SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS--GENERAL LAW REFORM) ACT 2008 (NO. 144, 2008) - SCHEDULE 10 Immigration and Citizenship
SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS--GENERAL LAW REFORM) ACT 2008 (NO. 144, 2008) - SCHEDULE 10
Immigration and CitizenshipPart 1 -- Australian Citizenship Act 2007
1 Section 3 (definition of child )
Repeal the definition, substitute:
"child" : without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) an adopted child, stepchild or exnuptial child of the person;
(b) someone who is a child of the person within the meaning of the Family Law Act 1975 .
2 Section 3 (definition of commencement day )
After "54", insert "(as originally enacted)".
3 Section 3
Insert:
de facto partner has the meaning given by the Acts Interpretation Act 1901 .
4 Section 3
Insert:
"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.
5 After subsection 6(1)
Insert:
(1A) In paragraph (1)(a):
"parental responsibility" has the same meaning as in Part VII of the Family Law Act 1975 .
6 Subsection 6(2)
Omit "(1)(a), (b)", substitute "(1)(b)".
7 Section 8
Repeal the section, substitute:
8 Children born as a result of artificial conception procedures or surrogacy arrangements
(1) This section applies if a child is:
(a) a child of a person under section 60H or 60HB of the Family Law Act 1975 ; and
(b) either:
(i) a child of the person's spouse or de facto partner under that section; or
(ii) a biological child of the person's spouse or de facto partner.
(2) The child is taken for the purposes of this Act:
(a) to be the child of the person and the spouse or de facto partner; and
(b) not to be the child of anyone else.
8 Application of amendments affecting sections 3, 6 and 8
The amendments of the Australian Citizenship Act 2007 made by this Part, except the amendments of section 22 of that Act, apply in relation to the acquisition or cessation of Australian citizenship on or after the commencement of this Part because of circumstances (including relationships) existing before, on or after that commencement.
9 Subsection 22(9)
Omit "widow or widower", substitute "de facto partner or surviving spouse or de facto partner".
Note: The heading to subsection 22(9) is altered by omitting " widow or widower " and substituting " de facto partner or surviving spouse or de facto partner ".
10 Paragraph 22(9)(a)
After "spouse", insert "or de facto partner".
11 Subsection 22(10)
Repeal the subsection, substitute:
(10) In subsection (9):
surviving spouse or de facto partner of a person who has died means a person who was the person's spouse or de facto partner immediately before the person died and who has not later become the spouse or de facto partner of another person.
12 Application of amendments of section 22
The amendments of section 22 of the Australian Citizenship Act 2007 made by this Part apply in relation to applications to become an Australian citizen:
(a) that are made on or after the commencement of this Part; or
(b) that:
(i) were made before the commencement of this Part; and
(ii) were applications in relation to which decisions were not made before that commencement to approve, or to refuse to approve, the applicants becoming Australian citizens.
12A Subsection 5(1)
Insert:
"adoption" has the same meaning as in the regulations.
13 Subsection 5(1)
Insert:
"child" of a person has a meaning affected by section 5CA.
14 Subsection 5(1)
Insert:
de facto partner has the meaning given by section 5CB.
15 Subsection 5(1) (paragraph (a) of the definition of health criterion )
Omit "(within the meaning of the regulations)".
16 Subsection 5(1)
Insert:
"member of the family unit" of a person has the meaning given by the regulations made for the purposes of this definition.
17 Subsection 5(1)
Insert:
"member of the same family unit" : one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
18 Subsection 5(1)
Insert:
"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 section 5CA.
19 Subsection 5(1)
Insert:
"spouse" has the meaning given by section 5F.
Insert:
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 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.
21 After section 5E
Insert:
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
5G Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person's family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person's family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family or a relative of the person.
This does not limit who is a member of a person's family or relative of a person.
22 Paragraph 36(2)(b)
Omit "the spouse or a dependant of", substitute "a member of the same family unit as".
23 Subsection 48A(2) (paragraph (ab) of the definition of application for a protection visa )
Omit "the spouse or a dependant of", substitute "a member of the same family unit as".
24 Application of amendments of sections 36 and 48A
The amendments of sections 36 and 48A of the Migration Act 1958 made by this Part apply in relation to:
(a) applications for visas made on or after the commencement of this Part; and
(b) applications for visas made before that commencement and not decided before that commencement.
