Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (2) to (6), (8) to (11), (13), (14), (16) to (23), (25), (26), (28) to (36), (38), (40), (42) to (48), (50), (52) to (55), (58) to (61), (64), (65), (68) to (70), (72) to (75), (78), (79), (81), (82) (85) to (87), and (90) to (110) on sheet QH401:

(2)    Clause 2, page 3 (table item 17), omit the table item.

(3)    Clause 2, pages 3 and 4 (table item 18), omit the table item.

(4)    Clause 2, page 4 (table item 19), omit the table item.

(5)    Clause 2, page 4 (table item 20), omit the table item.

(6)    Clause 2, page 4 (table item 21), omit the table item.

(8)    Schedule 2, item 4, page 10 (lines 23 to 30), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of paragraph (a) of the definition of near relative in this subsection, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(9)    Schedule 2, item 9, page 12 (lines 2 to 8), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(10)  Schedule 2, item 11, page 12 (lines 19 to 25), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(11)  Schedule 2, item 34, page 15 (lines 7 to 13), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(13)  Schedule 2, item 41, page 17 (lines 19 to 25), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(14)  Schedule 2, item 43, page 18 (lines 5 to 11), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(16)  Schedule 2, item 61, page 21 (lines 24 to 30), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(17)  Schedule 2, item 67, page 22 (line 27) to page 23 (line 2), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(18)  Schedule 2, item 73, page 23 (lines 24 to 30), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(19)  Schedule 2, item 76, page 24 (lines 25 to 31), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(20)  Schedule 2, item 85, page 27 (line 31) to page 28 (line 2), omit the definition of parent, substitute:

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.

(21)  Schedule 3, item 2, page 30 (lines 23 to 28), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(22)  Schedule 3, item 6, page 31 (lines 9 to 15), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(23)  Schedule 3, item 12, page 32 (lines 17 to 24), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of Part 2A and this Schedule, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(25)  Schedule 4, item 2, page 35 (lines 13 to 15), omit subparagraph (a)(ii) of the definition of child, substitute:

                  (ii)    a child of the person within the meaning of the Family Law Act 1975; and

(26)  Schedule 4, item 2, page 35 (line 19), omit the note.

(28)  Schedule 4, item 47, page 41 (lines 14 to 20), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of subsection (3), someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(29)  Schedule 4, item 51, page 42 (lines 22 to 29), omit the definition of parent, substitute:

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.

(30)  Schedule 5, item 2, page 44 (lines 11 to 17), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(31)  Schedule 5, item 9, page 45 (line 31) to page 46 (line 4), omit subclause (3) of Schedule 1, substitute:

        (3)    For the purposes of paragraph (2)(b), one person is the child of another person because of this subclause if he or she is a child of the other person within the meaning of the Family Law Act 1975.

(32)  Schedule 5, item 11, page 46 (lines 15 to 21), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(33)  Schedule 5, item 27, page 49 (lines 17 to 23), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(34)  Schedule 5, item 40, page 52 (lines 10 to 16), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(35)  Schedule 6, item 1, page 53 (lines 9 to 15), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(36)  Schedule 6, item 7, page 54 (lines 24 to 30), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(38)  Schedule 6, item 18, page 57 (lines 8 to 13), omit subsection 23(6), substitute:

        (6)    If a child (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the child’s only parents for the purposes of paragraph (c) of the definition of qualifying period in subsection (5).

(40)  Schedule 6, item 35, page 59 (lines 24 to 30), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(42)  Schedule 6, item 68, page 64 (line 30) to page 65 (line 2), omit subsection 993(3), substitute:

        (3)    If a young person (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the young person’s only parents for the purposes of this section.

(43)  Schedule 6, item 70, page 65 (lines 7 to 11), omit subsection 994(2), substitute:

        (2)    If a young person (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the young person’s only parents for the purposes of this section.

(44)  Schedule 6, item 71, page 65 (lines 14 to 18), omit subsection 995(3), substitute:

        (3)    If a young person (other than an adopted child) is a relationship child of a person because he or she is a child of the person, and of another person, within the meaning of the Family Law Act 1975, the person and the other person are taken to be the young person’s only parents for the purposes of this section.

