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SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS--SUPERANNUATION) ACT 2008 - SCHEDULE 2 Attorney-General's amendments

SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS--SUPERANNUATION) ACT 2008 - SCHEDULE 2

Attorney-General's amendments

Part   1 -- Amendment of the Acts Interpretation Act 1901

Acts Interpretation Act 1901

1   After section   22

Insert:

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.

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.

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:

  (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.

  (2)   In determining for the purposes of paragraph   ( 1)(c) whether 2 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 circumstances:

  (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.

  (3)   No particular finding in relation to any circumstance mentioned in subsection   ( 2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph   ( 1)(c).

  (4)   For the purposes of paragraph   ( 1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of:

  (a)   a temporary absence from each other; or

  (b)   illness or infirmity of either or both of them.

  (5)   For the purposes of subsection   ( 1), a   de   facto   relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section   22B) with someone else or is in another   de   facto   relationship.

  (6)   For the purposes of paragraph   ( 1)(b), 2 persons are related by family if:

  (a)   one is the child (including an adopted child) of the other; or

  (b)   one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

  (c)   they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

  (7)   For the purposes of subsection   ( 6), adopted means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

Part   2 -- Amendment of other Acts

Federal Magistrates Act 1999

2   Section   5

Insert:

"marital or couple relationship" has the meaning given by subclause   9E(5) of Schedule   1.

3   Section   5 (definition of marital relationship )

Repeal the definition.

4   Section   5

Insert:

"partner" : a person is the partner of another person if the 2 persons have a relationship as a couple (whether the persons are the same sex or different sexes).

5   Subclauses   9E(2), (3) and (4) of Schedule   1

After "marital" (wherever occurring), insert "or couple".

6   Subclause   9E(5) of Schedule   1

After " marital ", insert " or couple ".

Note:   The heading to subclause   9E(5) of Schedule   1 is replaced by the heading " Meaning of marital or couple relationship ".

7   Subclause   9E(5) of Schedule   1

After "husband or wife" (wherever occurring), insert "or partner".

8   Subclause   9E(6) of Schedule   1

After "marital", insert "or couple".

9   After paragraph   9E(7)(b) of Schedule   1

Insert:

  (ba)   the persons' relationship was registered under a law of a State or Territory prescribed for the purposes of section   22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

10   At the end of paragraph   9E(7)(c) of Schedule   1

Add:

  or (iii)   a child of both of the persons within the meaning of the Family Law Act 1975 ;

11   After subparagraph   9F(1)(b)(i) of Schedule   1

Insert:

  (ia)   the person is a child of the Magistrate within the meaning of the Family Law Act 1975 ;

12   Application of amendments of the Federal Magistrates Act 1999

The amendments of the Federal Magistrates Act 1999 made by this Schedule apply in relation to any payment payable under clause   9D of Schedule   1 to that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person:

  (a)   held office as a Federal Magistrate; or

  (b)   was a retired disabled Federal Magistrate.

Judges' Pensions Act 1968

13   Subsection   4(1)

Insert:

"child of a marital or couple relationship" , in relation to a marital or couple relationship, means:

  (a)   a child born of the marital or couple relationship; or

  (b)   a child adopted by the people in the marital or couple relationship during the period of the relationship; or

  (c)   someone who is, within the meaning of the Family Law Act 1975 , a child of both of the people in the marital or couple relationship.

14   Subsection   4(1) (definition of child of a marital relationship )

Repeal the definition.

15   Subsection   4(1)

Insert:

"marital or couple relationship" has the meaning given by section   4AB.

16   Subsection   4(1)

Insert:

"partner" : a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

17   Subsection   4(1)

Insert:

"spouse" has a meaning affected by section   4AC.

18   After paragraph   4AA(a)

Insert:

  (aa)   the child is a child of the deceased Judge within the meaning of the Family Law Act 1975 ; or

19   Subsection   4AB(1)

After " marital ", insert " or couple ".

Note:   The heading to section   4AB is replaced by the heading " Marital or couple relationship ".

20   Subsections   4AB(1) and (2)

After "husband or wife" (wherever occurring), insert "or partner".

21   Subsection   4AB(3)

After "marital", insert "or couple".

22   After paragraph   4AB(4)(b)

Insert:

  (ba)   the persons' relationship was registered under a law of a State or Territory prescribed for the purposes of section   22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

23   At the end of paragraph   4AB(4)(c)

Add:

  or (iii)   a child of both of the persons within the meaning of the Family Law Act 1975 ;

24   Subsections   4AC(2) and (3)

After "marital" (wherever occurring), insert "or couple".

25   Subsections   10(2), 11(3) and 12(3)

After "marital" (wherever occurring), insert "or couple".

26   Application of amendments of the Judges' Pensions Act 1968

(1)   The amendments of the Judges' Pensions Act 1968 made by this Schedule apply in relation to any pension payable under that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was a Judge or a retired Judge.

(2)   The amendments of the Judges' Pensions Act 1968 made by this Schedule apply in relation to any pension payable under the Building and Construction Industry Improvement Act 2005 in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was or had been the ABC Commissioner.

Law Officers Act 1964

27   Subsection   16(1)

Omit "other than subsection   6(3) (including the provisions relating to widows and children)", substitute "other than subsection   4(2) (including the provisions relating to spouses and children)".

28   Application of amendments of the Law Officers Act 1964

The amendments of the Law Officers Act 1964 made by this Schedule apply in relation to any pension payable under section   16 of that Act because of the application of the Judges' Pensions Act 1968 in respect of a person who:

  (a)   was appointed as Solicitor - General before 1   January 1998; and

  (b)   dies on or after the commencement of this Schedule.

Part   3 -- Regulations

29   Regulations may deal with transitional, saving or application matters

The Governor - General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments and repeals made by this Schedule or any other Schedule to this Act.