CHAPTER 5
CHILDREN AND LEGISLATIVE CONSISTENCY
5.1
Chapter 5 discusses
the issues specifically related to children and legislative consistency,
including:
- the status of children within the Bill;
- the legal and fiscal implications of the definitions of 'child'
and 'child of a couple relationship';
- same-sex de facto relationships;
- the General Law Reform Bill; and
- consistency in legislation.
Status of children within the Bill
5.2
In referring the Bill, the Senate requested that the committee inquiry into the legal
and fiscal implications of the definitions of ‘child’ and ‘child of a couple
relationship’, particularly as they relate to the rights, obligations and
liabilities of co-parents (i.e., the parent in a couple relationship that does
not have a biological connection to a child of that relationship).[1]
5.3
Some of these issues
are discussed in chapter 3 where it was especially noted that the Bill will enable the surviving child (or children) of a same-sex
relationship to receive death benefits (lump sum or reversionary pension) from
a non-biological parent.[2]
5.4
The committee notes
that, despite any other objections to the Bill, the majority of submissions supported
this objective.
Children should not
be penalised because of the relationship between the adults in their lives,
therefore financial entitlements to a child cared for by a same-sex couple
should mirror the entitlements to a child of a heterosexual couple.[3]
5.5
The next section discusses
Terms of Reference (v) and (vi) in relation to specific issues not directly
related to the objectives of the Bill but which arose in submissions and
evidence.
Legal and fiscal implications of the definitions of 'child' and 'child of a
couple relationship'
5.6
There were two
concerns raised during the inquiry: firstly, the legal status of children born
through either surrogacy arrangements or Artificial Reproduction Technology (ART); and second, children who are not a 'child of the couple
relationship'.
Children born through surrogacy
arrangements or ART
5.7
At common law and under
existing parenting presumptions, a child's parents are deemed to be his or her birth
mother and biological father.
5.8
Professor Jenni Millbank submitted that, as a matter of principle
and practicality, it makes sense to focus the 'axis of recognition' around the
birth mother, but that this approach does not work in all cases.
Parentage
presumptions work well for most families and reflect the intended and social or
caregiving parent-child relationships. However, they do not fit the exceptional
circumstance in which the birth mother is not the intended parent and will not
be a residential caregiver of the child through a surrogacy arrangement.[4]
5.9
A further
complication is that there is no consistent state or territory approach to the
legal recognition of a child conceived with the assistance of ART. The Attorney-General's Department noted that this problem
is receiving attention.
The Standing
Committee of Attorneys' General has agreed to ‘develop a unified framework for
the legal recognition of parentage achieved by surrogacy arrangements’ and that
the unified framework would contain the following feature: court orders will be
available recognising the intended parents as the legal parents where the
surrogacy arrangement meets legal requirements and is in the best interests of the
child.[5]
5.10
In the meantime, only
in Western Australia, the Northern Territory,
New South Wales and the ACT are a birth mother's female
partner currently recognised as the parent of a child born through ART.[6]
5.11
Some submissions and
evidence questioned whether the Bill achieves its purpose with the proposed definition
of 'child' in relation to children born through surrogacy arrangements and ART. This is due partly to the lack of clarity regarding the
phrase 'product of the relationship', which is discussed in chapter 3, and
partly to the confusion regarding a child's legal parentage.
5.12
Both HREOC and Professor Millbank submitted that the confusion must be
eliminated, and they supported the ACT model which allows for the transfer of
parental status after birth through court order, a system which operates upon
the dual principles of informed consent and the child’s best
interests.[7]
5.13
Professor Millbank cautioned against addressing the current
problem in an ad hoc fashion which might lead to increased inconsistency and
confusion in 'federal-state parental status'. Instead, she recommended that
state and territory laws attend to severing the legal status of the genetic
father and birth mother, and implementing a formal transfer process. Then:
Federal law can
reflect this transfer process, again through a definition in the Acts
Interpretation Act 1901 (Cth), or through amending s60H of the Family Law Act
1975 (Cth). However the main drive for recognition must be at state level
...
