Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Same-sex relationships (Equal Treatment in Commonwealth
laws - GENERAL LAW REFORM) BILL 2008
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by the authority of the Attorney-General,
the Honourable Robert McClelland MP)
Same-sex relationships (Equal Treatment in Commonwealth
laws - GENERAL LAW REFORM) BILL 2008
GENERAL OUTLINE
The purpose of the Same-Sex Relationships (Equal Treatment in Commonwealth
Laws - General Law Reform) Bill 2008 (the General Law Reform Bill) is to
eliminate discrimination in a wide range of Commonwealth laws.
The Government amendments proposed to the General Law Reform Bill will:
. replace the concept of child as a 'product of a relationship' with
'child of a person within the meaning of the Family Law Act 1975'
. remove amendments relating to concepts of 'legal responsibility' and
'custody, care and control' as a consequence of amendments to the
Family Law Amendment (De Facto Financial Matters and Other Measures)
Bill 2008 (Family Law Amendment Bill)
. remove the amendment inserting a definition of 'de facto partner' into
the Acts Interpretation Act 1901 as a consequence of parliamentary
amendments to the Same-Sex Relationships (Equal Treatment in
Commonwealth Laws - Superannuation) Bill 2008 (the Superannuation
Bill) which will insert this definition into the Acts Interpretation
Act through that Bill
. amend the definition of 'step-parent' in subsection 4(1) of the Family
Law Act to include a person who is, or has been, a de facto partner of
a parent of the child
. replace the term 'spouse' in the Civil Aviation (Carrier's Liability)
Act 1959 with the phrase 'spouse or de facto partner'
. amend provisions in the Child Support (Assessment) Act 1989 that
relate to the concept of 'parent' to maintain consistency between that
Act and the Family Law Act (as amended by the Family Law Amendment
Bill)
. amend the definitions of 'de facto relationship' and 'member of a
couple' in the Child Support (Assessment) Act to recognise both same
and opposite-sex de facto relationships and registered relationships
within the meaning of section 22B of the Acts Interpretation Act (as
proposed to be amended by Government amendments to the Superannuation
Bill), and
. insert a tracing rule in the Child Support (Assessment) Act and the
Child Support (Registration and Collection) Act 1988.
Acts affected by the proposed amendments to the General Law Reform Bill
are:
. A New Tax System (Family Assistance) Act 1999
. Aboriginal Land Grant (Jervis Bay Territory) Act 1986
. Age Discrimination Act 2004
. Aged Care Act 1997
. Airports Act 1996
. Australian Citizenship Act 2007
. Australian Federal Police Act 1979
. Australian Postal Corporation Act 1989
. Bankruptcy Act 1966
. Broadcasting Services Act 1992
. Child Support (Assessment) Act 1989
. Child Support (Registration and Collection) Act 1988
. Civil Aviation (Carriers' Liability) Act 1959
. Commonwealth Electoral Act 1918
. Corporations Act 2001
. Corporations (Aboriginal and Torres Strait Islander) Act 2006
. Crimes Act 1914
. Crimes (Superannuation Benefits) Act 1989
. Customs Act 1901
. Defence Force (Home Loans Assistance) Act 1990
. Defence (Parliamentary Candidates) Act 1969
. Defence Service Homes Act 1918
. Education Services for Overseas Students Act 2000
. Export Market Development Grants Act 1997
. Financial Sector (Shareholdings) Act 1998
. Foreign Acquisitions and Takeovers Act 1975
. Health Insurance Act 1973
. Higher Education Support Act 2003
. Immigration (Guardianship of Children) Act 1946
. Income Tax Assessment Act 1997
. Insurance Acquisitions and Takeovers Act 1991
. Life Insurance Act 1995
. Medibank Private Sale Act 2006
. Migration Act 1958
. Military Rehabilitation and Compensation Act 2004
. National Health Act 1953
. Navigation Act 1912
. Parliamentary Entitlements Act 1990
. Passenger Movement Charge Collection Act 1978
. Pooled Development Funds Act 1992
. Privacy Act 1988
. Proceeds of Crime Act 2002
. Royal Australian Air Force Veterans' Residences Act 1953
. Safety, Rehabilitation and Compensation Act 1988
. Seafarers Rehabilitation and Compensation Act 1992
. Service and Execution of Process Act 1992
. Sex Discrimination Act 1984
. Social Security Act 1991
. Superannuation Act 1976
. Student Assistance Act 1973
. Telstra Corporation Act 1991
. Trade Representatives Act 1933
. Veterans' Entitlements Act 1986
. Witness Protection Act 1994
Financial Impact Statement
There is estimated to be an ongoing financial impact for these measures.
