CHAPTER 2
OVERVIEW OF THE BILL
2.1
This chapter provides a brief background to the Bill, and then outlines
its purpose and key provisions.
Background to the Bill
2.2
In May 2007, the Human Rights and Equal Opportunity Commission (HREOC)
released its report titled 'Same-Sex: Same Entitlements: National Inquiry into
Discrimination against People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits' (the HREOC Same-Sex: Same
Entitlements report).
2.3
The primary finding of the HREOC Same-Sex: Same Entitlements report
was that same-sex couples and their families cannot access the same financial
and work-related entitlements as opposite-sex couples and their families. HREOC
identified 58 Commonwealth Acts which it found to be discriminatory and consequently
in breach of Article 26 of the International Covenant on Civil and Political
Rights, and potentially also Articles 2 and 3 of the Convention on the Rights
of the Child.[1]
2.4
HREOC made two recommendations aimed at promoting non-discrimination,
equality under the law, and the best interests of the child:
- Recommendation 1: The federal government should amend the
discriminatory laws identified by the HREOC inquiry to ensure that same-sex and
opposite-sex couples enjoy the same financial and work-related entitlements;
and
- Recommendation 2: The federal government should amend the
discriminatory laws identified by the HREOC inquiry to ensure that the best
interests of children in same-sex and opposite-sex families are equally
protected in the area of financial and work-related entitlements.[2]
2.5
On 30 April 2008, the Hon. Robert McClelland MP, Attorney-General (the
Attorney-General), announced that legislation to remove same-sex discrimination
from a wide range of Commonwealth laws would be introduced in the Winter
Sittings of Parliament.
The changes will provide for equality of treatment under a wide
range of Commonwealth laws between same-sex and opposite-sex de facto couples.
Importantly the reforms will also ensure children are not disadvantaged because
of the structure of their family...[The changes] will make a practical difference
to the everyday lives of a group of our fellow Australians who have suffered
discrimination under Commonwealth laws for far too long.[3]
2.6
The first tranche of legislation, the Superannuation Bill, was
introduced in the Senate on 16 June 2008. At that time, it was referred to the
committee for inquiry and report by 30 September 2008, or after consideration
of any related bill(s) that may be introduced to give effect to the
recommendations of the HREOC Same-sex: Same Entitlements report,
whichever is the sooner. The Senate subsequently extended the reporting date
for the Superannuation Bill to 14 October 2008.[4]
Purpose and key provisions
Purpose of the Bill
2.7
The Bill represents the second tranche of reform for same-sex couples
and their families. It was introduced in the House of Representatives on 4 September 2008, and in the second reading speech, the Attorney-General described the objectives
of the Bill as follows:
This Bill removes discrimination against same-sex couples and
their children in many of the laws that were identified by the Commission and
the [whole-of-government] audit.
...
Removing discrimination is about making sure that same-sex
couples and their families are recognised for all practical purposes and have
the same entitlements as opposite-sex de facto couples.[5]
Structure of the Bill
2.8
The 179-page Bill comprises primarily 15 Schedules, each of which amends
legislation within specific portfolio areas. A list of the legislation to be
amended can be found in the Explanatory Memorandum.[6]
Key provisions
2.9
The Attorney-General informed the Parliament that:
The amendments in the Bill recognise a same-sex partner and
adopt a similar approach to that taken in the [Superannuation] Bill to
recognise a child in a same-sex family.[7]
2.10
Accordingly, the Bill proposes to insert and expand a number of key
definitions: 'de facto partner'; 'registered relationship'; 'de facto
relationship'; 'child'; and 'parent'. These amendments are described below.
'De facto partner'
2.11
Schedule 2 Item 1 of the Bill proposes to insert a new definition of 'de
facto partner' into the Acts Interpretation Act 1901. The new definition
would read,
22A References to de facto partners
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, a person is
the de facto partner of another person (whether of the same sex or a different
sex) if:
(a) the person is in a registered relationship with the other
person under section 22B; or
(b) the person is in a de facto relationship with the other
person under section 22C.[8]
2.12
The Attorney-General stated that:
This definition will become the standard definition for most
Commonwealth laws, and the laws that will be amended will, in most cases, pick
up that definition.
It will provide a more consistent and uniform approach to
defining who is a de facto partner across a range of Commonwealth laws.[9]
2.13
However, the Attorney-General acknowledged that the proposed new
definition will not be used in all Acts being amended by the Bill (such as the Social
Security Act 1991, the Migration Act 1958, and the Veterans’
Entitlements Act 1986).
Given the specific issues that are dealt with by these acts, a
slightly different approach to the definition of de facto partner or child is
adopted.
The factors are generally similar but they do not refer to the
new definition of de facto partner to be inserted in the Acts Interpretation
Act that I outlined a little earlier.
Nonetheless, in relation to those acts, the bill amends the
relevant provisions to ensure that same-sex couples and their families are
recognised.[10]
2.14
Schedule 2 Item 1 of the Bill proposes also to define 'registered
relationship' and 'de facto relationship'.
