Footnotes

Chapter 1 - Introduction

[1]        National Welfare Rights Network, Submission 29, p. 2.

[2]        Law Council of Australia, Submission 21, p. 4.

[3]        Australian Coalition for Equality, Submission 19, p. 4.

 

Chapter 2 - Overview of the Bill

[1]        Human Rights and Equal Opportunities Commission, Same-Sex: Same Entitlements: National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits, May 2007, Appendix 1.

[2]        Human Rights and Equal Opportunities Commission, Same-Sex: Same Entitlements: National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits, May 2007, p. 382.

[3]        The Hon. Robert McClelland MP, Attorney-General, 'Rudd Government moves on same-sex discrimination', 30 April 2008.

[4]        The committee has conducted a separate inquiry into the provisions of the Superannuation Bill, and will table that report concurrently with the committee's report into the provisions of the Bill.

[5]        The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, pp 4 & 6.

[6]        Explanatory Memorandum, pp 2-4.

[7]        The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 4.

[8]        Proposed section 22A of the Acts Interpretation Act 1901

[9]        The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 4.

[10]      The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 4. The committee notes that neither the Superannuation Bill nor the Family Law Act 1975 is affected by this amendment.

[11]      Proposed section 22B of the Acts Interpretation Act 1901

[12]      The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 4.

[13]      Proposed section 22C of the Acts Interpretation Act 1901

[14]      Proposed paragraphs 22C(2)(a)-(h) of the Acts Interpretation Act 1901

[15]      Proposed subsections 22C(2)-(5) of the Acts Interpretation Act 1901

[16]      Proposed addition to subsection 3(1) of the Crimes Act 1914

[17]      Explanatory Memorandum, p. 8. It states also that the amendment will extend recognition to children of opposite-sex relationships who are not already covered by existing statutory definitions. The committee notes that the removal of this discrimination is not an objective of the Bill.

[18]      For example, see Same-Sex Relationships (Equal Treatment in Commonwealth Laws- Superannuation) Bill 2008, Professor Jenni Millbank, Submission 8, p. 2.

[19]      Explanatory Memorandum, p. 8. Also, see Same-Sex Relationships (Equal Treatment in Commonwealth Laws- Superannuation) Bill 2008, Attorney-General's Department, Submission 38, p. 2.

[20]      Explanatory Memorandum, pp 9-10.

[21]      Proposed addition to section 95 of the Service and Execution of Process Act 1992

[22]      Explanatory Memorandum, p. 11.

[23]      Proposed addition to subsection 3 of the Australian Citizenship Act 2007

[24]      Proposed addition to subsection 3 of the Seafarers Rehabilitation and Compensation Act 2002

[25]      The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 5. 

[26]      The Hon. Robert McClelland MP, Attorney-General, House Hansard, 4 September 2008, p. 6.

 

Chapter 3 - Key issues

[1]        Gay & Lesbian Rights Lobby (NSW), Submission 18, p. 4.

[2]        Australian Human Rights Commission, Submission 12, p. 5; and Human Rights and Equal Opportunities Commission, Same-Sex: Same Entitlements: National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits, May 2007, p. 80. The committee also supported these criteria in its inquiry into the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008: see Senate Standing Committee on Legal and Constitutional Affairs, Report into the Provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, September 2008.

[3]        Proposed subsection 22C(5) of the Acts Interpretation Act 1901

[4]        Explanatory Memorandum, p. 7. The committee notes that this is the current position under the Family Law Act 1975.

[5]        Mr Richard Egan, FamilyVoice Australia, Committee Hansard, Canberra, 22 September 2008, p. 14. Also, see Presbyterian Church of Australia, Church and Nation Committee, Submission 16, p. 1.

[6]        Gay and Lesbian Equality (WA) Inc, Submission 34, p. 2.

[7]        Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 61.

[8]        Proposed paragraph 22C(2)(b) of the Acts Interpretation Act 1901

[9]        National Welfare Rights Network, Submission 29, p. 5. Also, see Ms Linda Forbes, National Welfare Rights Network, Committee Hansard, Canberra, 23 September 2008, p. 40; and Students Representative Council, University of Sydney, Submission 24, p. 2.

[10]      Mr Richard Egan, FamilyVoice Australia, Committee Hansard, Canberra, 22 September 2008, p. 11; and FamilyVoice Australia, Submission 4, p. 6.

[11]      Gay & Lesbian Rights Lobby (NSW), Submission 18, pp 4-5 & 14. Also, see Mr Neil Appleby, Submission m30.