Regulation Impact Statement
A regulation impact statement is not required. The Office of Best Practice
Regulation has advised that no further analysis was required as the General
Law Reform Bill will have little to no regulatory impact.
Key concepts and definitions
Child
In order to recognise children of same-sex couples, the General Law Reform
Bill expands the classes of children that may be taken to be the child of a
couple. The General Law Reform Bill provides that for the purposes of the
Acts or provisions of Acts amended a child would be considered to be a
person's child where that child was the 'product of the relationship' the
person has or had as a couple with another person. This was intended to
ensure that children of same-sex couples were recognised across the range
of Commonwealth laws amended. A number of submissions to the Senate
Standing Committee on Legal and Constitutional Affairs' inquiry into the
General Law Reform Bill raised concerns about this definition.
Since the introduction of the General Law Reform Bill, Government
amendments to the Family Law Amendment Bill, which amends the Family Law
Act, have been passed by the Senate. The amendments to the Family Law
Amendment Bill are intended to implement the bipartisan recommendation made
by the Senate Standing Committee on Legal and Constitutional Affairs that
the definition of 'child of the de facto relationship' and the parenting
presumptions in section 60H of the Family Law Act be amended to allow
children of same-sex relationships to be recognised as a child of the
relationship for the purposes of the entire Family Law Act. The classes of
children falling within the amended provisions of the Family Law Act are
substantially equivalent to the classes of children that the Government
intended to cover with the 'product of a relationship' definition in the
General Law Reform Bill.
The definition of child in these amendments to the General Law Reform Bill
therefore relies on the expanded meaning of child in the Family Law Act
which will result from the amendments made by the Family Law Amendment Bill
to Part VII of that Act. The meaning of 'child' in the Family Law Act will
include children:
- born to a woman as the result of an artificial conception procedure
while that woman was married to, or was a de facto partner of,
another person (whether of the same or opposite-sex), and
- who are children of a person because of an order of a State or
Territory court made under a State or Territory law prescribed for
the purposes of section 60HB of the Family Law Act, giving effect to
a surrogacy agreement.
This will ensure that the children of same-sex couples are recognised
consistently across Commonwealth laws and responds to concerns raised in
relation to the 'product of the relationship' definition of child contained
in the General Law Reform Bill. This approach addresses the concerns of
the Committee in relation to the definition of 'child' in the General Law
Reform Bill. It is also consistent with the approach in proposed
amendments to the Superannuation Bill.
In order to incorporate the Family Law Act concept of 'child', these
amendments replace the 'product of the relationship' definition wherever it
occurs with a reference to a child 'within the meaning of the Family Law
Act 1975'. The Government intends that this phrase should be interpreted
to refer to all children who come within the meaning of 'child' in the
Family Law Act, notwithstanding the fact that certain provisions of the
Family Law Act do not apply in all States. In particular these definitions
will extend to children in Western Australia despite the fact that
subsection 69ZE(2) of the Family Law Act provides that Part VII of that Act
does not apply in that State.
Legal Responsibility
The General Law Reform Bill amends a number of provisions relating to
'legal responsibility', 'care, custody and control' and related concepts as
they relate to children. These amendments were intended to ensure that
same-sex parents could come within provisions referring to these concepts
where children within the 'product of a relationship' definition are in
their care, and where there is no court order in place which is
inconsistent with the person having legal responsibility.