(45)  Schedule 6, item 73, page 65 (lines 25 to 30), omit subsection 1061PL(8), substitute:

        (8)    If a person (other than a person who is an adopted child) is a relationship child of another person because he or she is a child of the other person, and of a third person, within the meaning of the Family Law Act 1975, the other person and the third person are taken to be the person’s only parents for the purposes of subsections (3), (4), (5), (6) and (7).

(46)  Schedule 6, item 85, page 67 (lines 3 to 8), omit subsection 1067A(13), substitute:

      (13)    If a person (other than a person who is an adopted child) is a relationship child of another person because he or she is a child of the other person, and of a third person, within the meaning of the Family Law Act 1975, the other person and the third person are taken to be the person’s only parents for the purposes of subsections (5), (6), (7), (8), (9) and (11).

(47)  Schedule 6, item 88, page 67 (lines 16 to 20), omit subsection 1067B(2), substitute:

        (2)    If a person (other than a person who is an adopted child) is a relationship child of another person because he or she is a child of the other person, and of a third person, within the meaning of the Family Law Act 1975, the other person and the third person are taken to be the person’s only parents for the purposes of paragraph (1)(b).

(48)  Schedule 6, item 101, page 69 (lines 10 to 14), omit subsection 1067D(4), substitute:

        (4)    If a person (other than a person who is an adopted child) is a relationship child of another person because he or she is a child of the other person, and of a third person, within the meaning of the Family Law Act 1975, the other person and the third person are taken to be the person’s only parents for the purposes of paragraph (1)(b).

(50)  Schedule 6, item 110, page 70 (lines 14 to 18), omit subsection 1067J(2), substitute:

        (2)    If a person (other than a person who is an adopted child) is a relationship child of another person because he or she is a child of the other person, and of a third person, within the meaning of the Family Law Act 1975, the other person and the third person are taken to be the person’s only parents for the purposes of subsection (1).

(52)  Schedule 6, item 125, page 72 (lines 5 to 11), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(53)  Schedule 6, item 127, page 72 (lines 23 to 29), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the beneficiary within the meaning of the Family Law Act 1975.”.

(54)  Schedule 7, item 1, page 73 (lines 7 to 12), omit all the words from and including “who is the product” to and including “relationship.”, substitute “of the person within the meaning of the Family Law Act 1975.”.

(55)  Schedule 7, item 9, page 74 (lines 22 to 28), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Part, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(58)  Schedule 7, heading to Part 2, page 85 (line 2), omit the heading, substitute:

Part 2—Superannuation amendments

(59)  Schedule 7, page 85 (after line 6), after item 53, insert:

53A  At the end of section 51

Add:

        (7)    The reference in paragraph (6)(a) to the birth of a child of the person includes a reference to the birth of a child who is a child of the person within the meaning of the Family Law Act 1975.

(60)  Schedule 7, page 85 (after line 9), after item 54, insert:

54A  At the end of section 51A

Add:

        (8)    The reference in subparagraph (1)(b)(i) to the birth of a child of a person includes a reference to the birth of a child who is a child of the person within the meaning of the Family Law Act 1975.

(61)  Schedule 7, item 55, page 85 (line 13), omit “(whether Part 2, 3 or 4)”.

(64)  Schedule 8, item 7, page 90 (lines 23 to 30), omit the definition of child, substitute:

child: without limiting who is a child of an individual for the purposes of this Act, someone is the child of an individual if he or she is a child of the individual within the meaning of the Family Law Act 1975.

(65)  Schedule 8, item 14, page 92 (lines 12 to 18), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(68)  Schedule 9, item 8, page 95 (lines 20 to 22), omit paragraph (b) of the definition of child, substitute:

             (b)    someone who is a child of the person within the meaning of the Family Law Act 1975.

(69)  Schedule 9, item 8, page 95 (lines 23 to 25), omit the note.