[12]      For example, NSW Young Lawyers, Submission 22, pp 4-6; Human Rights Law Resource Centre, Submission 14, p. 4; Coming Out Proud Program, Submission 2, p. 3; Student Representative Council, University of Sydney, Submission 24, p. 1; Lesbian and Gay Solidarity (LGS) Melbourne, Submission 8;  Australian Coalition for Equality, Submission 19, p. 5; Liberty Victoria, Submission 31, p. 1.

[13]      Liberty Victoria, Submission 31, p. 3.

[14]      Australian Coalition for Equality, Submission 19, pp 10-11.

[15]      Tasmanian Gay and Lesbian Rights Group, Submission 13, p. 5. Also, see Mr Kevin Boreham, Submission36, p. 2.

[16]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, pp 48-49.

[17]      Mr Neil Appleby, Submission m30

[18]      Australian Coalition for Equality, Submission 19, p. 12. The committee notes that this argument was raised also in the inquiry into the Superannuation Bill.

[19]      Mr Wayne Morgan, Australian Coalition for Equality and Tasmanian Gay and Lesbian Rights Group, Committee Hansard, Canberra, 23 September 2008, pp 19-20.

[20]      Presbyterian Church of Australia, Church and Nation Committee, Submission 16, p. 2. Also, see Mr Richard Egan, FamilyVoice Australia, Committee Hansard, Canberra, 22 September 2008, p. 12.

[21]      Proposed section 5F of the Migration Act 1958

[22]      Section 12 of the Migration Act 1958

[23]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, pp 43 & 53.

[24]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 43; Mr Wayne Morgan, Australian Coalition for Equality and Tasmanian Gay and Lesbian Rights Group, Committee Hansard, Canberra, 23 September 2008, p. 20; and  Mr Jamie Gardiner, Liberty Victoria, Committee Hansard, Canberra, 22 September 2008, p. 27.

[25]      Ms Kate Temby, AHRC, Committee Hansard, Canberra, 22 September 2008, p. 7.

[26]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 44.

[27]      Proposed section 22A of the Acts Interpretation Act 1901

[28]      Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008, Explanatory Memorandum, p. 6.

[29]      Australian Coalition for Equality, Submission 19, p. 13. Also, see Superannuated Commonwealth Officers’ Association, Submission 7, p. 1; and Comsuper Action Committee, Submission 15, p. 1.

[30]      Australian Human Rights Commission, Submission 12, p. 6. The committee notes that it canvassed this issue during its inquiry into the provisions of the Superannuation Bill, and agreed that, in some instances, the automatic application of a model definition would not be appropriate. See Senate Standing Committee on Legal and Constitutional Affairs, Report into the Provisions of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008, October 2008

[31]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 52. A representative from the GLR Group questioned the legitimacy of this rationale, arguing that the state and territory referring legislation uses a definition of de facto relationship, which includes opposite-sex and same-sex marriage-like relationships. See Mr Wayne Morgan, Australian Coalition for Equality and Tasmanian Gay and Lesbian Rights Group, Committee Hansard, Canberra, 23 September 2008, p. 20.

[32]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 52.

[33]      Let's Get Equal Campaign, Submission 11, p. 1. Cf. the Australian Christian Lobby, Submission 10, p. 4. Also, see Mr Wayne Morgan, Australian Coalition for Equality and Tasmanian Gay and Lesbian Rights Group, Committee Hansard, Canberra, 23 September 2008, p. 21.

[34]      Mr Jamie Gardiner, Liberty Victoria, Committee Hansard, Canberra, 22 September 2008, p. 28. Also, see Mr Graeme Innes AM, AHRC, Committee Hansard, Canberra, 22 September 2008, p. 8. Cf Mr Jim Wallace, Australian Christian Lobby, Committee Hansard, 23 September 2008, p. 8.

[35]      A succinct summary of most of those criticisms was provided by the Gay & Lesbian Rights Lobby (NSW): see Submission 18, pp 6 & 21-22.

[36]      Professor Patrick Parkinson, Committee Hansard, Canberra, 23 September 2008, p. 14.

[37]      Professor Patrick Parkinson, Committee Hansard, Canberra, 23 September 2008, p. 15 and Professor Patrick Parkinson, Submission 1, p. 7. Also, see Explanatory Memorandum, p. 8 and Ms Kate Temby, AHRC, Committee Hansard, Canberra, 22 September 2008, p .4.

[38]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 54.

