Millbank, Jenni --- "Recognition of Lesbian and Gay Families in Australian Law - Part One: Couples" [2006] FedLawRw 1; (2006) 34(1) Federal Law Review 1
[∞] This article on same-sex couples, and the one to follow on parents, is dedicated to the memory of Danny Sandor. Danny was widely known and loved in family law circles and will long be remembered as an indefatigable human rights advocate, particularly in the area of children’s rights. I want to note here his incredible contribution to the development of gay and lesbian relationship rights in Australia. Danny was directly involved in the Victorian partnership reforms but was also indirectly involved in almost everything that has happened in same-sex family law reform for the past decade, as he helped to generate, cross-pollinate and popularise many of the key ideas behind the reforms. Danny’s particular genius was to know everyone, hear everything, and conclude virtually every conversation with a new acquaintance by linking them together with one of his friends or colleagues for a new project.
[*] Associate Professor of Law, University of Sydney. Thanks to Reg Graycar for her comments on an earlier draft and Mel Gangemi for her invaluable research assistance. The information in this paper is up to date as at 3 April 2006.
[1] See Reg Graycar, 'Law Reform by Frozen Chook: Family Law Reform for the New Millennium?' [2000] MelbULawRw 29; (2000) 24 Melbourne University Law Review 737.
[2] From 10 000 to 20 000 couples: Australian Bureau of Statistics, Year Book Australia: Feature Article: Same-Sex Couple Families (2005).
[3] Victorian Gay and Lesbian Rights Lobby, Everyday Experiments: Report of a Survey into Same-Sex Domestic Relationships in Victoria (2001).
[4] Australian Bureau of Statistics, above n 2.
[5] Victims Support and Rehabilitation Act 1996 (NSW); Victims Rights Act 1996 (NSW). At that time one other anomalous regulation required disclosure of a same-sex partner's interest: Protection of the Environment Administration (Disclosure by Board Members) Regulation 1992 (NSW).
[6] Domestic Relationships Act 1994 (ACT); Family Provision (Amendment) Act 1996 (ACT); Administration and Probate (Amendment) Act 1991 (ACT). See Jenni Millbank, 'If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?' (1998) 12 Australian Journal of Family Law 99, 133; Reg Graycar and Jenni Millbank, 'The Bride Wore Pink … To the Property (Relationships) Amendment Act 1999: Relationship Law Reform in New South Wales' (2000) 17 Canadian Journal of Family Law 227.
[7] Millbank, 'If Australian Law Opened its Eyes to Lesbian and Gay Families', above n 6, 102.
[8] In 2004 and 2005 the South Australian Labor government struggled to pass legislation as it did not control the Legislative Council (Upper House) of Parliament. The various forms of the Bill are discussed below in Section III(h). Following the South Australia election in March 2006, the Labor government now has control of both houses.
[9] [2000] FCA 1009; (2000) 99 FCR 116 ('McBain'); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372. See Kristen Walker, '1950s Family Values vs Human Rights: In Vitro Fertilisation, Donor Insemination and Sexuality in Victoria' (2000) 11 Public Law Review 292; Kristen Walker, 'The Bishops, the Doctor, his Patient and the Attorney-General: The Conclusion of the McBain Litigation' (2002) 30 Federal Law Review 507.
[10] See Walker, '1950s Family Values vs Human Rights', above n 9; Walker, 'The Bishops, the Doctor, his Patient and the Attorney-General', above n 9. See also, eg, Matt Price and Clara Pirani, 'Demand for IVF Ban on Lesbians', The Australian (Sydney), 2 July 2005, 1; Mike Seccombe, 'Women's Group Leads Fight for IVF', Sydney Morning Herald (Sydney), 1 May 2001, 4; Victoria Button, 'Legal Bid to Bypass Fertility Ruling', The Age (Melbourne), 28 August 2000, 1; Chloe Saltau and Kerry Taylor, 'IVF Rules Face Court Test, Says Doctor', The Age (Melbourne), 9 August 2000, 9.
[11] The proposed amendments would have allowed states to discriminate on the basis of marital status in their own legislation if they chose to through removing the application of the Sex Discrimination Act 1984 (Cth) to fertility services. The federal amendments could not themselves mandate such discrimination.
[12] See Maxine McKew, Interview with Ross Cameron and Tanya Plibersek (ABC Lateline, 28 May 2004); Stefanie Balogh, 'PM Vows Gay Marriage Ban', The Courier-Mail (Brisbane), 5 August 2004, 1; Editorial, 'Why Prohibit Gay Marriage?', The Age (Melbourne), 10 August 2004, 10; Misha Schubert, 'Australia "Soft on Terror, Hard on Gays"' The Age (Melbourne), 13 August 2004, 3.
[13] This latter development is striking when it is noted that all other federal law inclusive of same-sex couples uses non-couple based, open-ended categories such as 'dependant' rather than spouses or family. This is discussed below in Section IV.
[14] Criminal Code 1995 (Cth) s 102.1 was amended by the Anti-Terrorism Act (No 2) 2004 (Cth) sch 3. Section 102.1 now provides: 'close family member of a person means:
(a) the person's spouse, de facto spouse or same-sex partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, step-child or grandchild of the person; or
(d) a brother, sister, step-brother or step-sister of the person; or
(e) a guardian or carer of the person.'
[15] Criminal Code 1995 (Cth) s 102.8(4)(a).
[16] See Anti-Terrorism Act (No 2) 2005 (Cth) sch 4 pt 1 s 105.35(3)(a) defining a 'family member' as including a 'same-sex partner'.
[17] Explanatory Memorandum, Marriage Amendment Bill 2004 (Cth) 1. See also Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2004, 31459 (Philip Ruddock, Attorney-General).
[18] Marriage Amendment Act 2004 (Cth) sch 1.
[19] Section 88EA of the Marriage Act 1961 (Cth) now provides: 'A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.'
[20] Convention on Celebration and Recognition of the Validity of Marriages, open for signature 14 March 1978, 1901 UNTS 131 (entered into force 1 May 1991).
[21] See Peter Nygh, 'The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages' (2002) 16 Australian Journal of Family Law 139.
[22] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2004, 31459 (Philip Ruddock, Attorney-General).
[23] Section 46 of the Marriage Act 1961 (Cth) states that the celebrant should explain the nature of marriage with words that include 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.'
[24] Drawn from Hyde v Hyde (1866) LR 1 P&D 130. Note particularly that in those jurisdictions which have introduced same-sex marriage through court-based challenges, not one has done so through the alteration of the common law meaning of marriage. Rather, courts have affirmed the common law meaning of marriage as exclusively heterosexual, but have held that this definition is unconstitutional: see, eg, the discussion in Halpern v Canada (Attorney-General) (2003) 225 DLR (4th) 529. I am indebted to Reg Graycar for this point.
[25] See the obiter of McHugh J in Re Wakim; Ex parte McNally (1999) 198 CLR 511, 553. See also Dan Meagher, 'The Times are They A-Changin’? Can the Commonwealth Parliament Legislate for Same Sex Marriages?' (2003) 17 Australian Journal of Family Law 134.
[26] The only rationale, implied rather than stated in the Bills Digest, was that the common law definition was 'changing/being elucidated': Marriage Legislation Amendment Bill 2004, Bills Digest 155, 2-3. The sole support for this claim was a reference to the transgender marriage case of Re Kevin (Validity of Marriage of Transsexual) (2001) 165 FLR 404; A-G (Cth) v Kevin [2003] FamCA 94; (2003) 172 FLR 300. Kevin was born female but had undergone gender reassignment surgery and had been issued with a birth certificate, ensuing legal status as a male under NSW law. The digest notes that the Family Court held that Kevin was a man for the purposes of the Marriage Act 1961 (Cth) and declared his marriage to a woman valid, despite the opposition of the Commonwealth Attorney-General as intervenor and appellant. Although possibly an accurate reflection of government concerns, this reference is spurious in the extreme. The Court was not asked to address the question of same-sex marriage, but rather had to answer the question of who was a 'man' for the purpose of the Marriage Act 1961 (Cth). The Full Court did not question, and indeed expressly reaffirmed, the common law definition of marriage as exclusively opposite-sex, leading to the contrary conclusion to that suggested by the memoranda: [2003] FamCA 94; (2003) 172 FLR 300, 305 [16]. Moreover, the 2004 amendments to the Act do not affect the validity of transgender marriages as they do not define 'man' and 'woman'. Unless hordes of lesbians are waiting in the wings, determined to undergo gender reassignment surgery and a change of gender status under NSW law so that they may marry their girlfriends, then there is no question that the issues of transgender and same-sex marriage are, and remain, wholly unconnected.
