Senate

Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland Mp

Schedule 2 - Attorney-General's amendments

96 This Schedule contains amendments to the Federal Magistrates Act 1999 (FM Act), the Judges' Pensions Act 1968 (Judges' Pensions Act) and the Law Officers Act 1964 (Law Officers Act).

97 The FM Act provides death benefits for federal magistrates. Where a magistrate dies in office or a former magistrate in receipt of a disability pension dies before reaching age 65, a lump sum, covering the period between the date of death and age 65, is payable to the magistrate's spouse and dependent children.

98 The Judges' Pensions Act makes provision in relation to the entitlements to pensions of persons who hold office as judges of the High Court of Australia, the Federal Court of Australia and the Family Court of Australia and certain other office holders who are deemed to be judges for the purposes of the Act.

99 The Law Officers Act establishes the office of the Solicitor-General of the Commonwealth and makes provision in relation to the entitlements to pensions of persons who were appointed as Solicitor-General prior to 1 January 1998. It applies terminology from the Judges' Pensions Act and treats a person appointed as Solicitor-General as though they were, or had been, a Judge and as though their service (whether in continuous periods or not) as Solicitor-General were service as a judge.

100 Currently, death benefits or pensions can only be paid to a married or opposite-sex de facto spouse of a deceased federal magistrate or judge, or Solicitor-General, or, where there is no spouse who is eligible to receive the benefit, to eligible children of the federal magistrate or judge. Eligibility for a spouse depends in part on whether the person is in a marital relationship with a federal magistrate or judge at the time of the magistrate's or judge's death.

101 These amendments will make death and pension benefits arising from the death of a federal magistrate or judge equally available to an eligible same-sex partner of the federal magistrate or judge and certain additional classes of children associated with such relationships.

102 From the commencement of these amendments, eligibility for a spouse's entitlement will be linked to whether a person was in a couple relationship with the federal magistrate or judge at the time of the magistrate's or judge's death. A couple relationship will include relationships between persons of the same sex in specified circumstances as well as those relationships previously referred to as marital relationships.

Federal Magistrates Act 1999

Item 1

103 This item inserts into section 5 of the FM Act a "(1)" before the word "In".

Item 2

104 This item inserts into subsection 5(1) of the FM Act a signpost to the definition of the term ' couple relationship' in subclause 9E(5) of Schedule 1 to the FM Act.

Item 3

105 This item repeals the definition of ' marital relationship' as a consequence of amendments made by items 6, 7 and 9 which replace the term ' marital relationship' with ' couple relationship' .

Item 4

106 This item inserts a definition of ' partner' into section 5 of the FM Act. This amendment is related to the amendments being made to subclauses 9E(5) of Schedule 1 to the FM Act by item 8 which replaces the phrase ' husband or wife' with the term ' partner' to extend the current concept of who can be considered to be eligible for death benefits to include a person in a same-sex relationship with a federal magistrate.

Item 5

107 This item inserts subsection 5(2) into the FM Act. Subsection 5(2) provides that for the purposes of the FM Act a child cannot be the product of a relationship, whether between same or opposite-sex partners, unless the child is the biological child of at least one person in the relationship or is born to a woman in the relationship. This is relevant to new subparagraph 9E(7)(c)(iii) of Schedule 1 to the FM Act inserted by item 11 and new subclause 9F(1A) of Schedule 1 inserted by item 12.

Item 6

108 Clause 9E of Schedule 1 to the FM Act defines certain relationships for the purpose of establishing status as a beneficiary for a death benefit payment.

109 Subclauses 9E(2), (3) and (4) set out the requirements for a person to be considered an ' eligible spouse' of a federal magistrate for the payment of death benefits. A person is an ' eligible spouse' of a federal magistrate, or a retired disabled federal magistrate, who dies, if any of the following three circumstances apply:

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the person had a marital relationship with the federal magistrate at the time of the Magistrate's death.

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the person had a marital relationship with the retired disabled federal magistrate at the time of the magistrate's death and that relationship began before the magistrate (i) retired or (ii) attained age 60.

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the person had previously had a marital relationship with the federal magistrate or the retired disabled federal magistrate, as the case may be, and did not, at the time of the magistrate's death, have such a relationship but was legally married to the magistrate and was, in the Minister's opinion, wholly or substantially dependent on the magistrate. Where the marital relationship of a retired disabled federal magistrate began after the magistrate retired, the relationship has to have begun before the magistrate attained age 60.

110 The amendments made by item 6 replace the term ' marital relationship' with the term ' couple relationship' . The effect of this amendment is to ensure that the definition of a relationship, for the purpose of the payment of death benefits, includes a same-sex relationship as well as an opposite-sex relationship. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.