The proposed amendments to the Family Law Act to recognise same-sex parents
will have the result that same-sex parents will automatically be considered
to have 'parental responsibility'. This is because section 61C of the
Family Law Act provides that each of a child's parents has parental
responsibility. Parental responsibility is defined in section 61B to
include all the duties, powers, responsibilities and authority which, by
law, parents have in relation to children. The proposed amendments to the
Family Law Act will therefore provide same-sex parents with a substantial
degree of legal responsibility over their children.
As a result of these amendments to the Family Law Act, it is no longer
necessary to include in the General Law Reform Bill any amendments deeming
same-sex parents to have legal responsibility or custody, care and control
for their children. Therefore, these amendments will remove any such
amendments from the General Law Reform Bill.
De facto partner
The General Law Reform Bill inserts a definition of 'de facto partner' in
the Acts Interpretation Act. The definition encompasses members of both
same-sex and opposite-sex de facto relationships. This amendment is now
being moved through parliamentary amendments to the Superannuation Bill to
ensure that the Acts Interpretation Act definition of 'de facto partner' is
in place when the Superannuation Bill commences. These amendments
therefore remove the amendment to the Acts Interpretation Act from the
General Law Reform Bill.
Tracing rule
In order to ensure that family relationships referred to in the Acts being
amended include relationships that are traced through the child-parent
relationship, the General Law Reform Bill inserts a tracing rule wherever
terms such as 'relative', 'brother', 'aunt' and 'grandparents' are used in
the Acts. Examples 1 and 2 below outline circumstances where the tracing
rule can be used to determine a relationship.
Example 1
J is in a de facto relationship with S. During the relationship J and S
decide that S will undergo an artificial conception procedure using
donated gametes. The procedure takes place and S gives birth to H.
Later, J and S decide to have another child - S will again undergo an
artificial conception procedure using donated gametes, but from a
different source. The procedure takes place and S gives birth to T.
Both procedures comply with the requirements of section 60H of the Family
Law Act, and J and S are therefore both the parents of each of the
children. Whilst T is the child of J and S, he is not the biological
sibling of H.
The use of the tracing rule in this instance will allow T to be considered
to be H's brother because the relationship is traced through the child-
parent relationship that each child has with J and S. This will continue
to be the case even if the relationship between J and S were to break down
at a later time. Without the tracing rule, T will only be considered to be
H's half brother.
Example 2
J is in a de facto relationship with S. S has a brother T. During the
relationship, J and S decide that J will undergo an artificial conception
procedure using donated gametes. The procedure, which complies with the
requirements of section 60H of the Family Law Act, takes place and J
gives birth to H.
T will be considered to be H's uncle in this instance because the
relationship is traced through the child-parent relationship which arises
because of section 60H of the Family Law Act. This will continue to be the
case even if the relationship between J and S were to break down at a later
time. Without the tracing rule, T will have no familial link to H and
would not be considered to be T's uncle.
NOTES ON AMENDMENTS
Amendment 1
This amendment removes Table Item 3 from Clause 2 of the General Law Reform
Bill. Table Item 3 relates to the commencement date of Schedule 2, Part 1
- Amendment of the Acts Interpretation Act and is no longer required as a
consequence of the omission of Part 1 by Amendment 7.
Amendments 2 - 6
These amendments remove Table Items 17, 18, 19, 20 and 21 from Clause 2 of
the General Law Reform Bill. These table items relate to the commencement
of certain items in Schedule 7 (Finance and Deregulation) of the General
Law Reform Bill and are no longer required as a consequence of the omission
of those items by Amendments 62 and 63.
Amendment 7
This amendment omits Schedule 2, Part 1 - Amendment of the Acts
Interpretation Act. This amendment is now being moved as part of proposed
amendments to the Superannuation Bill to ensure that the Acts
Interpretation Act definition of 'de facto partner' is in place for when
the Superannuation Bill commences.