While transfer of
parental status processes are being introduced at state level federal law can
accommodate the needs of such families through for example, granting rights to
adults who have consent orders of parental responsibility through the Family
Law Act 1975 (Cth). Such orders are commonly sought by commissioning parents.[8]
5.14
Professor Patrick Parkinson called for a review of this area of law:
What is really
needed is a thorough review of family policy in Australia,
looking at how family relationships are defined and for what purposes across Australian
law in order to have a consistent approach.[9]
Children outside the 'couple
relationship'
5.15
As previously
indicated, this section discusses the concern that children from a previous
relationship are not encompassed by the proposed definition of 'child'.[10] A relatively small number of submissions
addressed this issue.
5.16
The Association of
Superannuation Funds of Australia, for example, submitted that there would be
few such cases in any given year and were confident that trustees would be able
to determine whether a child was a 'child of the couple relationship' or not.
A trustee should
generally be able to rely on a statutory declaration from the biological parent
or birth parent of the child as to whether the child was a product of the
couple relationship. If another party seeking to claim all or part of the death
benefit disputed that the child was a product of the relevant couple
relationship then the trustee could make further enquiries as to the
circumstances in which the child was born.[11]
5.17
Furthermore, if there
were a question of entitlement, "most superannuation funds would drop back
to the definition of financial dependant because that is far easier to
apply."[12]
5.18
If the Bill is passed, there will be four categories of dependants:
- spouses (including same-sex and opposite-sex de facto couples)
- children (including adopted, ex-nuptial and step-children, and
children who are the product of a person’s relationship with another person
where the child is the biological child of at least one party to the relationship
or born to the woman in the relationship);
- financial dependants (as held in Faull v Superannuation
Complaints Tribunal [1999] NSWSC 1137); and
- persons in an interdependency relationship (as defined in section
10A of the SIS Act and section 20A of the RSA Act).[13]
5.19
Accordingly, without
further clarification, it might not be so easy to properly categorise individuals
for death benefit distribution purposes. As highlighted by the Law Council of
Australia, proper categorisation is relevant to determining how a
superannuation death benefit distribution is to be taxed.[14]
5.20
Associate Professor Miranda Stewart concurred that the concept of dependant
and the death benefit category is a highly contested area in superannuation
law, and one in which trustees would prefer more rather than less certainty.
As an example, if
you look at the kinds of decisions that the Superannuation Complaints Tribunal
has to deal with, around 30 per cent of those decisions relate to death
benefits and who is an appropriate dependant. So you can see already this area
is a bit tricky for the trustees. The decisions that they make might well be
contested or controversial.[15]
5.21
The committee notes
that the Superannuation Industry (Supervision) Act 1993 specifically
includes stepchildren. However, the Association of Superannuation Funds of
Australia and HREOC rejected that this necessarily results in stepchildren not being
financially disadvantaged compare to children of the couple relationship.
As the term [step
child] is not defined in the legislation itself, it will likely be interpreted
to exclude a child under the care of his or her biological parent’s same-sex
partner. This is because courts have interpreted the term to mean that the
child’s biological parent must marry the intended step-parent. That
interpretation discriminates against same-sex couples and opposite-sex de facto
couples.[16]
Same-sex de facto relationships
5.22
During the inquiry, discrimination
between opposite-sex and same-sex de facto couples clearly attracted far more
attention than marital discrimination. One of the most common issues for
submitters and witnesses was the question of why the Bill did not simply place same-sex
couples within the de facto relationships category instead of redefining all
marital and de facto relationships, including same-sex relationships as 'couple
relationships'.
5.23
Ms Emily Gray and Mr Ghassan Kassisieh from the NSW Gay and Lesbian Rights
Lobby argued that opposite-sex and same-sex couples are objectively identical,
as did many other witnesses.