(70)  Schedule 9, item 14, page 96 (lines 16 to 21), omit the definition of parent (including the note), substitute:

parent: without limiting who is a parent of a child for the purposes of this Part, a person is the parent of a child if the child is a child of the person within the meaning of the Family Law Act 1975.

(72)  Schedule 9, item 19, page 97 (lines 23 to 25), omit paragraph (c) of the definition of parent, substitute:

             (c)    the child is a child of the person within the meaning of the Family Law Act 1975.

(73)  Schedule 9, item 19, page 97 (lines 26 to 28), omit the note.

(74)  Schedule 9, item 21, page 98 (lines 8 to 10), omit paragraph 84(3B)(c), substitute:

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975.

(75)  Schedule 9, item 21, page 98 (lines 11 and 12), omit the note.

(78)  Schedule 9, item 30, page 101 (lines 12 to 14), omit paragraph (c) of the definition of child, substitute:

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975;

(79)  Schedule 9, item 30, page 101 (lines 18 to 21), omit all the words from and including “For the purposes” to and including “relationship.”.

(81)  Schedule 10, item 1, page 104 (lines 9 to 15), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(82)  Schedule 10, item 7, page 105 (lines 7 to 18), omit section 8, 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.

(85)  Schedule 10, item 79, page 120 (lines 6 to 13), omit the definition of parent, substitute:

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.

(86)  Schedule 11, item 3, page 122 (lines 7 to 13), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(87)  Schedule 11, item 8, page 124 (lines 7 to 13), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(90)  Schedule 11, item 16, page 126 (lines 8 to 15), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of Part 3 and this Schedule, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(91)  Schedule 11, item 23, page 129 (lines 4 to 10), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(92)  Schedule 12, item 4, page 133 (lines 16 to 22), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(93)  Schedule 13, item 1, page 135 (lines 20 to 26), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of subsection (10), someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(94)  Schedule 13, item 3, page 136 (lines 3 to 9), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the individual within the meaning of the Family Law Act 1975.”.

(95)  Schedule 14, item 91, page 152 (lines 9 to 15), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the individual within the meaning of the Family Law Act 1975.”.

(96)  Schedule 14, item 98, page 154 (lines 8 to 14), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(97)  Schedule 14, item 110, page 157 (lines 6 to 12), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(98)  Schedule 14, item 113, page 158 (lines 16 to 22), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(99)  Schedule 14, item 125, page 160 (lines 15 to 21), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(100)       Schedule 14, item 130, page 162 (lines 6 to 12), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(101)       Schedule 15, item 6, page 165 (lines 23 to 30), omit the definition of parent, substitute:

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.

(102)       Schedule 15, item 34, page 168 (lines 21 to 27), omit the definition of child, substitute:

child: without limiting who is a child of a person for the purposes of this Act, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

(103)       Schedule 15, item 68, page 175 (lines 3 to 8), omit subsection 5Q(5), substitute:

        (5)    For the purposes of this Act, if under a provision of this Act one person is the child of another person because the person is a child of the other person within the meaning of the Family Law Act 1975, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

(104)       Schedule 15, item 68, page 175 (lines 9 to 13), omit the note, substitute:

Note:   Paragraph 10(1)(b) and paragraph (b) of the definition of child in section 52ZO are examples of provisions under which one person may be the child of another person because the person is a child of the other person within the meaning of the Family Law Act 1975.

(105)       Schedule 15, item 70, page 175 (lines 26 to 28), omit paragraph 10(1)(b), substitute:

             (b)    a child who is a child of the veteran within the meaning of the Family Law Act 1975; or

(106)       Schedule 15, item 70, page 175 (lines 32 to 35), omit subsection 10(2).

(107)       Schedule 15, item 73, page 176 (lines 8 to 15), omit subsection 10A(1), substitute:

        (1)    Without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person (other than an adopted child) if the other person is a child of the person within the meaning of the Family Law Act 1975.