Amendments 8 - 11, 13, 14, 16 - 19, 21 - 23, 25, 27, 28, 30 - 36, 38, 40,
42 - 48, 50, 52 - 55, 59, 60, 64 - 66, 68, 69, 71, 73 - 75, 78, 79, 81, 86,
87, 90 - 100, 102 - 106, 108 - 111
These amendments remove references to the 'product of the relationship'
definition of child from certain items and instead refer to a child within
the meaning of the Family Law Act. This change in approach to the
definition of 'child' is described in the Key Concepts and Definitions
section of this Supplementary Explanatory Memorandum.
Amendments 20, 29, 70, 72, 85, 101, 107
These amendments relate to the definition of 'parent'. They remove
references to whether the child is a 'product of the relationship' that a
person has or had as a couple, and instead refer to whether they are the
person's child within the meaning of the Family Law Act. This change in
approach to the definition of 'child' is described in the Key Concepts and
Definitions section of this Supplementary Explanatory Memorandum.
Amendments 12, 37, 41, 49, 51, 56, 57, 67, 76, 77, 80
These amendments remove provisions relating to legal responsibility or
care, custody and control for children. This change in approach is
described under 'legal responsibility' in the Key Concepts and Definitions
section of this Supplementary Explanatory Memorandum.
Amendment 15
This amendment inserts new Items 52A, 52B, and 52C into Schedule 2
(Attorney-General) of the General Law Reform Bill.
Item 52A amends the definition of 'step-parent' in subsection 4(1) of the
Family Law Act. The current definition of 'step-parent' is someone who is
or has been married to a parent of the child, but is not a parent of the
child. As same-sex couples cannot marry, the child of one member of the
couple by a former relationship cannot be considered to be the other member
of the couple's stepchild. This is also the case for children of opposite-
sex de facto partners by a former relationship. The current definition
does not recognise that a de facto partner of a parent of a child may treat
that child as a member of the family formed with the parent.
The proposed amendment will extend the existing concept of step-parent to
include a person who is, or has been a de facto partner of a parent of the
child and treats or treated the child as a member of the family formed with
the parent. 'De facto partner' is given the meaning in section 60EA of the
Family Law Act (as proposed to be amended by the Family Law Amendment Bill)
which includes a person in a registered relationship.
The proposed amendment will mean that a court can find that a de facto step-
parent has a duty to maintain a child and make a child maintenance order
against the de facto step-parent under section 66M of the Family Law Act.
This is a secondary duty subject to the primary duty of the parents of the
child to maintain the child - see section 66D of the Family Law Act.
Item 52B amends paragraph 66M(3)(b) of the Family Law Act as a consequence
of amendments to the definition of 'step-parent' by Item 52A. The amended
provision requires the court to have regard to the length and circumstances
of the marriage or relationship of the step-parent with the parent of the
step-child in determining whether the step-parent has a duty to maintain
the step-child.
Item 52C relates to the application of the proposed amendment to the
definition of 'step-parent' to the Child Support (Registration and
Collection) Act. The definition of 'step-parent' in the Child Support
(Registration and Collection) Act currently has the same meaning as in the
Family Law Act. This amendment provides that the proposed amendment of the
Family Law Act definition of 'step-parent' in Amendment 15 affects the
definition of 'step-parent' in the Child Support (Registration and
Collection) Act only after 1 July 2009. This will align with the
commencement of the amendments to that Act made by Amendment 39.
Amendments 24
This amendment omits the insertion of a subsection '(1)', as a consequence
of the omission of subsection 3(2) by Amendment 27.
Amendment 26
Amendment 26 omits a note referring to subsection 3(2) as a consequence of
the omission of that subsection by Amendment 27.
Amendment 39
This amendment inserts new Items 22A - H, 22J and 22K into Schedule 6
(Families, Housing, Community Services and Indigenous Affairs) of the
General Law Reform Bill.
Item 22A amends the definition of 'member of a couple' in subsection 5(1)
of the Child Support (Assessment) Act. The current definition of 'member
of couple' only covers married couples and opposite-sex de facto couples.