All the same factors
of a de facto relationship apply to same-sex couples as they do to heterosexual
de facto couples. So they are more properly grouped with de facto heterosexual
couples.[17]
5.24
When asked by the
committee what difference there might be between opposite-sex and same-sex de
facto couples, Dr John Challis from the Superannuated Commonwealth
Officers' Association responded:
In actual day-to-day
living of the relationship there is really no difference. Our friends, I am
sure, simply look upon us as a de facto couple like any other de facto couple.[18]
5.25
One of the legal
experts giving evidence, Professor Parkinson, could not imagine any issue of social
policy, including superannuation, where you would need to distinguish between
opposite-sex and same-sex de facto relationships.[19]
5.26
A number of witnesses
also commented favourably on the history of de facto legislation and its
judicial consideration in state and territory law. Mr
Kassisieh from the NSW Gay and Lesbian Rights
Lobby, for example, compared the Commonwealth legislation with that of the
states and territories, and observed that there is inconsistency in the
approach to defining 'de facto' relationships.
It is slightly
different at the federal level because there are very many de facto definitions
across the laws as opposed to states and territories which tend to have one de
facto definition which is cross-referenced in various acts. Either it is
centrally located or, as in New South Wales, it is in one act and
cross-referenced in other definitions to that one definition...There is
considerable common law now that has developed around that definition.[20]
5.27
The committee
acknowledges, however, that there were also submissions and evidence presenting
the opposite view: same-sex couples should be treated distinctly from other
'marital type' relationships, including opposite-sex de facto relationships. This
view was essentially based on the need to preserve legal and social
distinctions.
5.28
Ms Angela Conway from the Australian Family Association
argued that the Bill confounds the correct distinctions
between marital and other relationships.
There is
longstanding legal jurisprudence around marriage, recognising marriage as a
special relationship in society, recognising that it needs special
accommodation and special provisions in the law.[21]
5.29
Mr Richard Egan from FamilyVoice Australia expressed concern over the potential erosion of marriage as
'the union of a man and a woman to the exclusion of all others, voluntarily
entered into for life.'
If this bill is
followed, as announced by the Rudd government, by changes to all 100 federal
laws that mention marriage except the Marriage Act and if in every single one
of those laws the benefits and treatment of married couples is now extended to
same-sex couples on the identical terms then it would seem to me a logical
argument if I were coming from the same-sex lobby to say, ‘Now you’ve given us
all the benefits of married couples, why would you not allow us to have
marriage itself?’[22]
5.30
As discussed in
chapter 3, the Bill does not precisely follow HREOC's
recommendations for eliminating discrimination against same-sex couples, one of
which was the creation of gender neutral definitions of 'de facto relationship'
and 'de facto partner' to be introduced into Commonwealth laws conferring financial
and work related entitlements.[23]
5.31
The committee
observes that the Family Law Amendment (De Facto Financial Matters and Other
Measures) Bill 2008 proposed a definition of 'de facto relationship' in
accordance with the model definition stated in the HREOC Same-Sex: Same
Entitlements report, as does the General Law Reform Bill.
The General Law Reform Bill
The 'de facto' terminology
5.32
As indicated in
chapter 2, one of the Acts to be amended by the General Law Reform Bill will be
the Acts Interpretation Act 1901. Schedule 2 Part 1 Item 1 of the General Law
Reform Bill proposes to create a key definition of 'de facto partner' which
refers to associated definitions of 'registered relationship' and 'de facto
relationship'.
5.33
The key definition of
'de facto partner' is gender neutral, and will apply,
for the purposes of
a provision of an Act that is a provision in which de facto partner has the
meaning given by this Act...[24]
5.34
The Explanatory
Memorandum for the General Law Reform Bill acknowledges,
This approach is a
departure from the usual approach in the Acts Interpretation Act which is for
words to be defined to have a meaning ‘unless the contrary intention appears’.