[27] Civil marriage is currently open to same-sex couples in the following jurisdictions: the Netherlands, Belgium, Canada, Spain and the state of Massachusetts in the United States. Of these, however, only Canada permits two non-citizens to marry. Many other jurisdictions also grant same-sex couples 'civil unions'. However civil unions do not always ascribe the same status as marriage (for instance reserving certain rights) and even those that do offer substantially the same rights do not necessarily allow portability of status to other jurisdictions.
[28] At the time of the ban, the Canadian Provinces of British Columbia, Ontario and Quebec offered civil marriage to same-sex couples following a series of successful constitutional challenges: see Egale Canada Inc v Canada (Attorney-General) (2003) 225 DLR (4th) 472; Halpern v Canada (Attorney-General) (2003) 225 DLR (4th) 529; Hendricks v Quebec (Attorney-General) [2002] RJQ 2506. As a result, the Canadian federal government referred the issue to the Supreme Court of Canada, asking whether the federal government had power to legislate for same-sex marriage and whether any lesser form of recognition such as civil unions would be a breach of constitutional equality guarantees. The Court held in 2004 that the answer to both questions was yes: Reference re Same-Sex Marriage [2004] 3 SCR 698. An Act redefining marriage as 'any two persons' was passed on 19 July 2005 and signed immediately into law: see Civil Marriage Act, SC 2005, c 33.
[29] On 4 August 2004, the National Marriage Coalition (a group comprising right-wing and fundamentalist religious groups such as the Australian Christian Lobby, the Australian Family Association and the Fatherhood Foundation) hosted a 'National Marriage Forum' at Parliament House, Canberra. The forum was addressed by Prime Minister John Howard, (then) Deputy Prime Minister John Anderson, Tasmanian Senator Guy Barnett and Shadow Attorney-General Nicola Roxon.
[30] This Bill was referred to a Parliamentary Committee by the Senate on 23 June 2004. This Committee was due to report after the impending federal election. In response, the government excised the adoption provisions and reintroduced the Bill. For a discussion of the positions of various government and opposition members on the Bill, see Polly Bush, Another Let's-Attack-A-Minority-Group-Wheel of Fortune, by John Howard (2004) The Sydney Morning Herald <http://www.smh.com.au/articles/2004/07/30/1091080443475.html> at 9 January 2006. The ban on eligibility for overseas adoptions may yet be reintroduced now that the government has control of the Senate.
[31] Explanatory Memorandum, Marriage Amendment Bill 2004 (Cth) 2.
[32] But perhaps not. Labor's pre-election promise that it would grant same-sex couples comprehensive de facto recognition at the federal level seems to have been entirely lost in the furore surrounding their lack of opposition to the marriage ban. See Polly Bush, Liberal and Labor Wedged on 'Gay Marriage' (2004) The Sydney Morning Herald <http://webdiary.smh.com.au/archives/polly_bush/000260.html> at 9 January 2006.
[33] See, eg, statements on the Australian Marriage Equality website <http://www.australianmarriageequality.com> at 9 January 2006.
[34] See, eg, Paula Ettelbrick, 'Avoiding a Collision Course in Lesbian and Gay Family Advocacy' (2000) 17 New York Law School Journal of Human Rights 753; Nancy Polikoff, 'We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will Not "Dismantle the Legal Structure of Gender in Every Marriage"' (1993) 79 Virginia Law Review 1535; Ruthann Robson, 'Mostly Monogamous Moms?: An Essay on the Future of Lesbian Legal Theories and Reforms' (2000) 17 New York Law School Journal of Human Rights 703; Nancy Polikoff, 'Ending Marriage as We Know It' (2003) 32 Hofstra Law Review 201; Susan Boyd and Claire Young, '"From Same-Sex to No Sex?": Trends Towards Recognition of (Same-Sex) Relationships in Canada' (2003) 1 Seattle Journal for Social Justice 757.
[35] See, eg, Jenni Millbank and Kathy Sant, 'A Bride in Her Every-Day Clothes: Same Sex Relationship Recognition in NSW' [2000] SydLawRw 9; (2000) 22 Sydney Law Review 181, 198–9; Graycar and Millbank, 'The Bride Wore Pink', above n 6.
[36] See Gail Mason, The Spectacle of Violence: Homophobia, Gender and Knowledge (2002) 78–95.
[37] Moreover, any recognition that did hinge on marriage alone would further entrench discrimination against unmarried same-sex parents.
[38] It is important to note that in the not-so-distant past marriage was a status that largely deprived women of rights: such as the right to work in the public service, to refuse consent to sex with her husband, to maintain her own citizenship, and hold her own property: see, eg, Reg Graycar and Jenny Morgan, The Hidden Gender of Law (2nd ed, 2002) 91–6.
[39] Hayley Katzen and Madeline Shaw for the Lesbian and Gay Legal Rights Service, The Bride Wore Pink (2nd ed, 1994). See Graycar and Millbank, 'The Bride Wore Pink', above n 6 for discussion.
[40] These were: Victims Support and Rehabilitation Act 1996 (NSW) s 9; Criminal Procedure Act 1986 (NSW) s 23A (since repealed).
[41] The amendment was put forward by the NSW Shooters Party. See New South Wales, Parliamentary Debates, Legislative Council, 21 November 1996, 6386–90 (John Tingle).
[42] A detailed exploration has been published elsewhere and so will not be repeated here: see Millbank and Sant, 'A Bride in Her Every-Day Clothes', above n 36.
[43] Decisions regarding same-sex couples under the Property (Relationships) Act 1984 (NSW) include: Michaelopoulos v Pomering [2004] NSWSC 939 (Unreported, Master McLaughlin, 12 October 2004); Mair v Hastings [2002] NSWSC 522 (Unreported, Master Macready, 31 May 2002); Dridi v Fillmore [2001] NSWSC 319 (Unreported, Master Macready, 30 April 2001). An attempt to make an application under the Act failed in Penzikis v Brown [2005] NSWSC 215 (Unreported, Master Macready, 30 March 2005) because the relationship ended before the 1999 amendments commenced.
[44] Decisions regarding same-sex couples under family provision since the amendments include: Hooper v Winten [2002] NSWSC 1071 (Unreported, Windeyer J, 13 November 2002); Devonshire v Hyde [2002] NSWSC 30 (Unreported, Master Macready, 13 February 2002).
[45] Note that the amendments created within the Property (Relationships) Act 1984 (NSW) a confusing overarching category of 'domestic relationship' which then contained the subcategories of 'de facto' (couple) and 'close personal relationship' (non-couple) within it. This structure was not replicated in the bulk of the other amended Acts (although it was replicated in the Powers Of Attorney Act 2003 (NSW) and also in the Crimes Act 1900 (NSW) through amendments made by the Crimes Amendment (Apprehended Violence) Act 1999 (NSW) and Crimes Amendment (Police and Other Law Enforcement Officers) Act 2002 (NSW)).
[46] Property (Relationships) Act 1984 (NSW) s 4(1).
[47] Property (Relationships) Act 1984 (NSW) s 4(2). The criteria were drawn from D v McA (1986) 11 Fam LR 214, 227 (Powell J).
[48] See Sant and Millbank, 'A Bride in Her Every-Day Clothes', above n 36, 191–2 for a critique of the criteria, particularly 'reputation and public aspects'.
[49] See Property (Relationships) Act 1984 (NSW) s 17; Wills, Probate and Administration Act 1898 (NSW) s 61B; Insurance Act 1902 (NSW) s 3; Protected Estates Act 1983 (NSW) s 4; Trustee Act 1925 (NSW) s 45(11).
[50] Property (Relationships) Act 1984 (NSW) s 17(2).