25 Subsection 83(1)
After "spouse" (wherever occurring), insert "or de facto partner".
Note: The heading to section 83 is altered by inserting " , de facto partner " after " spouse ".
26 At the end of subsection 83(1)
Add:
Note: Subsection 5(1) defines de facto partner and spouse . For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008 . This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009.
27 At the end of subsection 83(2)
Add:
Note: Subsection 5(1) defines child and parent . For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008 .
28 Application of amendments affecting section 83
Amendments of subsection 83(1)
(1) The amendments of subsection 83(1) of the Migration Act 1958 made by this Part apply in relation to visas granted on or after the commencement of this Part.
Other amendments affecting subsection 83(1)
(2) The definitions of de facto partner and spouse in subsection 5(1) and sections 5CB and 5F of the Migration Act 1958 (as amended by this Part) apply for the purposes of the operation of subsection 83(1) in relation to visas granted on or after the commencement of this Part.
(3) Subitem (2) does not limit the operation of those definitions in relation to other provisions of that Act.
Amendments affecting subsection 83(2)
(4) The definitions of child and parent in subsection 5(1) of the Migration Act 1958 (as amended by this Part) apply for the purposes of the operation of subsection 83(2) in relation to visas granted on or after the commencement of this Part.
(5) Subitem (4) does not limit the operation of those definitions in relation to other provisions of that Act.
29 Subsection 84(3)
After "spouse", insert ", de facto partner".
30 Paragraph 84(5)(a)
Repeal the paragraph, substitute:
(a) does not have a spouse or de facto partner; and
31 Subsection 87(1)
After "spouse", insert ", de facto partner".
32 Paragraph 87(2)(a)
Repeal the paragraph, substitute:
(a) does not have a spouse or de facto partner; and
33 Application of amendments affecting sections 84 and 87
(1) The definition of child in subsection 5(1) of the Migration Act 1958 (as amended by this Part) applies for the purposes of the operation of sections 84 and 87 of that Act in relation to:
(a) applications for visas that are made on or after the commencement of this Part; and
(b) applications for visas that were made before the commencement of this Part and were not finally determined before that commencement.
(2) Subitem (1) does not limit the operation of that definition in relation to other provisions of that Act.
(3) The amendments of sections 84 and 87 of the Migration Act 1958 made by this Part apply in relation to:
(a) applications for visas that are made on or after the commencement of this Part; and
(b) applications for visas that were made before the commencement of this Part and were not finally determined before that commencement.
34 At the end of section 91S
Add:
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
35 Subsection 134(10) (definition of member of the family unit )
Repeal the definition.
36 Subsection 137T(3)
Repeal the subsection.
37 Subsection 140(1)
Omit "(within the meaning of the regulations)".
38 At the end of subsection 192(7)
Add:
Note: Section 5G may be relevant for determining relationships for the purposes of paragraph (7)(b).
39 Subsections 199(1) and (2) and 205(1) and (2)
After "spouse" (wherever occurring), insert "or de facto partner".
40 Paragraphs 211(1)(a) and (2)(a)
Omit "the spouses of each other within the meaning of the regulations", substitute "spouses or de facto partners of each other".
Note: The heading to section 211 is altered by inserting " , de facto partners " after " spouses ".
41 Subparagraph 211(3)(b)(i)
Omit "spouse within the meaning of the regulations", substitute "spouse or de facto partner".
42 Subparagraph 211(3)(b)(ii)
Omit "such a spouse", substitute "a spouse, or a de facto partner,".
43 Application of amendments of section 211
The amendments of section 211 of the Migration Act 1958 made by this Part apply in relation to detention starting on or after the commencement of this Part.
44 Paragraphs 212(1)(a) and (2)(a)
Omit "the spouses of each other within the meaning of the regulations", substitute "spouses or de facto partners of each other".
Note: The heading to section 212 is altered by inserting " , de facto partners " after " spouses ".
45 Subparagraph 212(3)(b)(i)
Omit "spouse within the meaning of the regulations", substitute "spouse or de facto partner".
46 Subparagraph 212(3)(b)(ii)
Omit "such a spouse", substitute "a spouse, or a de facto partner,".
47 Application of amendments of section 212
The amendments of section 212 of the Migration Act 1958 made by this Part apply in relation to removal and deportation on or after the commencement of this Part.