This means that the application of the definition of ‘de facto partner’ in the
Acts Interpretation Act will have no effect unless it is ‘triggered’ by express
provisions in the substantive Act. This approach avoids any possibility of
unintended consequences in other legislation. [25]
5.35
The committee notes
that this approach was consistent with some of the evidence provided during the
inquiry. However, while the General Law Reform Bill provides the key definition
of 'de facto partner', the Bill does not incorporate this definition and
continues to rely upon the definition of 'couple relationship'.
5.36
The new definition of
'registered relationship' proposed by the General Law Reform Bill is consistent
with that of the Bill. However, the new definition recognises
neither interdependency relationships nor relationships registered
internationally. Inconsistency between state and territory laws is not
addressed.
5.37
As stated in
preceding paragraphs, the new definition of 'de facto relationship' is consistent
with the model definition proposed in the HREOC Same-Sex: Same Entitlements
report. The proposed definition reads:
...a person is in a de
facto relationship with another person if the persons:
(a) are not legally
married to each other; and
(b) are not related
by family (see subsection (6)); and
(c) have a
relationship as a couple living together on a genuine domestic basis.[26]
5.38
The NSW Law Society
submitted that the definition of 'de facto relationship' in the Property
(Relationships) Act 1984 (NSW) was worthy of adoption.[27] The committee notes that this definition
is essentially the same as that proposed by the HREOC Same-Sex: Same
Entitlements report, the Family Law Amendment (De Facto Financial Matters
and Other Measures) Bill 2008, and the General Law Reform Bill.
The definition of 'child'
5.39
The General Law
Reform Bill proposes to also create a key definition of 'child'.
It provides that a
child will be considered to be a person’s child where the child is the product
of a relationship the person has or had as a couple with another person.[28]
5.40
The committee notes
that this definition hearkens back to the controversial couple terminology of
the Bill, rather than the de facto terminology of
the General Law Reform Bill, an observation reinforced
by the Explanatory Memorandum which states:
The key definition
of ‘child’ will also extend recognition to children of opposite-sex relationships
who are not already covered by the existing definitions in the Acts or
provisions of Acts to be amended. For example, a child who is biologically
related to either member of an opposite-sex couple who is conceived through a
private surrogacy arrangement, either by the use of Artificial Insemination or
through sexual intercourse, would be recognised.[29]
5.41
Similar arguments
were made by the Attorney-General's Department in relation to the definition of
'child' within the Bill. And the problems identified in chapter
3 of this report, namely, issues concerning the phrase 'product of the
relationship' have been duplicated in the General Law Reform Bill.[30] The committee is yet to be convinced
that these problems are irrelevant to the purposes of the General Law Reform
Bill let alone Commonwealth laws in general.
5.42
One notable
difference is the expansion of the definition of 'step child' (and its
associated definition of 'step parent') to include a child of an opposite-sex
or same-sex de facto partner from a previous relationship.
This is achieved by
providing 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 and the parent are not legally married. It is not necessary to establish
that the person and the parent are capable of being legally married.[31]
5.43
Prima facie this amendment will enable a child who
does not satisfy the definition of 'child of the couple relationship' to be
considered a 'step child' in a couple relationship (whether opposite-sex or
same-sex), thereby allowing for equal treatment of the children in opposite-sex
or same-sex de facto families.
5.44
The committee
observes that the key definitions will only apply if they are incorporated
within a particular Act. In relation to the Bill,
none of its affected Acts cross reference to the Acts Interpretation Act and
only one its Acts is concurrently proposed to be amended by the General Law
Reform Bill.
5.45
Schedule 7 Part 2 of
the General Law Reform Bill proposes to make amendments to the Superannuation
Act 1976. But the provisions relate to the circumstances in which a
member is required or permitted to make contributions, and has no direct
relevance to the objectives of the Bill.
Consistency in legislation
5.46
Professor Parkinson told the committee that the Bill has serious drafting problems due to the minimalist
approach adopted by the parliamentary drafters, resulting in a 'legal
quagmire'.