[51] See Property (Relationships) Act 1984 (NSW) s 62 which states that '[n]othing in the Property (Relationships) Legislation Amendment Act 1999 is to be taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between persons of the opposite sex, nor entitle any person to seek to adopt a child unless otherwise entitled to by law.'
[52] Bail Act 1978 (NSW); Coroners Act 1980 (NSW); Duties Act 1997 (NSW); Family Provision Act 1982 (NSW); Trustee Act 1925 (NSW).
[53] Property (Relationships) Legislation Amendment Act 1999 (NSW) s 5(1)(b). Section 5(2) clarifies that,
[f]or the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:
(a) for fee or reward, or
(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).
[54] Section 3(1) of the Domestic Relationships Act 1994 (ACT) defines domestic relationship to mean 'a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.' Also note that the later ACT reforms did not use this broad definition, although continuing to use the terminology of domestic, they effectively reverted to a de facto category.
[55] Dridi v Fillmore [2001] NSWSC 319 (Unreported, Master Macready, 30 April 2001). But see obiter remarks suggesting that former lovers who remained cohabiting in an emotionally and financially interdependent relationship may satisfy the close personal relationship category in Penzikis v Brown [2005] NSWSC 215 (Unreported, Master Macready, 30 March 2005).
[56] Dridi v Fillmore [2001] NSWSC 319 (Unreported, Master Macready, 30 April 2001) [108]. Master Macready repeated this holding in a family provision case: see Devonshire v Hyde [2002] NSWSC 30 (Unreported, Master Macready, 13 February 2002). This approach was approved in Hinde v Bush [2002] NSWSC 828 (Unreported, Acting Master Berecry, 13 September 2002) but was not referred to in the family provision case of Przewoznik v Scott [2005] NSWSC 74 (Unreported, McDougall J, 4 February 2005) where McDougall J held that a heterosexual relationship that did not manifest sufficient mutual commitment to satisfy the requirements of the de facto relationship category was in fact sufficient to qualify as a close personal relationship. In a marked departure from the earlier cases that suggest the category is still ill-defined, the Court held that the 'dividing point' between de facto and close personal relationships lay in 'the degree of mutual commitment and interdependence' at [18].
[57] Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Domestic Relationships: Issues for Reform - Inquiry into De Facto Relationships Legislation (1999) recommendations 7, 14–15.
[58] Ibid recommendations 12, 22–3. The Committee also recommended a request to the federal government to amend federal child support legislation to cover same-sex co-parents in the same manner as opposite-sex parents and step-parents.
[59] New South Wales Law Reform Commission, Review of the Property Relationships Act 1984 (NSW), Discussion Paper No 44 (2002). For instance, key questions were the scope of application of the new definition of de facto relationship and the basis upon which property division took place, but a great number of other NSW laws were amended in 2002 to include the new definition and, in 2003, NSW referred power over de facto couple property matters to the Commonwealth.
[60] The Act amended: Parliamentary Contributory Superannuation Act 1971 (NSW); Police Association Employees (Superannuation) Act 1969 (NSW); Police Regulation (Superannuation) Act 1906 (NSW); State Authorities Non-contributory Superannuation Act 1987 (NSW); State Authorities Superannuation Act 1987 (NSW); Superannuation Act 1916 (NSW).
[61] The Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW) amended: Adoption Act 2000 (NSW); Adoption Information Act 1990 (NSW); Conveyancers Licensing Act 1995 (NSW); Credit Act 1984 (NSW); Crimes (Administration of Sentences) Act 1999 (NSW); Criminal Procedure Act 1986 (NSW); Defamation Act 1974 (NSW); Dentists Acts 1989 (NSW); Electricity (Pacific Power) Act 1950 (NSW); Health Insurance Levies Act 1982 (NSW); Industrial Relations Act 1996 (NSW); Landlord and Tenant Act 1899 (NSW); Landlord and Tenant (Amendment) Act 1948 (NSW); Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Legal Profession Act 1987 (NSW); Local Courts (Civil Claims) Act 1970 (NSW); Motor Vehicles Taxation Act 1988 (NSW); Police Service Act 1990 (NSW); Public Sector Management Act 1988 (NSW); Residential Tenancies (Residential Premises) Regulation 1995 (NSW); Road Transport (Heavy Vehicles Registration Charges) Act 1995 (NSW); Road Transport (Vehicle Registration) Regulation 1998 (NSW); Sporting Injuries Insurance Act 1978 (NSW); Teaching Services Act 1980 (NSW); Transport Administration Act 1988 (NSW); Trustee Companies Act 1964 (NSW).
[62] Pursuant to s 26 of the Adoption Act 2000 (NSW), an adoption order can only be made in favour of one person or a couple. A couple is defined in the dictionary to be a man and a woman who are either married or in a de facto relationship. Step-parent is similarly limited to the married or heterosexual de facto partner of the birth parent. This issue is discussed in more detail in the second article from this project, in the August issue of this journal.
[63] See the second article in this series for a detailed explanation.
[64] Equal Opportunity Commission of Victoria, Same Sex Relationships and the Law, Discussion Paper (1997).
[65] Equal Opportunity Commission of Victoria, Same Sex Relationships and the Law, Report (1998).
[66] Equal Opportunity (Same Sex Relationships) Bill 1999 (Vic).
[67] For a discussion of the Victorian process, including the involvement of the Victorian Gay and Lesbian Rights Lobby, see: Miranda Stewart, 'It's a Queer Thing: Campaigning for Equality and Social Justice for Lesbians and Gay Men' [2004] AltLawJl 17; (2004) 29(2) Alternative Law Journal 75.
[68] Attorney-General's Advisory Committee on Gay, Lesbian and Transgender Issues, Victoria, Reducing Discrimination Against Same Sex Couples, Discussion Paper (2000).
[69] Acts amended by the Statute Law Amendment (Relationships) Act 2001 (Vic): Administration and Probate Act 1958 (Vic); Duties Act 2000 (Vic); First Home Owner Grant Act 2000 (Vic); Land Act 1958 (Vic); Land Acquisition and Compensation Act 1986 (Vic); Land Tax Act 1958 (Vic); Landlord and Tenant Act 1958 (Vic); Perpetuities and Accumulations Act 1968 (Vic); Property Law Act 1958 (Vic); Residential Tenancies Act 1997 (Vic); Retail Tenancies Reform Act 1998 (Vic); Sale of Land Act 1962 (Vic); Stamps Act 1958 (Vic); Wills Act 1997 (Vic); Accident Compensation Act 1985 (Vic); Education Act 1958 (Vic); Police Assistance Compensation Act 1968 (Vic); Transport Accident Act 1986 (Vic); Country Fire Authority Act 1958 (Vic); Emergency Services Superannuation Act 1986 (Vic); Parliamentary Salaries and Superannuation Act 1968 (Vic); State Employees Retirement Benefits Act 1979 (Vic); State Superannuation Act 1988 (Vic); Superannuation (Portability) Act 1989 (Vic); Transport Superannuation Act 1988 (Vic); Alcoholics and Drug-dependent Persons Act 1968 (Vic); Coroners Act 1985 (Vic); Health Records Act 2001 (Vic); Human Tissue Act 1982 (Vic); Mental Health Act 1986 (Vic); Crimes (Family Violence) Act 1987 (Vic); Victims of Crime Assistance Act 1996 (Vic); Co-operative Housing Societies Act 1958 (Vic); Goods Act 1958 (Vic); Motor Car Traders Act 1986 (Vic); Partnership Act 1958 (Vic); Prostitution Control Act 1994 (Vic); Retirement Villages Act 1986 (Vic); Second-Hand Dealers and Pawnbrokers Act 1989 (Vic); Trustee Companies Act 1984 (Vic); Equal Opportunity Act 1995 (Vic); Guardianship and Administration Act 1986 (Vic). Acts amended by the Statute Law Further Amendment (Relationships) Act 2001 (Vic): Architects Act 1991 (Vic); Children and Young Persons Act 1989 (Vic); Conservation, Forests and Lands Act 1987 (Vic); Corrections Act 1986 (Vic); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Discharged Servicemen's Preference Act 1943 (Vic); Estate Agents Act 1980 (Vic); Firearms Act 1996 (Vic); Meat Industry Act 1993 (Vic); Racing Act 1958 (Vic); Water Act 1989 (Vic); Witness Protection Act 1991 (Vic).