2.15
'Registered relationship' will mean,
22B Registered relationships
For the purposes of paragraph 22A(a), 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.[11]
2.16
The Attorney-General stated:
What this will mean is that couples who have registered their
relationships under a state or territory law will not have to demonstrate the
circumstances to satisfy the definition of de facto partner under most Commonwealth
laws.
...
This will provide a significant incentive for couples to
register their relationships under state or territory schemes.
...
It is also an incentive to States and Territories that do not
have such schemes to develop their own. The federal government’s position is
that, should they do so, they should be consistent with the general principles
that exist in the schemes in Victoria, Tasmania and the ACT.[12]
2.17
'De facto relationship' will mean,
22C De facto relationships
(1) For the purposes of paragraph 22A(b), 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 (see subsection (6)); and
- have a relationship as a couple living together on a genuine
domestic basis.[13]
2.18
The criteria for determining whether two persons have a 'relationship as
a couple' are listed in proposed subsection 22C(2) of the Acts
Interpretation Act 1901. These criteria include:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and
any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- the care and support of children;
- the reputation and public aspects of the relationship.[14]
2.19
No particular finding will be required for any one criterion, and allowance
will also be made for circumstances in which one partner is legally married to
someone else; is in a registered relationship; or the two persons are not
'living together on a genuine domestic basis' due to temporary absence, illness
or infirmity.[15]
'Child' and 'parent'
2.20
The Bill proposes to insert a new definition of 'child' into the amended
Acts. An example of the new definition reads,
child: without limiting who is a child of a person
for the purposes of this Act, someone is the child of a person if
he or she is the product of a relationship the person has or had as a couple
with another person (whether of the same sex or a different sex). For this
purpose, someone 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.[16]
2.21
The Explanatory Memorandum states that this amendment will expand the
classes of children that may be taken to be a child of a couple. However, it does
not replace the current definition of 'child' in any of the Acts, or provisions
of Acts, to be amended.[17]
Each Act or provisions of an Act to be amended might therefore contain more
than one definition of 'child'.
2.22
The new definition of 'child' employs the key phrase 'product of the
relationship'. During the inquiry into the provisions of the Superannuation
Bill, this phrase was criticised for its lack of clarity, particularly in
relation to children born through surrogacy arrangements or Artificial Reproduction
Technology (ART), and in relation to the absence of an explicit requirement for
consent to the conception.[18]
2.23
The Explanatory Memorandum asserts that consent to the procreation of a
child is not an express requirement in the definition of 'child' as 'the term
"product of the relationship" implies an element of joint endeavour.'[19]
This has consistently been the position of the Attorney-General's Department
(the Department).
2.24
The Explanatory Memorandum provides six examples of the circumstances in
which a child would be considered to be the 'product of the relationship'
(Examples 1 – 6), and two examples of the circumstances in which a child would
not be considered to be the 'product of the relationship' (Examples 7 – 9).[20]
2.25
The Bill proposes to insert as a related amendment to the new definition
of 'child' a new definition of 'parent'. An example of this amendment reads,
parent: without limiting who is a parent of a
person for the purposes of this Act, someone is the parent of a
person if the person is his or her child because of the definition of child
in this subsection.[21]
2.26
According to the Explanatory Memorandum, this amendment will ensure that
both members of a couple are recognised as the parents of a child where that
child is the 'product of the relationship'. Again, the new definition is in
addition to the current definition of 'parent' within the Acts or provisions of
the Acts to be amended.[22]
'Stepchild' and 'step-parent'
2.27
The Bill proposes to expand the current definition of 'stepchild' to
include the child of an opposite-sex or same-sex de facto partner by a former
relationship. An example of the new provision would read,
stepchild: without limiting who is a stepchild of
a person for the purposes of this Act, someone is the stepchild
of a person if he or she would be the person's stepchild except that the person
is not legally married to the person's de facto partner.[23]
2.28
A complementary amendment is proposed to be made to the current
definition of 'step-parent'. For example,
step-parent: without limiting who is a step-parent
of a person for the purposes of this Act, someone who is a de facto partner of
a parent of the person is the step-parent of the person if he or
she would be the person's step-parent except that he or she is not legally
married to the person's parent.[24]
2.29
The Attorney-General told Parliament, 'It seems incredible that for
almost 24 years it has been unlawful to discriminate against a person on the basis
that they are or are not married'.[25]
However, the objectives of the Bill do not include eliminating discrimination
on the basis of marital status.
Commencement
2.30
Clause 2 of the Bill provides ultimately for the commencement of the Same-Sex
Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act
2008.
2.31
For some Acts, transitional, savings and application provisions will apply
to ensure the smooth implementation of the amendments. Most amendments will
commence the day after the Bill receives Royal Assent. Other amendments have a
delayed commencement date either to await enactment of other legislation, or to
provide lead time to agencies and individuals affected by the Bill.
All of the amendments are expected to come into effect by the
middle of 2009.[26]
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