[39]      Professor Patrick Parkinson, Submission 1, p. 1. Also, see Social Issues Executive of the Anglican Church Diocese of Sydney, Submission 23, pp 1-2; Australian Christian Lobby, Submission 10, pp 4-5 & 8-9; and Presbyterian Church of Australia, Church and Nation Committee, Submission 16, p. 1.

[40]      Mr Richard Egan, FamilyVoice Australia, Committee Hansard, Canberra, 22 September 2008, p. 23 and FamilyVoice Australia, Submission 4, p. 9.

[41]      Mr Ghassan Kassisieh, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, p. 33.

[42]      Professor Patrick Parkinson, Submission 1, p. 2. Example 3 in the Explanatory Memorandum was deconstructed as an example: see Explanatory Memorandum, p. 9. Also, see FamilyVoice Australia, Submission 4, p. 1.

[43]      Professor Patrick Parkinson, Committee Hansard, Canberra, 23 September 2008, p. 16.

[44]      Australian Coalition for Equality, Submission 19, p. 18.

[45]      Australian Human Rights Commission, Submission 12, pp 7-8.

[46]      The Hon. Robert McClelland MP, Attorney-General, 'Removal of same-sex discrimination continues', 18 September 2008.

[47]      Ms Kate Temby, AHRC, Committee Hansard, Canberra, 22 September 2008, p .6.

[48]      Professor Patrick Parkinson, Committee Hansard, Canberra, 23 September 2008, p. 14. Also, see Mr Wayne Morgan, Australian Coalition for Equality and Tasmanian Gay and Lesbian Rights Group, Committee Hansard, Canberra, 23 September 2008, pp 25-26.

[49]      Ms Emily Gray, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, p. 29.

[50]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 2 September 2008, pp 45 & 55-56.

[51]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, pp 50 & 56.

[52]      Attorney-General's Department, Additional Information, 8 October 2008, p. 3.

[53]      Same-Sex Entitlements (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008, Mr Alexander Charaneka, Law Council of Australia, Committee Hansard, Sydney, 6 August 2008, p. 33 and Law Council of Australia, Submission 21, p. 2.

[54]      Professor Patrick Parkinson, Committee Hansard, Canberra, 23 September 2008, p. 17.

[55]      For example, see Mr Brian Dunn, Submission m13 and Mr Giorgio Petti, Submission m18

[56]      National Welfare Rights Network, Submission 29, p. 4. Under the provisions of the Social Security Act 1991, a same-sex couple in a registered relationship will also be a ‘member of a couple’: see paragraph 4(2)(aa) of the Social Security Act 1991.

[57]      Inner City Legal Centre, Submission 5, p. 2. The National Welfare Rights Network also provided a number of useful case studies illustrating how the Bill will impact upon same-sex couples and their families: see Submission 29, pp 4 & 8-9.

[58]      National Welfare Rights Network, Submission 29, pp 3 & 5-6.

[59]      Explanatory Memorandum, p. 5.

[60]      Gay & Lesbian Rights Lobby (NSW), Submission 18, p. 44. Also, see Mr Corey Irlam, Australian Coalition, Committee Hansard, Canberra, 23 September 2008, p. 24.

[61]      National Welfare Rights Network, Submission 29, p. 10.

[62]      Positive Life NSW, Submission 28, p. 3. The possible impact upon current recipients of an Aged, Disability, or Carers Pension, or Health Care Concession Card was also noted.

[63]      Inner City Legal Centre, Submission 5, p. 2.

[64]      Comsuper Action Committee, Submission 15, p. 1. Also, see Dr Josephine Harrison, Submission 6;  Ms Cathy Brown, Submission m7; and National Welfare Rights Network, Submission 29, pp 3-4.

[65]      Dr Josephine Harrison, Committee Hansard, Canberra, 23 September 2008, p. 2.

[66]      National Welfare Rights Network, Submission 29, p. 7.

[67]      Northern Rivers Community Legal Centre, Submission 3, p. 3.

[68]      Gay & Lesbian Rights Lobby (NSW), Submission 18, p. 44.

[69]      National Welfare Rights Network, Submission 29, p. 6.

[70]      Australian Federation of AIDS Organisations, Submission 26, p. 2.

[71]      Ms Kate Beaumont, National Welfare Rights Network, Committee Hansard, 23 September 2008, p. 36

[72]      Mr Ghassan Kassisieh, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, p. 30.

[73]      Ms Emily Gray, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, p. 30.

[74]      Positive Life NSW, Submission 28, p. 4. Also, see Australian Federation of AIDS Organisations, Submission 26, p. 3.