[70] Property Law Act 1958 (Vic) s 275(1).
[71] Property Law Act 1958 (Vic) s 275(2).
[72] Victoria, Parliamentary Debates, 23 November 2000, 1911–2 (Rob Hulls, Attorney-General).
[73] Property Law Act 1975 (Vic) s 275(1). Note that this is expressed so as not to include someone who provides 'domestic support and personal care' for fee or reward.
[74] The following acts were amended by the 2001 reforms: Alcoholics and Drug-dependent Persons Act 1968 (Vic); Coroners Act 1985 (Vic); Health Records Act 2001 (Vic); Human Tissue Act 1982 (Vic); Crimes (Family Violence) Act 1987 (Vic); Victims of Crime Assistance Act 1996 (Vic); Co-operative Housing Societies Act 1958 (Vic); Motor Car Traders Act 1986 (Vic); Partnership Act 1958 (Vic); Prostitution Control Act 1994 (Vic); Retirement Villages Act 1986 (Vic); Second-Hand Dealers and Pawnbrokers Act 1989 (Vic); Trustee Companies Act 1984 (Vic); Guardianship and Administration Act 1986 (Vic); Architects Act 1991 (Vic); Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Discharged Servicemen's Preference Act 1943 (Vic); Estate Agents Act 1980 (Vic); Firearms Act 1996 (Vic); Legal Practice Act 1996 (Vic); Meat Industry Act 1993 (Vic); Racing Act 1958 (Vic); Water Act 1989 (Vic); Witness Protection Act 1991 (Vic); Road Safety Act 1986 (Vic); Magistrates Court Act 1989 (Vic); Liquor Control Reform Act 1998 (Vic); Local Government Act 1989 (Vic); Wrongs Act 1958 (Vic); Fair Trading Act 1999 (Vic); Gambling Regulation Act 2003 (Vic); Health Services Act 1988 (Vic).
[75] Section 11(1) of the Adoption Act 1984 (Vic) sets out that an adoption order may only be made in favour of a man and a woman.
[76] Adoption Act 1984 (Vic) s 11(3).
[77] The reference was made on 11 October 2002. For terms of reference see Victorian Law Reform Commission <http://www.lawreform.vic.gov.au> at 13 December 2005.
[78] Victorian Law Reform Commission, Assisted Reproductive Technologies and Adoption, Position Paper Two: Parentage (2005), interim recommendations 26–7.
[79] Victorian Law Reform Commission, Assisted Reproduction & Adoption: Should the Current Eligibility Criteria in Victoria be Changed? Consultation Paper (2003).
[80] Ruth McNair, Outcomes for Children Born of ART in a Diverse Range of Families, Discussion Paper (2004); John Tobin, The Convention on the Rights of the Child: The Rights and Best Interests of Children Conceived Through Assisted Reproduction, Discussion Paper (2004); John Seymour, ART, Surrogacy and Legal Parentage: A Comparative Legislative Review, Discussion Paper (2004).
[81] Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption: Position Paper One: Access (2005), interim recommendations 11–15, at 19–22.
[82] Ibid interim recommendation 18.
[83] Queensland Law Reform Commission, De Facto Relationships, Report No 44 (1993); Queensland Law Reform Commission, Intestacy Rules, Report No 42 (1993).
[84] See Property Law Amendment Act 1999 (Qld) s 260.
[85] Industrial Relations Act 1999 (Qld) Pt 2 Div 3 grants various leave rights to parents and spouses.
[86] Domestic Violence (Family Protection) Amendment Act 1999 s 7 amending Domestic Violence (Family Protection Act) 1989 s 12.
[87] Industrial Relations Act 1999 (Qld) sch 5. This definition has since been removed.
[88] Domestic Violence (Family Protection) Amendment Act 1999 (Qld) s 7 amending Domestic and Family Violence Protection Act 1989 (Qld) s 12(1)(c). Further to this, s 12(1A) provides: 'For subsection (1)(c), 2 persons are a couple if they reside together in a relationship that is normally considered by the community to indicate that they are a couple.' Section 12(1B) adds: 'A relationship mentioned in subsection (1A) is one formed on the basis of intimacy, trust and personal commitment and does not include, for example, a relationship where the 2 persons are merely cotenants.' Section 12(1) was amended further by the Discrimination Law Amendment Act 2002 (Qld), discussed below in more detail.
[89] Property Law Amendment Act 1999 (Qld) s 7, amending Property Law Act 1974 (Qld) s 260(1) to insert the new definition contained in s 32DA(6) of the Acts Interpretation Act 1954 (Qld). This means that s 260(2) reflects s 12(1B) above but there is no equivalent of s 12(1A).
[90] Property Law Act 1974 (Qld) s 260(1). Similar wording was used to amend s 12(1)(c) of the Domestic and Family Violence Protection Act 1989 (Qld).
[91] Property Law Act 1974 (Qld) s 260(2)(a).
[92] Acts Interpretation Act 1954 (Qld); Anti-Discrimination Act 1991 (Qld); Guardianship and Administration Act 2000 (Qld); Judges (Pensions and Long Leave) Act 1957 (Qld); Land Tax Act 1915 (Qld); Property Law Act 1974 (Qld); Public Trustee Act 1978 (Qld); Succession Act 1981 (Qld); Supreme Court Act 1995 (Qld). Part 14 amends the Acts within the Schedule such that the following Acts take on the definition of s 32DA of the Acts Interpretation Act 1954 (Qld); Agricultural Chemicals Distribution Control Act 1966 (Qld); Ambulance Service Act 1991 (Qld); Anti-Discrimination Act 1991 (Qld); Burials Assistance Act 1965 (Qld); Child Care Act 2002 (Qld); Child Protection Act 1999 (Qld); Corrective Services Act 2000 (Qld); Criminal Code Domestic And Family Violence Protection Act 1989 (Qld); Duties Act 2001 (Qld); Education (Teacher Registration) Act 1988 (Qld); First Home Owner Grant Act 2000 (Qld); Fossicking Act 1994 (Qld); Health Services Act 1991 (Qld); Industrial Relations Act 1999 (Qld); Interactive Gambling (Player Protection) Act 1998 (Qld); Mental Health Act 2000 (Qld); Mobile Homes Act 1989 (Qld); Parliamentary Contributory Superannuation Act 1970 (Qld); Partnership Act 1891 (Qld); Property Agents And Motor Dealers Act 2000 (Qld); Property Law Act 1974 (Qld); Queensland Investment Corporation Act 1991 (Qld); Registration Of Births, Deaths And Marriages Act 1962 (Qld); Reprints Act 1992 (Qld); Residential Tenancies Act 1994 (Qld); Retirement Villages Act 1999 (Qld); South Bank Corporation Act 1989 (Qld); State Development And Public Works Organisation Act 1971 (Qld); State Housing Act 1945 (Qld); Succession Act 1981 (Qld); Superannuation (State Public Sector) Act 1990 (Qld); Supreme Court Of Queensland Act 1991 (Qld); Tourism Queensland Act 1979 (Qld); Transplantation and Anatomy Act 1979 (Qld); Water Act 2000 (Qld).
[93] By virtue of a new s 32DA(6) inserted into the Acts Interpretation Act 1954 (Qld).
[94] Acts Interpretation Act 1954 (Qld) s 32DA(1).
[95] See Millbank and Sant, 'A Bride in Her Everyday Clothes', above n 35.
[96] Acts Interpretation Act 1999 (Qld) s 32DA(2).
[97] See Explanatory Memorandum, Discrimination Law Amendment Bill 2002 (Qld) 3–4. The following Acts had previously not covered heterosexual de facto couples: Judges (Pensions and Long Leave) Act 1957 (Qld); Land Tax Act 1915 (Qld); Public Trustee Act 1978 (Qld); Supreme Court Act 1995 (Qld); Parliamentary Contributory Superannuation Act 1970 (Qld). These were all amended to include a two year cohabitation requirement. The Workcover Queensland Act 1996 (Qld) had previously covered heterosexual de facto couples with a one year cohabitation requirement, which the amendments extended to two years.