(108)       Schedule 15, item 90, page 178 (lines 6 to 12), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(109)       Schedule 15, item 92, page 178 (lines 24 to 30), omit all the words from and including “is the product” to and including “relationship.”, substitute “is a child of the person within the meaning of the Family Law Act 1975.”.

(110)   

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I indicate that the opposition welcomes these amendments and other government amendments that are to be moved subsequently in the committee stage. I will not detain the Senate for long, but these amendments in their various forms are responsive to the report of the Senate Standing Committee on Legal and Constitutional Affairs, which inquired into the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 and related bills and reported in October 2008. They are, in particular, responsive to additional comments made by the Liberal senators who served on that committee—Senator Guy Barnett, the deputy chair, Senator Mary Jo Fisher and Senator Russell Trood—which appear at page 41 and following pages of the report of that committee. We welcome the government’s acknowledgement that the legislation in its original form could be improved by amendments of the kind recommended by the Senate committee. For that reason, the opposition will be supporting those amendments.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I apologise to the chamber. I thought I had spoken to these amendments previously, but I gathered from the silence that I had not. In essence, the government amendments remove references to ‘the product of the relationship’ in definitions of child and parent in the bill and will instead refer to ‘a child of the person within the meaning of the Family Law Act’. As Senator Brandis has indicated, the amendments implement a recommendation of the Senate Standing Committee on Legal and Constitutional Affairs.

The amendments I have outlined also insert a revised section in the Australian Citizenship Act to provide for recognition of children born to same- and opposite-sex couples as a result of artificial conception procedures and surrogacy arrangements. A number of other technical amendments are made as a consequence of the removal of ‘the product of a relationship’ in the definition of a child.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would firstly like to indicate the Greens support for the government amendments, but I also have a question to put to the minister if I could. In the Senate committee’s recommendation (3), the committee recommends:

... that the Government give further consideration to what administrative or regulatory mechanisms may be available to appropriately manage the impact of the reforms on same-sex couples who may have benefits reduced under the changes.

The last time we were discussing this bill, if you remember, the Greens moved an amendment which was not passed—and I accept that. I just wanted to know what the minister’s response to how we manage the possible negative ramifications for people, at least in the initial period, may be to any benefits that may change. I have read out the recommendation from the committee but, if the minister could please elaborate on how the government would deal with these impacts, that would be wonderful.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I think I did go to these issues in the summing up on the second reading and made reference to a couple of issues. I think there was a discussion about a transitional commencement date other than 1 July, and I think I may have indicated the reasons for that. My recollection also is that I discussed what Commonwealth agencies have been asked to do in terms of communicating these changes to the gay and lesbian community.

I also would make the point that the changes to social security and family assistance entitlements—which are, I suppose, the ones that do spring to mind when you consider the changes that may create a financial disbenefit from what currently exists for some couples—will not commence until 1 July 2009. So we obviously have a period of time for same-sex couples to be advised and to plan their affairs accordingly. Again, I would make the point that reforms which benefit same-sex couples commence earlier than those—social security changes, for example. The majority of amendments, including amendments to the Australian government superannuation schemes, would commence after passage, and amendments to the Medicare and PBS safety nets would commence on 1 January 2009.

Question agreed to.

The government opposes schedule 4, schedule 7 and schedule 9 and schedule 15 in the following terms:

(24)  Schedule 4, item 1, page 35 (lines 5 and 6), to be opposed.

(27)  Schedule 4, item 9, page 36 (lines 12 to 17), to be opposed.

(62)  Schedule 7, Part 3, page 86 (lines 2 to 21), to be opposed.

(63)  Schedule 7, Part 4, page 87 (line 2) to page 88 (line 7), to be opposed.

(66)  Schedule 9, item 4, page 94 (lines 9 to 15), to be opposed.

(71)  Schedule 9, item 18, page 97 (lines 8 to 14), to be opposed.

(111)       Schedule 15, items 94 and 95, page 179 (lines 4 to 14), to be opposed.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that schedules 4, 7, 9 and 15 stand as printed.