[75]      ACON, Submission 34, p. 7. Also, see the Lesbian and Gay Solidarity (LGS) Melbourne, Submission 8, p. 2; and Dr Josephine Harrison, Submission 6a, p. 1.

[76]      Northern Rivers Community Legal Centre, Submission 3, p. 3. Also, see Inner City Legal Centre, Submission 5, p. 3.

[77]      Ms Emily Gray, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, pp 30-31. The committee notes that the phasing out of payments such as the Widow's Pension, Partner Allowance and Mature Age Allowance were provided with grandfathering clauses to minimise the impact on payment recipients.

[78]      National Welfare Rights Network, Submission 29, p. 6.

[79]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 58.

[80]      Inner City Legal Centre, Submission 5, p. 3. Also, see Northern Rivers Community Legal Centre, Submission 3, p. 3; ACON, Submission 33, p. 8; Submission f1; and Submission f1a

[81]      Lesbian and Gay Solidarity (LGS) Melbourne, Submission 8, p. 2.

[82]      Dr Josephine Harrison, Committee Hansard, Canberra, 23 September 2008, p. 3.

[83]      Ms Kate Beaumont, National Welfare Rights Network, Committee Hansard, Canberra, 23 September 2008, p. 36.

[84]      Ms Kate Temby & Mr Graeme Innes AM, AHRC, Committee Hansard, Canberra, 22 September 2008, p. 10.

[85]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 45.

[86]      Dr Josephine Harrison, Committee Hansard, Canberra, 23 September 2008, p. 2.

[87]      National Welfare Rights Network, Submission 29, p. 7.

[88]      Dr Josephine Harrison, Submission 6, p. 1 and Submission 6a, p. 1.

[89]      Ms Emily Gray, Gay and Lesbian Rights Lobby (NSW), Committee Hansard, Canberra, 23 September 2008, p. 34.

[90]      Australian Coalition for Equality, Submission 19, pp 6-10.

[91]      Gay & Lesbian Rights Lobby (NSW), Submission 18, p. 29.

[92]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, pp 41-42. Also, see Attorney-General's Department, Additional Information, 8 October 2008, p. 2.

[93]      Gay & Lesbian Rights Lobby (NSW), Submission 18, pp 29-30.

[94]      Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, pp 41-42.

[95]      NSW Young Lawyers, Submission 22, pp 4-6; Human Rights Law Resource Centre, Submission 14, p. 4; Coming Out Proud Program, Submission 2, p. 3; Student Representative Council, University of Sydney, Submission 24, p. 1; Lesbian and Gay Solidarity (LGS) Melbourne, Submission 8;  Australian Coalition for Equality, Submission 19, p. 5; Liberty Victoria, Submission 31, p. 1.

[96]      The Hon. Robert McClelland MP, Attorney-General, 'Rudd Government moves on same-sex discrimination', 30 April 2008.

 

Additional comments by Liberal senators

[1]        Mr Peter Arnaudo, Attorney-General's Department, Committee Hansard, Canberra, 23 September 2008, p. 56.

[2]        In Re Mark, [Re Mark: an application relating to parental responsibilities [2003] FamCA 822 (28 August 2003)] Brown J considered the relevance of a surrogacy contract entered into under the law of California but observed (at 94) “It is the Family Law Act which governs this case, not the provisions of the surrogate agreement.”

            In Re Evelyn, [[Re Evelyn [1998] FamCA 55 (15 May 1998)] the Full Court upheld a decision by Jordan J making a parenting order in favour of a birth mother and her husband despite the existence of a surrogacy arrangement.  The Full Court adopted the view that the existence or otherwise of the surrogacy arrangement had no effect on the outcome of the case. 

“Before his Honour, an argument was mounted on behalf of the Ss that the various State and Commonwealth provisions relating to surrogacy led to the inevitable conclusion that for various reasons, the law required a decision in favour of the Ss.  His Honour, correctly in our view, rejected this proposition as artificial and based his decision squarely upon the principle that ‘the paramount consideration remains the best interests of the child’."

[3]        The Hon. Dr Brendan Nelson MP, Leader of the Opposition, House Hansard, 4 June 2008, p. 4480.

[4]        Proposed section 22C of the Acts Interpretation Act 1901; proposed section 4AA of the Family Law Act 1975; proposed subsection 11(3) of the Evidence Act 1995; and various proposed definitions of 'couple relationship': for example, see proposed addition to subsection 4B(2) of the Parliamentary Contributory Superannuation Act 1948

 

Additional comments by Senator Hanson-Young

[1]        Gay and Lesbian Rights Lobby (NSW), Submission 18, p. 42.