former
service pensioner partner. Service pension stops if they move into
a marriage-like relationship but currently this only applies where
the new partner is a person of the opposite sex. The amendments in
items 81 to 84 will provide for
the cessation of qualification to partner service pension where the
person moves into a marriage-like relationship with a person of the
same or opposite sex.
Items 86 to 89 proposes
amendments similar to those presented in items 81
to 84 but in reference to a partner service
pension being received after the death of the service pensioner. A
former partner of a service pensioner can receive partner service
pension after the death of their service pensioner partner.
However, they cease to qualify if they enter a marriage-like
relationship. Currently, this only refers to a marriage-like
relationship with a person of the opposite sex, so the amendments
proposed in items 86 to 89 will
provide for the cessation of qualification to partner service
pension where the person moves into a marriage-like relationship
with a person of the same or opposite sex.
Items 90 to 95 propose
amendments to the definitions of child and relatives in various
sections in the VEA. The amendments will align these definitions
with the standard definitions applied throughout the Bill.
Item 96 is a savings provision proposed to be
inserted into the VEA with reference to the proposed amendments to
subsections 38(2A) and 38(3A) of the VEA
(Items 81 to 84 of Schedule 15 of
this Bill), which refers to qualification to partner service
pension. The savings provision is to apply the proposed amendments
in respect of qualification to partner service pension from 1 July
2009 onwards.
Contrary to the HREOC Report suggestion that All it takes is a
few changes to the definitions in some federal laws , the Bill is
long and complex and has raised many serious issues. The Government
has foreshadowed that it will introduce further amendments and it
will be interesting to see how these address concerns. The time
frame for consideration of the Bill has perhaps not been
commensurate with the complexity of the issues.
[7]. Attorney-General's Department - Answers
to Questions on Notice,
http://www.aph.gov.au/senate/committee/legcon_ctte/
same_sex_general_law_reform/submissions/add01.pdf accessed on 8
October 2008.
[16]. Mr Robert
spoke on the matter in the House commenting on some disturbing
trends in the way the Rudd Labor government is treating the
institution and indeed the foundation of marriage ,House of
Representatives, Debates, 17 September 2008, p.101. See
also the Superannuation Bill Second Reading Speeches of Messrs
Robert, Morrison, Andrews and Katter and Mrs Vale.
Wayne Morgan, Submission
no. j59, p. 3,
http://www.aph.gov.au/senate/committee/legcon_ctte/
same_sex_entitlements/submissions/subj59.pdf accessed on 3
October 2008.
[53]. Two persons are related by family if:
one is the child of the other; or one is another descendant of the
other or they have a parent in common. Relationships in these
categories established by adoption are also related by family
(proposed subsection 22C(6)).
[117]. As explained by Miranda Stewart: Effectively,
the tax on any capital gain in the assets transferred to the spouse
is deferred and the gain is taxable only on the subsequent disposal
of those assets by the spouse. Miranda Stewart, Submission to HREOC
inquiry 266.
Mary Anne Neilsen, Kirsty Magarey, Elibritt Karlsen,
Peter Yeend, Dale Daniels and Laura Rayner
14 October 2008
Bills Digest Service
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