[98] Succession Act 1981 (Qld).
[99] See Adoption of Children Act 1964 (Qld) s 12(3).
[100] Local Government Act 1988 (UK) s 28, amending Local Government Act 1986 (UK) s 2A. This provision was repealed by s 122 of the Local Government Act 2003 (UK). For discussion of s 28, see: Davina Cooper, Sexing the City: Lesbian and Gay Politics Within the Activist State (1994); Matthew Waites, 'Regulation of Sexuality: Age of Consent, Section 28 and Sex Education' (2001) 54(3) Parliamentary Affairs 495.
[101] Law Reform (Decriminalization of Sodomy) Act 1989 (WA) s 23.
[102] Law Reform (Decriminalization of Sodomy) Act 1989 (WA) s 24.
[103] This issue was referred to by the Western Australian Attorney-General in his Second Reading Speech: Western Australia, Parliamentary Debates, Legislative Council, 14 November 2001, 6968 (Jim McGinty, Attorney-General).
[104] Ministerial Committee, Western Australia, Lesbian and Gay Law Reform (2001).
[105] On the issue generally, see Stephen Tomsen, 'Hatred, Murder and Male Honour: Gay Homicides and the "Homosexual Panic Defence"' (1994) 6(2) Criminology Australia 2; Stephen Tomsen, 'Sexual Identity and Victimhood in Gay-Hate Murder Trials' in Chris Cunneen, David Fraser and Stephen Tomsen (eds), Faces of Hate: Hate Crime in Australia (1997). The validity of this defence had been upheld by the High Court of Australia in Green v The Queen (1997) 191 CLR 334. See, eg: Adrian Howe, 'More Folk Provoke Their Own Demise: Homophobic Violence and Sexed Excuses — Rejoining the Provocation Law Debate, Courtesy of the Homosexual Violence Defence' [1997] SydLawRw 19; (1997) 19 Sydney Law Review 336; Graeme Coss, 'Lethal Violence by Men' (1996) 20 Criminal Law Journal 305.
[106] Legislation amended by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA): Administration Act 1903 (WA); Adoption Act 1994 (WA); Artificial Conception Act 1985 (WA); Births, Deaths and Marriages Registration Act 1998 (WA); Cremation Act 1929 (WA); The Criminal Code (WA); Equal Opportunity Act 1984 (WA); Family Court Act 1997 (WA); Guardianship and Administration Act 1990 (WA); Human Reproductive Technology Act 1991 (WA); Human Tissue and Transplant Act 1982 (WA); Inheritance (Family and Dependants Provision) Act 1972 (WA); Interpretation Act 1984 (WA); Law Reform (Decriminalization of Sodomy) Act 1989 (WA); Members of Parliament (Financial Interests) Act 1992 (WA); Parliamentary Superannuation Act 1970 (WA); Public Trustee Act 1941 (WA); State Superannuation Act 2000 (WA). Acts amended by the Acts Amendment (Equality of Status) Act 2003 (WA): Anatomy Act 1930 (WA); Anzac Day Act 1960 (WA); Bush Fires Act 1954 (WA); Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA); Companies (Co-operative) Act 1943 (WA); Construction Industry Portable Paid Long Service Leave Act 1985 (WA); Co-operative and Provident Societies Act 1903 (WA); Coroners Act 1996 (WA); Country Housing Act 1998 (WA); Credit Act 1984 (WA); The Criminal Code (WA); Criminal Injuries Compensation Act 1985 (WA); Criminal Investigation (Identifying People) Act 2002 (WA); Criminal Property Confiscation Act 2000 (WA); Curtin University of Technology Act 1966 (WA); District Court of Western Australia Act 1969 (WA); Electricity Corporation Act 1994 (WA); Family Court Act 1997 (WA); Fatal Accidents Act 1959 (WA); Firearms Act 1973 (WA); First Home Owner Grant Act 2000 (WA); Freedom of Information Act 1992 (WA); Gold Corporation Act 1987 (WA); Government Employees' Housing Act 1964 (WA); Health Act 1911 (WA); Health Services (Conciliation and Review) Act 1995 (WA); Hospital Fund Act 1930 (WA); Housing Act 1980 (WA); Housing Loan Guarantee Act 1957 (WA); Industrial Relations Act 1979 (WA); Inheritance (Family and Dependants Provision) Act 1972 (WA); Judges' Salaries and Pensions Act 1950 (WA); Land Tax Assessment Act 2002 (WA); Life Assurance Companies Act 1889 (WA); Liquor Licensing Act 1988 (WA); Local Courts Act 1904 (WA); Local Government Act 1995 (WA); Married Women's Property Act 1892 (WA); Medical Act 1894 (WA); Members of Parliament (Financial Interests) Act 1992 (WA); Mental Health Act 1996 (WA); Mine Workers' Relief Act 1932 (WA); Mine Workers' Relief (Payments Authorisation) Act 1940 (WA); Minimum Conditions of Employment Act 1993 (WA); Mining Act 1978 (WA); The Partnership Act 1895 (WA); Police Act 1892 (WA); Property Law Act 1969 (WA); Rates and Charges (Rebates and Deferments) Act 1992 (WA); Real Estate and Business Agents Act 1978 (WA); Retirement Villages Act 1992 (WA); Settlement Agents Act 1981 (WA); Solicitor-General Act 1969 (WA); Stamp Act 1921 (WA); Strata Titles Act 1985 (WA); Supreme Court Act 1935 (WA); Trustees Act 1962 (WA); Water Corporation Act 1995 (WA); Western Australian Aged Sailors, Soldiers and Airmen's Relief Fund Act 1932 (WA); Western Australian Land Authority Act 1992 (WA); Wills Act 1970 (WA); Workers' Compensation and Rehabilitation Act 1981 (WA).
[107] Interpretation Act 1984 (WA) s 13A(1).
[108] For discussion as to whether an under-age partner could be viewed by the courts as a de facto partner, see Owen Jessup, 'Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation' (Paper presented at the NSW Law Reform Commission Discussion Forum on Relationships and the Law, Sydney, 7 July 2000) [4.3] <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/seminar01.04> at 19 August 2005.
[109] Interpretation Act 1984 (WA) s 13A(2).
[110] Family Court Amendment Act 2002 (WA).
[111] Under the Family Court Act 1997 (WA) s 77, a parenting plan may also include child support provisions where a plan cannot be made under the Child Support (Assessment) Act 1989 (Cth). Under s 133 of the Family Court Act 1997 (WA), 'a person who is the parent of a child under section 6A of the Artificial Conception Act 1985' is liable to contribute towards child rearing expenses. Thus mothers who have a child together using assisted conception are equally liable for child raising costs under the regime, although only the birth mother would need to use the Family Court Act 1997 (WA) to gain support because the co-mother is not a liable parent under the Child Support (Assessment) Act 1989 (Cth).
[112] Adoption Act 1994 (WA) ss 38, 39(1)(e)(i).
[113] Section 4(b) of the Adoption Act 1994 (WA) defines step-parent to include the de facto partner of the birth or adoptive parent.
[114] Artificial Conception Act 1985 (WA) s 6A.
[115] The Births Deaths and Marriages Registration Act 1998 (WA) was amended by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) so that a female partner can be registered alongside the birth mother as a parent.
[116] See Western Australia, Parliamentary Debates, Legislative Assembly, 11 December 2001, 6914 (Colin Barnett, Leader of the Opposition). This was also a Western Australian Liberal policy in the 2005 state election: see Stacy Farrar, 'Gay Rights Rollback' Sydney Star Observer, 9 December 2004. As Labor won the 2005 election the issue is unlikely to arise for consideration before 2008. Interestingly the Liberals did not oppose the 2003 reforms on the basis that they were largely consequential to the 2002 Acts.
[117] Darwin Community Legal Service, Equality Before the Law: Gay and Lesbian Law Reform in the NT (2002).
[118] Ibid 11.