Question negatived.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move amendment (12) on sheet QH401:

(12)  Schedule 2, item 36, page 15 (line 20) to page 16 (line 9), omit the definition of parent, substitute:

parent: without limiting who is a parent of a person for the purposes of this Act, someone (the adult) is the parent of a person if:

             (a)    the adult is legally entitled to, and has, custody of the person; or

             (b)    the adult is legally responsible for the day-to-day care, welfare and development of the person and has the person in his or her care.

Question agreed to.

The government opposes schedule 6, schedule 7 and schedule 9 in the following terms:

(37)  Schedule 6, items 13 to 16, page 56 (lines 12 to 28), to be opposed.

(41)  Schedule 6, item 45, page 61 (lines 10 to 19), to be opposed.

(49)  Schedule 6, items 104 to 106, page 69 (line 20) to page 70 (line 4), to be opposed.

(51)  Schedule 6, item 118, page 71 (lines 8 to 13), to be opposed.

(56)  Schedule 7, items 49 and 50, page 83 (lines 12 to 18), to be opposed.

(57)  Schedule 7, item 52, page 83 (line 23) to page 84 (line 21), to be opposed.

(67)  Schedule 9, item 6, page 94 (line 20) to page 95 (line 9), to be opposed.

(76)  Schedule 9, items 23 and 24, page 98 (lines 15 to 34), to be opposed.

(77)  Schedule 9, item 26, page 99 (lines 2 to 23), to be opposed.

(80)  Schedule 9, items 36 and 37, page 102 (lines 18 to 32), to be opposed.

The Temporary Chairman:

The question is that schedules 4, 7 and 9 stand as printed.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition support these amendments. These are amendments that were recommended by the Senate Standing Committee on Legal and Constitutional Affairs in relation to the sensitive issue of the definitions in the legislation. They do not attack its essential purpose but it was the view of the committee, and in particular the Liberal senators—Senator Barnett, Senator Mary-Jo Fisher and Senator Trood—that these amendments were appropriate to provide reassurance to those who questioned the effect of this legislation upon families that the legislation in fact respected pre-existing categories and created a scheme which was consistent with the maintenance of marriage and the traditional notions of family life.

Question negatived.

The Temporary Chairman:

Moving along to request (15) on sheet QH401, is it the wish of the committee that the statements of reasons accompanying the requests be incorporated in Hansard immediately after the requests to which they relate? There being no objection, it is so ordered.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move request (15) on sheet QH401:

(15)  Schedule 2, page 20, (after line 3), after item 52, insert:

Family Law Act 1975

52A Subsection 4(1) (paragraphs (b) and (c) of the definition of step-parent)

Repeal the paragraphs, substitute:

             (b)    is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and

             (c)    treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.

52B  Paragraph 66M(3)(b)

After “marriage to”, insert “, or relationship with,”.

52C  Application to the Child Support (Registration and Collection) Act 1988

To the extent that the amendment of the Family Law Act 1975 made by this Schedule affects the definition of step-parent in subsection 4(1) of the Child Support (Registration and Collection) Act 1988, it applies in relation to that definition on and after 1 July 2009.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

I have been somewhat caught on the hop, having been in the chair. I had a list of questions which I forwarded to the Attorney-General in relation to this request, which deals with a step-parent and extends the definition of ‘step-parent’ contained within the Family Law Act. Firstly, you have the duty of a step-parent to maintain a child outlined in section 66M of the Family Law Act. You have the definition of ‘step-parent’, which is contained in section 4. Associated with that you have section 62B, which deals with the right of a child to have contact with a person by whom it is cared for. The wording in that section states that the person has to have that relationship with the child, and it talks of, for instance, a grandparent or relative. When you look at ‘relative’ in section 4, you see that that incorporates a step-parent. It would therefore seem that, in the two streams you are looking at—one dealing with contact with the child—you have an avenue of criteria which talks of a step-parent having an ability to have contact with the child; and, in the other avenue of maintenance, you have criteria set out in section 66M(3). Those criteria are quite exhaustive. They talk of the nature of the relationship and the duration.