The new definition will include a person who is living with another person,
whether of the same-sex or opposite-sex, on a genuine domestic basis
although not legally married to the other person. It will also capture a
person who is in a 'registered relationship' as defined by section 22B of
the Acts Interpretation Act (as proposed to be amended by parliamentary
amendments to the Superannuation Bill).
Item 22B amends the definition of 'parent' in subsection 5(1) of the Child
Support (Assessment) Act to include a person who is a parent under sections
60H and 60HB of the Family Law Act (as proposed to be amended by the Family
Law Amendment Bill). This will mean that in relation to children born as a
result of an artificial conception procedure, female same-sex de facto
couples would be recognised as the parents of a child born where the couple
consent to the artificial conception procedure and one of them is the birth
mother. Parents of children born under surrogacy arrangements where there
is a court order giving effect to the arrangement are also recognised as a
'parent' for the purposes of child support.
Items 22C and 22D insert a definition of 'relative' in the Child Support
(Assessment) Act which gives effect to the 'tracing rule' as described in
the Key Concepts and Definitions section of this Supplementary Explanatory
Memorandum. This will ensure that same-sex parents and their families are
recognised as relatives of the child.
Item 22E relates to paragraph 29(2)(d) of the Child Support (Assessment)
Act which describes one of 8 fact situations in which the Registrar is to
be satisfied that a person is a parent of a child. Paragraph 29(2)(d)
currently provides that a parent is a parent for the purposes of this Act
where that person executed an instrument under the law of the Commonwealth
or a State or Territory or prescribed overseas jurisdiction acknowledging
that the person is the 'father or mother' of the child. This paragraph is
discriminatory as it may prevent the recognition of instruments executed
legally by a co-father or co-mother in Australia or in an overseas
jurisdiction. Item 22F amends this paragraph by replacing the phrase 'the
father or mother' with the gender-neutral term 'parent'.
Item 22F inserts a new fact situation in subsection 29(2), which lists fact
situations in which the Registrar is to be satisfied that a person is a
parent of a child. The new fact scenario will recognise a person who is a
parent of a child under section 60H or section 60HB of the Family Law Act
(as proposed to be amended by the Family Law Amendment Bill).
Items 22G and 22H relate to the definition of 'de facto relationship' as it
applies to section 163A of the Child Support (Assessment) Act. The current
definition of 'de facto relationship' in subsection 163A(5) only applies to
a relationship between a 'man and a woman'. This definition is
discriminatory as it does not recognise same-sex relationships.
Amendment 22G amends sub-paragraph 163A(2)(b)(v)(A) which exempts from duty
child support agreements that relate to a child whose parents were:
- not married to each other, or
- not living with each other in a de facto relationship at the time the
child was conceived.
This provision deals with child support agreements that relate to a child
conceived when there was no relationship - marriage or de facto - between
the parents. Amendment 22GA will remove the phrase 'not living with each
other' and provide instead that the parents were not in a de facto
relationship with each other at the time the child was conceived. This
reflects the amended definition of de facto relationship in subsection
163A(5) (as proposed to be amended by amendment 22H). That is, for parents
to not have been in a de facto relationship with each other at the time of
conception, they were either not living together on a genuine domestic
basis or not in a registered relationship.
Item 22H inserts a new definition of 'de facto relationship' which includes
a relationship between two persons, whether of the same sex or of different
sexes, who live with each other on a genuine domestic basis although they
are not legally married. It also captures couples who are in a 'registered
relationship' as defined by section 22B of the Acts Interpretation Act (as
proposed to be amended by parliamentary amendments to the Superannuation
Bill).
Items 22J and 22K insert a definition of 'relative' in the Child Support
(Registration and Collection) Act which give effect to the 'tracing rule'
as described in the Key Concepts and Definitions section of this
Supplementary Explanatory Memorandum.
Application provisions for amendments made by Schedule 2, Part 3 of the
General Law Reform Bill will be provided for under regulations.