[119] De Facto Relationships Act 1991 (NT); Interpretation Act 1978 (NT); Status of Children Act 1979 (NT); Administrators Pensions Act 1981 (NT); Stamp Duty Act 1978 (NT); Supreme Court (Judges Pensions) Act 1980 (NT). Legislation amended by Schedule 1: Aboriginal Land Act 1978 (NT); Administration and Probate Act 1969 (NT); Adult Guardianship Act 1988 (NT); Aged and Infirm Persons' Property Act 1979 (NT); Agents Licensing Act 1979 (NT); Associations Act 2003 (NT); Births, Deaths And Marriage Registration Act 1996 (NT); Cemeteries Act 1952 (NT); Compensation (Fatal Injuries) Act 1974 (NT); Co-operatives Act 1997 (NT); Coroners Act 1993 (NT); Crimes (Victims Assistance) Act 1982 (NT); Criminal Property Forfeiture Act 2002 (NT); Domestic Violence Act 1992 (NT); Emergency Medical Operations Act 1973 (NT); Family Provision Act 1970 (NT); First Home Owner Grant Act 2000 (NT); Gaming Machine Act 1995 (NT); Human Tissue Transplant Act 1979 (NT); Juries Act 1963 (NT); Lands Acquisition Act 1979 (NT); Law Reform (Miscellaneous Provisions) Act 1956 (NT); Legal Practitioners Act 1974 (NT); Legal Practitioners (Incorporation) Act 1989 (NT); Legislative Assembly Members' Superannuation Act 1979 (NT); Legislative Assembly (Register of Members' Interests) Act 1982 (NT); Local Government Act 1993 (NT); Maintenance Act 1971 (NT); Meat Industries Act 1996 (NT); Medical Services Act 1982 (NT); Mental Health and Related Services Act 1998 (NT); Motor Accidents (Compensation) Act 1979 (NT); Northern Territory Electoral Act 1995 (NT); Partnership Act 1997 (NT); Pastoral Land Act 1992 (NT); Police Administration Act 1978 (NT); Prostitution Regulation Act 1992 (NT); Public Trustee Act 1979 (NT); Retirement Villages Act 1995 (NT); Superannuation Act 1986 (NT); Supreme Court (Judges Long Leave Payments) Act 1980 (NT); Swimming Pool Fencing Act 2002 (NT); Taxation (Administration) Act 1978 (NT); Territory Insurance Office Act 1979 (NT); Totalisator Licensing and Regulation Act 2000 (NT); Traffic Act 1987 (NT); Witness Protection (Northern Territory) Act 2002 (NT); Work Health Act 1986 (NT).
[120] Administrators Pensions Act 1981 (NT); Supreme Court (Judges Pensions) Act 1980 (NT).
[121] De Facto Relationships Act 1991 (NT) ss 3A(1), 3A(3).
[122] De Facto Relationships Act 1991 (NT) s 3A(2).
[123] Adoption Act 1994 (NT) s 14(1).
[124] Status of Children Act 1975 (NT) s 5DA(1).
[125] Compare Status of Children Act 1975 (NT) s 5B and Artificial Conception Act 1985 (WA) s 4.
[126] Acts Interpretation Act 1978 (NT) s 19A(4).
[127] Compensation (Fatal Injuries) Act 1974 (NT); Crimes (Victims Assistance) Act 1982 (NT); Family Provision Act 1970 (NT); Legislative Assembly Members' Superannuation Act 1979 (NT); Stamp Duty Act 1978 (NT); Taxation Administration Act 1978 (NT).
[128] Testator's Family Maintenance Act 1912 (Tas) s 2.
[129] See Rodney Croome, 'Relationship Law Reform in Tasmania' (2003) 7 Word is Out 1. However, note that the remarks on adoption do not reflect the final Act, which was far more restrictive.
[130] Significant Personal Relationships Bill 1998 (Tas).
[131] Joint Standing Committee on Community Development, Tasmania, Report on the Legal Recognition of Significant Relationships (2001) 6–7.
[132] Ibid 8.
[133] Ibid 49.
[134] Relationships Act 2003 (Tas) s 4(1).
[135] Relationships Act 2003 (Tas) s 4(3).
[136] Relationships Act 2003 (Tas) s 4(2).
[137] Relationships Act 2003 (Tas) s 13(1).
[138] Telephone communication with Tasmanian Registry of Births, Deaths and Marriages, 4 January 2006.
[139] The other difference is that registering a relationship, like entering a marriage, automatically revokes one's will: see Wills Act 1992 (Tas) s 20(2).
[140] Adoption Act 1988 (Tas) s 20(1).
[141] Adoption Act 1988 (Tas) s 20(2A).
[142] Adoption Act 1988 (Tas) s 24(1)(b).
[143] Tasmania Law Reform Institute, Adoption by Same Sex Couples, Final Report No 2 (2003), recommendations 1, 3.
[144] Although the amendment was about to be defeated in the lower house, it was voluntarily agreed to by the government on the basis that it would have jeopardised the Bill in the upper house: see Tasmania, Parliamentary Debates, Legislative Council, 28 August 2003 (Michael Aird, Leader of the Government in the Council).
[145] See Joint Standing Committee on Community Development, Tasmania, Report on Amendments to the Relationships (Consequential Amendments) Bill 2003 (2003), 12–13.
[146] Social Development Committee, South Australia, Statutes (Amendment) Relationships Bill 2004 (2005), 101.
[147] Relationships Act 2003 (Tas) s 5.
[148] See above section III A for a discussion of the NSW provisions.
[149] Relationships Act 2003 (Tas) s 5(5).
[150] Unregistered caring relationships are only recognised in five Acts and regulations: Criminal Justice (Mental Impairment) Act 1999 (Tas); Motor Accidents (Liabilities & Compensation) Regulations 2000 (Tas); State Service Regulations 2001 (Tas); War Service Land Settlement Act 1950 (Tas); Workers' (Occupational Diseases) Relief Fund Act 1954 (Tas).
[151] Registered caring relationships are recognised in 16 Acts and regulations: Probate Rules 1936 (Tas); Administration and Probate Act 1935 (Tas); Burial and Cremation (Cremation) Regulations 2002
(Tas); Coroners Act 1995
(Tas); Criminal Justice (Mental Impairment) Act 1999
(Tas); Duties Act 2001
(Tas); Environmental Management and Pollution Control Act 1994
(Tas); Land Tax Act 2000 (Tas); Motor Accidents (Liabilities & Compensation) Regulations 2000 (Tas); Partnership Act 1891
(Tas); Retirement Benefits Regulations 1994
(Tas); Retirement Benefits (Parliamentary Superannuation) Regulations 2002
(Tas); State Service Regulations 2001
(Tas); War Service Land Settlement Act 1950
(Tas); Workers' (Occupational Diseases) Relief Fund Act 1954
(Tas); Workers' Compensation and Rehabilitation Act 1988 (Tas).
[152] Relationships Act 2003 (Tas) s 11(3).
[153] Relationships Act 2003 (Tas) s 12. It is very unclear why this provision was included. Nothing in the earlier Bill or reports suggested such an approach and no explanation is offered in the explanatory memorandum or second reading speech.
[154] Telephone communication, Tasmanian Registry of Births, Deaths and Marriages, 4 January 2006.
[155] See Domestic Relationships Act 1994 (ACT) s 3(1). The 2003 amendments changed this definition to:
domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage.
[156] See Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 21 April 1994, 1119 (Terry Connolly, Attorney-General and Minister for Health). For a discussion of the operation of the Act see Jenni Millbank, 'Domestic Rifts: Who is using the Domestic Relationships Act 1994 (ACT)?' (2000) 14 Australian Journal of Family Law 163.
[157] See Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 19 May 1994, 1800 (Gary Humphries).
[158] Administration and Probate Act 1929 (ACT) s 44 and Family Provision Act 1969 (ACT) s 4. These definitions were again changed by the 2004 reforms, to drop the wording 'whether or not of the same gender'.
[159] Jon Stanhope, 'Foreword' to Gay, Lesbian, Bisexual, Transgender and Intersex People in the ACT: An Issues Paper (2002) ACT Department of Justice and Community Safety <http://www.jcs.act.gov.au/eLibrary/papers/same_sex_%20issues_paper.pdf
> at 14 December 2005. There was also a motion put to the Legislative Assembly by Australian Democrats member, Roslyn Dundas on 28 August 2002 calling for a broad range of issues to be considered and community participation in the process. The motion was passed with amendments to acknowledge the work underway: see Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 28 August 2002, 2982–95 (Roslyn Dundas, MLA).