The question I put to the government today is this: are we requiring more stringent criteria for the relationship of step-parent when it comes to maintaining the child, as opposed to the criteria for communication and contact with the child by a step-parent? The other questions I asked went to what effect the inclusion of a de facto relationship would have on a step-parent, what class of relationship would be included, were there any time requirements, were the criteria contained in section 66M(3) relevant—although that is spelt out under that duty to maintain, could it come within that?—and what could be the effects of this change in definition. You can appreciate that when you look at who should have contact with a child it should be in the best interests of the child that that occur and the person who has that contact should have some standing in relation to the child concerned. I have enumerated those questions in more detail in a letter to the Attorney-General and I would be obliged if the minister could advise the committee as to the government’s view on those questions that I have put.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Can I indicate to Senator Ellison that, broadly, my advice is that there is a consistent definition of step-parent in the two contexts you outlined. However, obviously there would be additional elements which would need to be considered—for example, the best interests of the child, financial arrangements and so forth. I do have a very detailed set of responses for you, Senator Ellison, in relation to the five questions that you asked, which I am equally happy to read out or to table.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

Madam Temporary Chairman, I wonder if they could be incorporated?

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

Yes.

Leave granted.

The document read as follows—

SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS —GENERAL LAW REFORM) BILL 2008

Possible Question

Senator the Hon Chris Ellison, Senator for Western Australia, wrote, on Friday 21 November 2008 to the Attorney-General, asking that the Attorney-General take five questions on notice for the Minister to answer during the Committee stages of debate of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws —General Law. Reform) Bill 2008.

Talking points

What are all the legal (and some practical) consequences of the expanded definition of step-parent? For example, if a single mother has a series of de facto relationships would each of the men with whom she has a de facto relationship become a “step-parent” of her child? Is there any minimum period of duration for the de facto relationship before the status of “step-parent” could be acquired?

What are all the legal and practical consequences of the expanded definition of step-parent?

• The definition, as amended, will include a current or former de facto partner of a parent of the child where he or she treats, or while a de facto partner of that parent, treated, the child as a member of the family he or she formed with the parent.
• The definition is being amended to remove its discriminatory effects in relation to ‘step-parents’ who are or were in a de facto relationship with a parent of the child. The definition is currently limited to persons who are a step-parent of a child because they are or were married to a parent of the child.
• Extending the definition will give greater significance to the relationship between such a ‘step-parent’ and a child in Family Law Act proceedings for a parenting order. It will also enable courts, where it is appropriate, to order the payment of child maintenance by the ‘step-parent’ who is or was in a de facto relationship with a parent of the child.

Is there any minimum period of duration for the de facto relationship before the status of ‘step-parent’ could be acquired?

• In the case of a de facto relationship, the step-parent would need to satisfy a strict threshold test. This test includes requirements that the relationship is of sufficient length;
• that the parties display a mutual commitment to a shared life; and
• that they have a public reputation as a de facto relationship.
• There is no minimum duration before a de facto partner acquires the status of a step-parent.
• However, on issues of de facto step-parent maintenance, a step-parent will only have a duty to maintain a step-child where the court has determined under section 66M of the Family Law Act that it is proper for that step-parent to have that duty.
• Under the Government amendments to section 66M(3)(b), one of the matters on which a court must have regard in determining whether it is proper for the step-parent to have a duty to maintain the child, is the length and circumstances of the relationship between the step-parent and the natural parent of the child.

Under Section 4 of the Act the definition of a “relative” for the purposes of Part VII of the Family Law Act 1975 includes a “step-parent”. Could the Minister confirm that the amendment to the definition of “step-parent” would consequently expand the number of people who would be defined as a “relative” under this provision?

• Yes, the amendment to the definition of ‘step-parent’ will carry across the paragraph (a) of the definition of ‘relative’ in section 4 of the Family Law Act.