Amendment 58
This amendment omits the word 'general' from the heading of Part 2 of
Schedule 7 (Finance and Deregulation) as a consequence of the removal of
Parts 3 and 4 of Schedule 7 by Amendments 62 and 63.
Amendment 61
This amendment removes the words '(whether Part 2, 3 or 4)' from Item 55 as
a consequence of the omission of Parts 3 and 4 of Schedule 7 (Finance and
Deregulation) by Amendments 62 and 63.
Amendments 62, 63
These amendments omit Parts 3 and 4 of Schedule 7 (Finance and
Deregulation) respectively. Part 3 and Part 4 of Schedule 7 are no longer
necessary as they related to the application of items in relation to the
'product of the relationship' definition of 'child'. The amendments to the
Superannuation Act which were to be effected by Part 3 and Part 4 are now
effected by Items 53A and 54A which are to be included in the General Law
Reform Bill by amendments 59 and 60 respectively.
Amendment 82
This amendment amends Item 7 of Schedule 10 (Immigration and Citizenship)
to the General Law Reform Bill. Item 7 inserts a new section 8 into the
Australian Citizenship Act to provide for recognition of children born to
same and opposite-sex couples as a result of artificial conception
procedures. As a consequence of the amendments to the Family Law Act to
recognise children of same-sex de facto couples conceived through
artificial conception procedures and surrogacy arrangements, this amendment
inserts a revised section 8 which refers to the Family Law Act. The
provision will apply equally to married couples and to same and opposite-
sex de facto partners.
The revised section 8 inserted by this amendment will apply in cases in
which someone is a child of a person under section 60H or 60HB of the
Family Law Act. Where the child is also the child of the person's spouse
or de facto partner because of those sections, or is the biological child
of the spouse or de facto partner, the child will be taken to be the child
of the person and his or her spouse or de facto partner, and not the child
of anyone else. As a consequence, gamete donors and surrogate mothers will
not be considered to be parents for the purposes of the Australian
Citizenship Act where the requirements of this section are satisfied. A
child will only be able to claim citizenship by descent from the two
parents recognised by this section.
Amendment 83
This amendment inserts a new Item 12A into the General Law Reform Bill.
The new Item will insert a definition of 'adoption' into subsection 5(1) of
the Migration Act to provide that adoption has the same meaning as in the
Migration Regulations 1994.
In addition to the common law meaning of adoption, the migration visa
programme currently recognises customary adoption in specific circumstances
where formal adoption arrangements are not available or reasonably
practicable under the law of the place where the arrangements were made and
it occurs in accordance with the usual practice, or a recognised custom, in
the culture or cultures of the adoptee and the adopter. Customary adoption
is reflected in the definition of adoption in the Migration Regulations and
does not sever the ties with the adoptee's previous parents, as is the case
for formal adoption. This amendment will ensure that a child who is
recognised as having been customarily adopted for the purposes of the
Migration Regulations through the migration visa programme will be
recognised as a child of both the child's previous parent/s and adoptive
parent/s for the purposes of the Migration Act.
Amendment 84
This amendment amends the definition of 'child' in the Migration Act by
removing the 'product of the relationship' definition of child in Item 20
of Schedule 10 (Immigration and Citizenship) to the General Law Reform Bill
and instead referring to a child within the meaning of the Family Law Act,
except where the child is an adopted child within the meaning of that Act.
'Child' within the meaning of the Family Law Act currently does not include
a step-child or foster child.
A new paragraph (1)(b) is inserted to include as a person's child someone
who is the adopted child of a person within the meaning of the Migration
Act. This will allow the Migration Act concept of adoption to apply rather
than the Family Law Act concept (see Amendment 83 above).
The change in approach to the definition of 'child' is described in the Key
Concepts and Definitions section of this Supplementary Explanatory
Memorandum.
Amendments 88, 89
These amendments make additional amendments to the Civil Aviation
(Carrier's Liability) Act to correct existing references to 'spouse' to
read 'spouse or de facto partner' to ensure that the relevant provisions
apply equally to same and opposite-sex couples.
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