[160] Jon Stanhope, above n 159.
[161] Gay, Lesbian, Bisexual, Transgender and Intersex People in the ACT: Government Report to the ACT Legislative Assembly (2003).
[162] Legislation Act 2001 (ACT) s 169(2).
[163] Legislation Act 2001 (ACT) s 169(2).
[164] Adoption Act 1993 (ACT) s 18.
[165] Parentage Act 2004 (ACT) s 51.
[166] Parentage Act 2004 (ACT) s 120.
[167] See Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 11 March 2003, 839 (Brendan Smyth, Leader of the Opposition).
[168] Jon Stanhope, above n 159, 4.
[169] Australian Capital Territory Department of Justice and Community Safety, The Recognition of Same Sex Relationships in the ACT (2005) <http://www.jcs.act.gov.au/eLibrary/papers/ RecognitionofSameSexRelationships-discussionpaper.pdf
> at 14 December 2005.
[170] Civil Unions Bill 2006 (ACT), introduced to the Legislative Assembly on 28 March 2006.
[171] Let's Get Equal, Position Statement: Legal Recognition of Same Sex Relationships in South Australia (2001) <http://www.letsgetequal.org.au/LetsGetEqual_PositionStatem.pdf> at 28 March 2006.
[172] For a discussion of the South Australian process, see Matthew Loader, 'Recognising Same Sex Relationships: Ideas and an Update from South Australia' (2003) 7 Word is Out 8-18.
[173] Statutes Amendment (Equal Superannuation Entitlements for Same Sex Couples) Act 2003 (SA) s 7A.
[174] Attorney-General's Department of South Australia, Removing Legislative Discrimination Against Same-Sex Couples: Discussion Paper (2003). Principally, the paper asked for comment on 'any financial, legal or other implications that should be taken into account in removing discrimination against same-sex partners' in various areas. It also raised the question of what language should be used to refer to couples and the issue of access to reproductive services.
[175] Statutes Amendment Relationships Bill 2004 (SA) s 72, proposing amendment to the definition of de facto within the Family Relationships Act 1975 (SA).
[176] Statutes Amendment (Relationships) Bill 2004 (SA) s 11A(1)(a).
[177] See, eg, Statutes Amendment (Relationships) Bill 2004 (SA) s 66(2), proposing amendment to the definition of 'domestic partner' in the Domestic Violence Act 1994 (SA) s 3 to include a spouse or de facto partner.
[178] Social Development Committee, South Australia, Statutes (Amendment) Relationships Bill 2004 (2005) 5, recommendation 1.1.
[179] Ibid recommendation 2.
[180] Ibid recommendation 4. The principal South Australian gay and lesbian group has urged such recognition: see Let's Get Equal, Position Statement (2001) <http://www.letsgetequal.org.au/LetsGetEqual_PositionStatem.pdf> at 24 August 2005; and Let's Get Equal, Removing Legislative Discrimination Against Same-Sex Couples: Submission by the Let's Get Equal Campaign (2003) 12, <http://www.letsgetequal. org.au/LGESubmissionV3.pdf> at 24 August 2005. Non-government members also urged such recognition in their dissenting report: see Social Development Committee, South Australia, above n 147, 177. However note that conservative supporters of non-couple recognition tend to value it instead of, or above, recognition of same-sex couple relationships: see Social Development Committee, South Australia, Statutes (Amendment) Relationships Bill 2004 (2005) 78–9.
[181] Among other things, the dissenting report recommended the reintroduction of the term 'putative spouse': Social Development Committee, South Australia, above n 147, 179.
[182] See 'FAQs about the Relationships Bill' <http://www.sa.liberal.org.au/brindal/ content/files/documents/Relationships%20Attachment%201.doc> at 14 December 2005.
[183] Relationships Bill 2005 (SA).
[184] Statutes Amendment (Relationships No 2) Bill 2005 (SA).
[185] Statutes Amendment (Relationships No 2) Bill 2005 (SA) s 72 (4). A certified property agreement requires only that each party make a full disclosure of assets to each other and each party's signature to be attested by a lawyers' certificate: s 72(1). A relationship of dependence is defined in the same terms as a close personal relationship in NSW law, with the exception that it requires 'domestic support or personal care' rather than 'and' personal care: see s 72(5).
[186] Another issue is that parties could certify an agreement but not in fact be dependent on each other, in which case it is unclear whether or not they meet the definition in the Bill: see Statutes Amendment (Relationships No 2) Bill 2005 (SA) s 72(5).
[187] Hansard records from the last day of sitting reveal vigorous debate as to why the Bill had not yet been read a second time, with the government asserting that the opposition had deliberately impeded its process: see South Australia, Parliamentary Debates, Legislative Assembly, 1 December 2005, 4335 (Patrick Conlon, Minister for Transport).
[188] Superannuation Act 1976 (Cth) Part VI, specifically s 81, s 89. For a more detailed analysis of the operation of these provisions and their inter-relation with taxation law see Miranda Stewart, 'Superannuation, Same-Sex Couples and Interdependency: Between Equality, Property and Family' (2006) 28 (3) Sydney Law Review, forthcoming.
[189] See Brown v Commissioner for Superannuation [1995] AATA 130; (1995) 21 AAR 378.
[190] See, eg, Human Rights and Equal Opportunity Commission, Superannuation Entitlements of Same-Sex Couples: Report of Examination of Federal Legislation (1999); Gay and Lesbian Rights Lobby, 'Time to Act on Super Reforms' <http://www.glrl.org.au/OLD/html/Superannuation.htm> at 12 August 2005.
[191] Labor MP Anthony Albanese introduced the Superannuation (Entitlements of Same Sex Couples) Bill into the house on five different occasions, in 1998, 1999, 2000, 2001 and 2004. In April 2000 a majority of the Senate Select Committee on Superannuation and Financial Services recommended that the Bill be passed.
[192] For example, the Association of Superannuation Funds of Australia has made numerous submissions on the issue.
[193] For example, see Bush, above n 31.
[194] Furthermore, Stewart notes that some federal employee schemes remain excluded from the reforms, and the reforms are limited in that they do not address the children of same-sex couples: Stewart, above n 189.
[195] Superannuation Industry (Supervision) Act 1993 (Cth) s 10. Note also that extension of employment benefits to same-sex couples in the Australian defence forces in late 2005 was achieved through an internal directive creating a new category of 'interdependent relationships': see Saffron Howden, 'Rights for Gay Troops' Herald-Sun, 22 October 2005,.
[196] Superannuation Industry (Supervision) Act 1993 (Cth) s 10A(1).
[197] Superannuation Industry (Supervision) Act 1993 (Cth) s 10A(2).
[198] Under the Property (Relationships) Act 1984 (NSW), the non-couple relationship known as a 'close personal relationship' is defined in s 5(1)(b), (2). This section was interpreted in Dridi v Fillmore [2001] NSWSC 319 at [108] where Master Macready held that 'domestic support and personal care' were a cumulative requirement. The Master further held that personal care entailed caregiving beyond that in ordinary reciprocal relationships; requiring 'assistance with mobility, personal hygiene and physical care'.
[199] See reg 1.09A(2) of the Migration Regulations 1994 (Cth) for the definition of interdependent relationship. See, eg: ABCDEAV [2004] MRTA 203; Lewis (Bryan Francis) [2003] MRTA 5630 and Parker (Sarah) [2004] MRTA 2545.
[200] Note the remark by Liberal MP Ross Cameron that 'the provision is not specifically directed towards same-sex couples. It relates to a concept of interdependence which will specifically benefit for example carers of children with profound disabilities or even perhaps members – elderly sisters who may live together in an interdependent relationship' quoted in Bush, above n 31.
[201] In ATO Interpretive Decision ID 2005/143, a son who undertook heavy lifting and buying groceries was held to satisfy the 'domestic support and personal care' requirement: see Stewart, above n 188.