They have sought to
make amendments to the existing legislation using as few different words as
possible to the Acts they are amending...The drafters may have saved a few words
for the Statute Book, but these minimalist amendments will cause a legal
quagmire, and have also raised serious concerns of a moral and social nature
which could easily be resolved with less minimalist drafting to reflect the
different context of the relationships now sought to be covered by the Bill.[32]
5.47
Throughout the
inquiry, the committee noted inconsistencies between Commonwealth, state and
territory laws, and also within various Commonwealth laws. The latter
inconsistencies related primarily to definitions within statutes (such as the
definitions of 'de facto partner' in the Evidence Amendment Bill 2008 and the
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008),
and also to the terminology used in Commonwealth statutes.
5.48
In answers to
questions on notice, the Attorney-General's Department advised, for example,
that:
A range of other
Commonwealth Acts contain definitions of terms other than 'de facto
relationships' covering relationships including de facto relationships.
Examples include:
• s.995–1 of the
Income Tax Assessment Act 1997 (definition of 'spouse')
• s.4B of the
Parliamentary Contributory Superannuation Act 1948 (‘marital relationship’)
• s.4(2) to (6A) of
the Social Security Act 1991 ('member of a couple'), and
• s.44-11 of the
Aged Care Act 1997 (definition of 'member of a couple', differently defined).[33]
5.49
Concerns were
expressed about such inconsistencies, not only in relation to the bills
currently being examined by the committee but also throughout Commonwealth
legislation.
5.50
Some witnesses
suggested that a more consistent approach should be taken by either locating
key definitions within the Acts Interpretation Act 1901 or another cross
referenced Act (such as the SIS Act).
5.51
However, Associate Professor Stewart supported the idea of individually amending Commonwealth
legislation.
Different federal
laws have different definitions of ‘couple’ for different purposes and it is
appropriate, then, to amend those specific definitions to remove the
discrimination rather than necessarily change the whole structure of the
federal law with one uniform definition.[34]
5.52
In response to
questioning on this issue, a representative of the Attorney's General
Department concurred that, 'there are very clear policy reasons why in the
Evidence Act and the Family Law Act there is a need to take different factors
into account.'[35]
5.53
The committee accepts
that this might be the case in some but not all instances, a view supported by the
General Law Reform Bill which allows for the location of specific definitions
in the Acts Interpretation Act 1901. The committee suggests that a
consistent, easy to use, approach toward defining terms used in Commonwealth
legislation, as far as possible, would be beneficial.
Committee view
5.54
This Bill gives effect to the recommendations of the HREOC Same-Sex:
Same Entitlements Report, and honours Australia's obligations under several
international treaties, including the International Covenant on Civil and
Political Rights, and the Convention on the Rights of the Child. The objectives
of the Bill were supported by a considerable number
of persons contributing to this inquiry. For these reasons, the committee
supports the removal of discrimination against same-sex couples and the
children of same-sex relationships in Commonwealth superannuation laws.
5.55
The committee
recognises that the operative provisions of the Bill
were scheduled to commence shortly after the introduction of the Bill into Parliament, and this inquiry has now delayed
commencement by some months. In these circumstances, the committee considers it
appropriate that Schedule 4 of the Bill be backdated to commence as of 1 July 2008.
5.56
In view of the above
comments, the committee supports the Bill and believes it should be passed as a
matter of priority.
5.57
Notwithstanding its
support, the committee is mindful of the concerns and suggestions for
improvements in relation to the Bill. The main concerns related to the
proposed new definitions of 'partner', 'couple relationship', and 'child'.
5.58
The committee recognises
that the new definitions of 'partner' and 'couple relationship' enable same-sex
couples to be included in the definition of a relationship for the purposes of
the receipt of death and related tax benefits. The committee is not persuaded
that this in any way undermines or devalues the status of marriage in law or
society. Marriage is afforded a unique and privileged position which is neither
affected by the objectives of the Bill, nor a proper subject of debate for this
inquiry.