Part VII includes Section 60B(2)(b) of the Act which provides that one of the principles underlying the objects of Part VII is that: “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”. Could the Minister clarify whether this provision is intended to limit this right to refer only to those “grandparents and other relatives” who, for reasons particular to each child, are considered to be “people significant to their care, welfare and development” or is it intended to provide that “grandparents and other relatives” are automatically to be presumed to be “people significant to their care, welfare and development”?

• Grandparents and other relatives are examples given of persons falling in this category.
• Section 60B(2)(b) of the Family Law Act recognises as a principle underlying the objects of the Act that children have a right to a relationship with people other than their parents who are significant to their care, welfare and development.

Could the Minister clarify whether the provisions in Section 60M(3) of the Act as it would be amended by the Government’s foreshadowed amendments to this Bill, apply in any way to limit which “step-parents” would be covered by the provisions of Section 60B(2)(b) of the Family Law Act 1975? Or are these more stringent conditions only relevant to the question of a duty to maintain and not at all relevant to the question of the right of the child “to spend time on a regular basis with, and communicate on a regular basis with” a step-parent?

• Section 66M is directed to the special rule applying to the payment by a step-parent of maintenance for a child.
• Neither section 66M nor 66M(3) in any way limit the persons who are step-parents under section 60B(2)(b).
• Section 66M does not impact upon the question of the right of the child to spend time on a regular basis with, and communicate on a regular basis with, a step-parent.

Section 13C(3) of the Act provides that in relation to “family counselling, family dispute resolution and other family services” the court may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings”. A note to this subsection states: “For example, the participation of children, grandparents or other relatives may be encouraged”. Could the Minister confirm whether the term “relatives” in this note would consequent to the Government’s proposed amendment to the definition of “step-parent” be expanded to include former de facto partners of a child’s parent?

• Section 13C provides that a court, when making an order during proceedings under the Act, may at any stage during the proceedings make an order for parties to attend family counselling, family dispute resolution or to participate in other family services.
• Subsection 13C(3) provides that the court order may require parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
• Whether or not a court would make an order under section 13C, which is in Part II IB of the Act, encouraging participation will depend on whether the person ‘is likely to be affected by the proceedings’ and is not limited by the definition of “relative” for the purposes of Part VII of the Act.
• The note below subsection 13C(3) only provides an example of the kinds of persons who could in a case be people who are ‘likely to be affected by the proceedings’.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

I have just one question to ask on the hop, as it were. In relation to that question of contact with the child, an example of grandparent and other relatives is mentioned. Does the reference to that example give it any more status than just that—an example—or is the prime issue that of the interests of the child? I do not have the act in front of me, but in section 62B it talks about someone with significant care of the child. What we are looking at here is someone who might be on the scene temporarily, if you like, in a relationship, having the ability to communicate with and contact the child. That is my concern when you have much stricter criteria where you have a requirement to maintain the child. Perhaps the minister could place on record the answer to that if it is possible to glean it from the detail that is contained there.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am advised that the reference to grandparents and other relatives which is in the proviso ‘such as’ is an example given of persons falling into the category, the parameters of which are set out in 60B(2)(b), which recognises that the principle underlying the act is that children have a right to a relationship with people other than their parents who are significant to their care, welfare and development.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

Just to make it absolutely clear: the question of significant care is the issue here and the examples given are just that.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Ellison, I think what I said was ‘significant to their care, welfare and development’. As I read these notes, that is in fact the wording of the relevant aspect of that subsection of the act.

Chris Ellison (WA, Liberal Party) Share this | Link to this | Hansard source

I do not have the act in front of me, but I take the minister’s point. If I could have a copy of that which the minister has incorporated, I have no further questions.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

The question is that the request be agreed to.

Question agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government request (39) on sheet QH401:

(39)  Schedule 6, page 58 (after line 4), after item 22, insert:

Child Support (Assessment) Act 1989

22A  Subsection 5(1) (paragraph (b) of the definition of member of a couple)

Repeal the paragraph, substitute:

             (b)    a person who is living with another person as the partner of the other person on a genuine domestic basis although not legally married to the other person; or

             (c)    a person whose relationship with another person (whether of the same sex or a different sex) is 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, and is not living separately and apart from the other person on a permanent or indefinite basis .