[202] Beneficiaries must pay income tax on distributions from the deceased estate. See Australian Taxation Office, Managing the Tax Affairs of Someone Who has Died: Tax Obligations of Beneficiaries (2005) <http://www.ato.gov.au/individuals/content.asp?doc=/content/ 31669.htm & page=5 & H5> at 24 August 2005.
[203] See Miranda Stewart, 'Domesticating Tax Reform: The Family in Australian Tax and Transfer Law' [1999] SydLawRw 18; (1999) 21 Sydney Law Review 453.
[204] Ibid 461. See, eg, comment by John Howard: 'when we restructure the tax system, families, dependent children, will be big winners…it has been one of my policy goals in public life to improve the tax system to give greater recognition to Australian parents': ABC Radio National, 16 March 1998.
[205] Income Tax Assessment Act 1936 (Cth) s 159.
[206] Income Tax Assessment Act 1936 (Cth) s 159.
[207] Income Tax Assessment Act 1936 (Cth) s 159T.
[208] Income Tax Assessment Act 1936 (Cth) s 159P.
[209] Income Tax Assessment Act 1997 (Cth) sub-div 61G, sub-div 61H.
[210] Income Tax Assessment Act 1936 (Cth) s 160AAAA, s 160AAA. For information about which pensions qualify for the rebate, see Australian Taxation Office, Pensioner Tax Offset: What Pensions Qualify? (2005) <http://www.ato.gov.au/individuals/content.asp?doc=/ Content/19732.htm & page=2 & H2> at 13 December 2005. Any unused portion of the tax offset can be transferred between spouses.
[211] Medicare Levy Act 1986 (Cth) s 3A. See also Australian Taxation Office, Medicare Levy Surcharge: What are the Income Thresholds? (2005) <http://www.ato.gov.au/individuals/ content.asp?doc=/content/mls_booklet.htm & page=8 & H8> at 24 August 2005.
[212] Social Security Act 1991 (Cth) s 771HA(1).
[213] Social Security Act 1991 (Cth) s 147 (wife pension), s 362 (widow class B pension).
[214] Social Security Act 1991 (Cth) s 315.
[215] Under the Social Security Act 1991 (Cth) s 4(1), a person is a member of a couple if the person is 'legally married to another person' and not 'living separately and apart from the other person on a permanent or indefinite basis'. Alternatively, a person need not be married to their partner to be a member of a couple, but their partner must be of the opposite sex.
[216] Young v Australia [2003] Communication No 941/2000 (18 September 2003). The case was also important as it was the first time that the Committee had held that the substantive guarantee of equality under Article 26 of the ICCPR extends to lesbians and gay men who are covered under 'other status'. This question had been left undecided in the previous cases of Toonen v Australia [1994] Communication No 488/1992 (4 April 1994) and Joslin v New Zealand [2002] Communication No 902/1999 (30 July 2002).
[217] Contrast the research papers undertaken to inform the relationship reference of the Law Commission of Canada: Claire Young, 'What's Sex Got to Do With it? Tax and the "Family"', (2000) Law Commission of Canada <http://www.lcc.gc.ca/research project/cpra/publications-en.asp#rp> at 8 March 2006; Kathleen Lahey, 'The Benefit/Penalty Unit in Income Tax Policy: Diversity and Reform' (2000) Law Commission of Canada <http://www.lcc.gc.ca/research_project/cpra/publications-en.asp#rp> at 8 March 2006.
[218] Note that there was for a brief period a cross-vesting scheme by which the Family Court could exercise state jurisdiction. However this was struck down by the High Court in Re Wakim (1999) 198 CLR 511. See Dorothy Kovacs, 'After the Fall: Recovering Property Jurisdiction in the Family Court in the Post Cross-vesting Era' (2001) 25 Melbourne University Law Review 3, 69–70.
[219] Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA). Of particular note is the Family Court Act 1997 (WA) div 8 sub-div 2.
[220] Note that it was seen as important at the time that heterosexual de facto recognition was first introduced not to grant the same property rights to those who 'chose' not to marry: see New South Wales Law Reform Commission, De Facto Relationships, Report 36 (1983).
[221] Family Law Act 1975 (Cth) Part VIIIB.
[222] Commonwealth Powers (De Facto Relationships) Act 2003 (NSW).
[223] Commonwealth Powers (De Facto Relationships) Act 2003 (Qld).
[224] Commonwealth Powers (De Facto Relationships) Act 2004 (Vic).
[225] De Facto Relationships (Northern Territory Request) Act 2003 (NT).
[226] The Family Court of West Australia has the power to take superannuation assets into account as property, but cannot divide funds for de facto couples. It thus passed a limited referral of power in 2005, covering only the power to divide superannuation funds for de facto couples. The referral includes heterosexual and same-sex couples separately so that a later federal government may take up the same-sex referral: see Commonwealth Powers (De Facto Relationships) Act 2005 (WA).
[227] Above n 221–224, s 3.
[228] 'State Attorneys-General have all agreed that if state power over de facto property disputes is to be referred to the Commonwealth it should include all power in relation to de factos under state legislation, including same-sex de factos': Queensland, Parliamentary Debates, Legislative Assembly, 9 September 2003, 3274 (Rod Welford, Attorney-General and Minister for Justice); Northern Territory, Parliamentary Debates, Legislative Assembly, 7 October 2004, 5366 (Peter Toyne, Attorney-General and Minister for Justice); New South Wales, Parliamentary Debates, Legislative Assembly, 5 September 2003, 3236 (Neville Newell, Parliamentary Secretary); Victoria, Parliamentary Debates, Legislative Assembly, 14 October 2004, 1059 (Rob Hulls, Attorney-General).
[229] In 2003–4 an estimated 63,300 people on skilled employment visas came to Australia: Department of Immigration and Multicultural Affairs, Migration Program Statistics (2004).
[230] See, eg, 'Gay Ban Bad for GP Shortage' Sydney Morning Herald, 11 June 2005, 9, reporting that three overseas doctors offered positions in 2005 could not take them as their same-sex partners were refused family visas.
[231] 'Migration Shift on Same-Sex Partners' Daily Telegraph (Sydney) 6 March 2006. It is not clear whether this category will define same-sex couples as de facto couples, or, like other recent federal reforms, as 'dependants'.
[232] Of the 32,354 partner visas granted in 2003–4, 26,681 were spouse visas, 5,034 were prospective marriage visas and 639 were interdependency visas: see Department of Immigration and Multicultural and Indigenous Affairs, Population Flows: Immigration Aspects 2003–04 Edition (2005) 26.
[233] See above n 199.
[234] Tasmania was the last state in Australia to repeal criminal prohibitions on gay sex in 1997, and Western Australia maintained a widely unequal age of consent for gay sex until 2001.
[235] See Kees Waaldijk, 'How the Road to Same-Sex Marriage Got Paved in the Netherlands' in Robert Wintemute and Mads Andenaes (eds) The Legal Recognition of Same-Sex Partnerships (2001).
[236] Ibid 439–42.
[237] See Robert Wintemute, 'Conclusion' in Wintemute and Andenaes, above n 235.
[238] Note that NSW does have an ongoing law reform reference begun in 1999, but thus far none of the reforms passed have been generated by it.
[239] Mair v Hastings [2002] NSWSC 522, (Unreported, Master Macready, 31 May 2002) [50]. There are examples in other NSW cases of judges appearing insensitive to the realities of gay and lesbian life, for instance by holding it against the credit of a gay man that he was not prepared to answer, in open court, questions about whether his former partner had died of AIDS, and that in filling out a government application for an interdependency visa for his present partner, he had not disclosed that they met through an escort agency: Dridi v Fillmore [2001] NSWSC 319 at [77]. It did not seem to occur to the judge that a gay person in that situation would be exposing themselves to the considerable risk of discrimination by responding truthfully, and that a lack of candour in such circumstances might be reasonable.
[240] See discussion of equality jurisprudence and civil unions in: Reference re Same-Sex Marriage [2004] 3 SCR 698; Opinion of the Justices to the Senate 802 N E 2d 565 (2004); Minister for Home Affairs & Anor v Fourie and Anor [2005] ZACC 7 (1 December 2005).