5.59
However, the
committee notes that there is a group within the community who see the
elimination of the term 'marital relationship' in this Bill as eroding the institution of marriage.
5.60
There was also significant
evidence presented to convince the committee that same-sex couples
are most appropriately classified as being in a de facto relationship.
5.61
For these reasons,
the committee considers that it would have been more appropriate to employ the term
'marital or de facto relationship' rather than the new definition 'couple
relationship'. The committee is not persuaded that use of the former term would
defeat the Bill's objectives. Any risk associated with
such an approach could have been managed, as has been the case with the General
Law Reform Bill, and other Commonwealth, state and territory legislation.
5.62
In addition, the
committee is concerned by the approach taken in the Bill to the definition of 'child'. The committee acknowledges
the intent of the Bill to expand the definition to include as
eligible beneficiaries the children of same-sex relationships. That this is
easier said than done was evident throughout the inquiry. Ultimately, the
committee is not persuaded that the objective has been achieved in relation to
children born through surrogacy arrangements or ART.
Hence, it is not clear that the discrimination will be eliminated by the
enactment of the Bill. The committee is concerned also that
discrimination between children intended to be covered by the Bill and children from previous relationships has not been
adequately addressed. More significantly, the committee questions the need for
the new definition of 'child' which imports contradictory Commonwealth, state
and territory parenting presumptions.
5.63
Until all these
issues are resolved, including a review of the parental-child relationship, the
committee prefers that the proposed definition be removed from the Bill
altogether, and a child's entitlement to death benefits be clearly linked to the
surviving same-sex partner of the relationship.
5.64
Specifically in
relation to reform of state and territory surrogacy law reform, the committee encourages
the development and implementation of a consistent approach to the legal recognition
of children born through surrogacy arrangements or ART and which emphasises the child's best interests as a
paramount consideration. The committee agrees that Commonwealth law should
reflect the transfer of parental status, and in the meantime, facilitate the
recognition of families through court orders granted under the Family Law
Act 1975 or amendment of section 60H of the Family Law Act 1975 to
express gender neutral language. This was also the committee's recommendation
in its report on the Family Law Amendment (De Facto Financial Matters and Other
Measures) Bill 2008.
5.65
In relation to the
issues of interdependency, categorisation of same-sex couples as dependants
under the interdependency provisions of the SIS Act is not appropriate and
discriminates between opposite-sex and same-sex de facto couples. In principle,
the committee agrees that discrimination against other kinds of interdependants
cannot be justified. However, the committee is not persuaded that same-sex de
facto relationships can or should be categorised as interdependency
relationships. Accordingly, whether there is discrimination against those
relationships and how any such discrimination should be addressed are issues
which warrant their own inquiry. This finding by the committee militates
against the inclusion of interdependants within the couple relationship
category proposed by the Bill.
5.66
Finally, the
committee recognises the importance of consistency and uniformity across
federal legislation to the extent that it is achievable. The committee notes,
for example, suggestions that consistent definitions be inserted into the Acts
Interpretation Act 1901 or other cross-referable legislation. The committee
further notes that the General Law Reform Bill proposes to create a common
definition of 'de facto partner', and related definitions, and suggests that a
common definition for 'child' would be appropriate.
Recommendation 1
5.67
The committee
recommends that the definition of 'couple relationship' in the Bill be amended to read 'marital or de facto relationship',
including all related definitions.
Recommendation 2
5.68
The committee
recommends that the definition of 'child' in the Bill be amended to align it
with the amended definition of 'child of a de facto relationship' proposed for
the Family Law Act 1975 in the amendments circulated by the Government
to the Family Law Amendment (De Facto Financial Matters and Other Measures)
Bill 2008 in response to a bipartisan recommendation of this committee on that
bill.
Recommendation 3
5.69
Subject to the
preceding recommendations, the committee recommends that the Senate pass the Bill.
Senator Patricia Crossin
Chair
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