22B  Subsection 5(1) (definition of parent)

Repeal the definition, substitute:

parent:

             (a)    when used in relation to a child who has been adopted—means an adoptive parent of the child; and

             (b)    when used in relation to a child born because of the carrying out of an artificial conception procedure—means a person who is a parent of the child under section 60H of the Family Law Act 1975; and

             (c)    when used in relation to a child born because of a surrogacy arrangement—includes a person who is a parent of the child under section 60HB of the Family Law Act 1975.

22C  Subsection 5(1)

Insert:

relative has a meaning affected by subsection (4).

22D  At the end of section 5

Add:

Relatives

        (4)    For the purposes of section 26A and subparagraph 150(4E)(b)(ii), the relatives of a person are taken to include the following (without limitation):

             (a)    a partner of the person;

             (b)    someone who is a parent of the person, or someone of whom the person is a parent, because of the definition of parent in this section;

             (c)    anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.

22E  Paragraph 29(2)(d)

Omit “the father or mother”, substitute “a parent”.

22F  At the end of subsection 29(2)

Add:

       ; or (i)    that the person is a parent of the child under section 60H or section 60HB of the Family Law Act 1975 .

22G  Sub-subparagraph 163A(2)(b)(v)(B)

Repeal the sub-subparagraph, substitute:

                       (B)    in a de facto relationship with each other;

22H  Subsection 163A(5)

Repeal the subsection, substitute:

        (5)    In this section:

de facto relationship means:

             (a)    a relationship between 2 persons (whether of the same sex or different sexes) who, although not legally married to each other, live with each other on a genuine domestic basis in a relationship as a couple; or

             (b)    a relationship between 2 persons (whether of the same sex or different sexes) that is 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.

Child Support (Registration and Collection) Act 1988

22J  Subsection 4(1)

Insert:

relative has a meaning affected by subsection (5).

22K  At the end of section 4

Add:

        (5)    For the purposes of this Act, the relatives of a person are taken to include the following (without limitation):

             (a)    a partner (within the meaning of the Assessment Act) of the person;

             (b)    someone who is the parent of the person, or someone of whom the person is a parent, because of the definition of parent in the Assessment Act;

             (c)    anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.

Question agreed to.

by leave—I move government amendments (83) and (84) on sheet QH401 together:

(83)  Schedule 10, page 107 (before line 5), before item 13, insert:

12A  Subsection 5(1)

Insert:

adoption has the same meaning as in the regulations.

(84)  Schedule 10, item 20, page 108 (lines 9 to 18), omit subsection 5CA(1), substitute:

        (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.

These amendments amend the Migration Act definition of ‘child’ by removing the reference to ‘product of a relationship’ as a definition of a child and instead utilising by reference to a child the definition within the meaning of the Family Law Act. To preserve existing migration policy, the definition of a child will use the meaning of adoption in the Migration Regulations rather than the Family Law Act meaning of that term.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The amendments are consistent with the scheme of the legislation. They are an improvement to the bill in its original form and have the opposition’s support.

Question agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move items (88) and (89) on sheet QH401:

(88)  Schedule 11, page 125 (after line 21), after item 13, insert:

13A  Paragraph 15(d)

After “spouse” (wherever occurring), insert “, de facto partner”.

(89)  Schedule 11, Part 3, page 125 (after line 35), at the end of the Part, add:

14A  Paragraph 38(d)

After “spouse” (wherever occurring), insert “, de facto partner”.

These are amendments to the Civil Aviation (Carriers’ Liability) Act which correct existing references to ‘spouse’ to read ‘spouse or de facto partner’, consistent with the broad schemata in the bill.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

These are yet further amendments, albeit in small compass, which perhaps should have been picked up in the first draft of the bill. They are yet another improvement of the bill and they of course have the opposition’s support.

Question agreed to.

Bill, as amended, agreed to, subject to requests.

Bill reported with amendments and requests; report adopted.