48 Paragraph 237(a)
Omit "married to, or is the de facto spouse of, and has a genuine and continuing marital relationship", substitute "the spouse or de facto partner of, and has a genuine and continuing relationship, involving a shared life to the exclusion of all others".
49 Paragraph 237(b)
Repeal the paragraph.
50 Subparagraphs 237(c)(i), (ii) and (iii)
Repeal the subparagraphs, substitute:
(i) entering into a married relationship that is not intended to be a genuine and continuing relationship involving a shared life to the exclusion of all others; or
(ii) pretending to be a de facto partner of another person.
51 Section 238 (definition of interdependency relationship )
Repeal the definition.
52 Subsection 241(1)
Omit "de facto spouses of each other for the purposes of the regulations", substitute "de facto partners of each other".
53 Subsection 241(1)
Omit "such spouses" (wherever occurring), substitute "such de facto partners".
54 Section 242
Repeal the section.
55 Subsection 243(1)
Omit "married to, or being, for the purposes of the regulations, the de facto spouse of,", substitute "the spouse or de facto partner of".
56 Subsection 243(1)
Omit "genuine and continuing marital relationship", substitute "married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate".
57 Subsection 243(3)
Omit "married to, or being, for the purposes of the regulations, the de facto spouse of,", substitute "the spouse or de facto partner of".
58 Subsection 243(3)
Omit "genuine and continuing marital relationship", substitute "married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate".
59 Section 244
Repeal the section.
60 Paragraph 245(1)(a)
Omit "have a genuine and continuing marital relationship between them", substitute "are in a married relationship (within the meaning of subsection 5F(2))".
61 Paragraphs 245(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
62 Paragraph 245(3)(a)
Omit "have a genuine and continuing marital relationship between them", substitute "are in a married relationship (within the meaning of subsection 5F(2))".
63 Paragraphs 245(3)(b) and (c)
Repeal the paragraphs, substitute:
(b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
64 Application of amendments of Subdivision B of Division 12 of Part 2
The amendments of Subdivision B of Division 12 of Part 2 of the Migration Act 1958 made by this Part apply in relation to visas applied for on or after the commencement of this Part.
65 Paragraph 338(6)(c)
After "spouse,", insert "de facto partner,".
66 At the end of subsection 338(6)
Add:
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
67 Paragraph 338(7)(b)
After "spouse,", insert "de facto partner,".
68 At the end of subsection 338(7)
Add:
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
69 Application of amendments of section 338
The amendments of section 338 of the Migration Act 1958 made by this Part apply to decisions made on or after the commencement of this Part.
70 At the end of subsection 347(2)
Add:
Note: Section 5G may be relevant for determining family relationships for the purposes of paragraph (2)(c).
71 At the end of subsection 431(2)
Add:
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
72 Subsection 492(2)
Omit ", 243 or 244", substitute "or 243".
73 At the end of subsection 501K(2)
Add:
Note: Section 5G may be relevant for determining relationships for the purposes of this subsection.
74 Subsection 507(1)
Omit "married or being the de facto spouse", substitute "the spouse or de facto partner".
75 Paragraph 507(1)(a)
Omit "de facto spouse", substitute "de facto partner".
Division 2--Consequential amendment
Australian Citizenship Act 2007
76 Subparagraph 34(6)(a)(i)
Omit ", 243 or 244", substitute "or 243, or former section 244 (as in force before its repeal by the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws--General Law Reform) Act 2008 ),".
Part 3 -- Immigration (Education) Act 1971
77 Section 3
Insert:
"child" of a person has the same meaning as in the Migration Act.
78 Section 3
Insert:
"parent" of a person has the same meaning as in the Migration Act.
Part 4 -- Immigration (Guardianship of Children) Act 1946
79 Section 4
Insert:
"parent" : without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975 .
80 Section 4
Insert:
"relative" of a person includes:
(a) a parent of the person; and
(b) anyone who is a step‑parent of the person or would be except that he or she is not legally married to his or her de facto partner (within the meaning of the Acts Interpretation Act 1901 ); and
(c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) were a relative of the person.
81 Section 6
Omit "father and mother", substitute "parents".
82 Application
The amendments made by this Part apply in relation to persons under 18 who enter Australia on or after commencement.