Items 7, 8 and 9

111 Subclause 9E(5) of Schedule 1 to the FM Act provides that a person has a ' marital relationship' with another person at a particular time if they have been living as husband and wife (whether or not they are legally married):

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for a continuous period of at least 3 years up to that time, or

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for a continuous period of less than 3 years up to that time and the Minister, having regard to any relevant evidence, is of the opinion that they ordinarily lived with each other as husband and wife on a permanent and bona fide domestic basis at that time.

112 Subclause 9E(6) provides guidance on the timing of when a marital relationship has begun.

113 The amendments made by these items replace the term ' marital relationship' with the term ' couple relationship' and replace the phrase ' husband or wife' with the term ' partner' . The effect of these amendments is to ensure that the definition of a relationship, for the purpose of the payment of death benefits, includes a same-sex relationship as well as an opposite-sex relationship. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.

114 Item 7 replaces the term ' marital relationship' with the term ' couple relationship' in subclause 9E(5). The heading to subclause 9E(5) is also replaced with a new heading that refers to a ' couple relationship' .

115 Item 8 replaces the phrase ' husband or wife' with the term ' partner' in subclause 9E(5). The term partner is defined in subsection 5(1) of the FM Act (see item 4).

116 Item 9 replaces the term ' marital relationship' with the term ' couple relationship' in subclause 9E(6).

Items 10 and 11

117 Subclause 9E(7) of Schedule 1 to the FM Act provides that relevant evidence for the Minister in making a decision whether a person ordinarily lived with another person as their ' partner' on a permanent and bona fide domestic basis at a particular time would include evidence:

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that the person was wholly or substantially dependent on the other person at the time.

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that they were legally married to each other at the time.

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that they had a child or had adopted a child during their relationship.

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that they jointly owned a home which was their usual residence.

118 In recognition of extending the existing concept of who can be considered to be a spouse or child for the payment of death or pension benefits to cover persons in same-sex relationships item 10 inserts paragraph 9E(7)(ba) and item 11 inserts subparagraph 9E(7)(c)(iii) into Schedule 1 to the FM Act. Item 11 also includes a note that provides that new subsection 5(2) is relevant to working out when a child is the product of the relationship for the purposes of the new subparagraph 9E(7)(c)(iii) (see item 5).

119 Relevant evidence will now include whether:

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the persons' relationship is registered under a State or Territory law prescribed for the purposes of paragraph 4AB(4)(ba) of the Judges' Pensions Act 1968 as a kind of relationship prescribed for the purposes of that paragraph; and

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whether there is a child who was the product of the relationship between the persons.

Item 12

120 Clause 9F of Schedule 1 to the FM Act defines ' eligible child' for the purposes of the FM Act.

121 A person is an eligible child of a federal magistrate or of a retired federal magistrate if the person:

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is under 16 years of age, or under 25 years of age and in full-time education, and

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either is a child or adopted child of the magistrate or, in the Minister's opinion, was or would have been wholly or substantially dependent on the magistrate.

122 This item inserts new subclause 9F(1A) to expand the classes of children that may be taken to be an ' eligible child' of a federal magistrate for the purposes of determining the payment of death benefits. It adds a new criteria that, if, at any time, the federal magistrate or retired federal magistrate had a partner, a child who is the product of the federal magistrate's relationship with that partner is taken to be the federal magistrate's child.

123 Item 12 also inserts a note at the end of new subclause 9F(1A) that provides that new subsection 5(2) of the FM Act is relevant to working out if a child is the product of a relationship (see item 5).

124 New subclause 9F(1A) of Schedule 1 to the FM Act and new subsection 5(2) are intended to encompass situations as described in examples 1 and 2 below. However, they are not intended to encompass situations as described in example 3 below.

Example 1

J is a scheme member and forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using gametes from S and a donor. The procedure takes place and S gives birth to H. Whilst H is the biological child of S, he is not the biological child of J.

125 H can be considered J's child for the purposes of the definition of ' child' in the FM Act. That is, H is the product of the relationship between J and S and is S's biological child. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 2

J is a scheme member and forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place and S gives birth to H. Whilst H is the birth child of S, he is not the biological child of either J or S.

126 H can be considered J's child for the purposes of the definition of ' child' in the FM Act. That is, H is the product of the relationship between J and S and S is H's birth mother. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 3

J is a scheme member and forms a relationship as a couple with S. S has a child H from a previous relationship.

127 H cannot be considered J's child within the meaning of ' eligible child' in the FM Act. Whilst H is S's biological child, and S is in the relationship, H is not the product of the relationship between J and S. H's connection with J only arose because J commenced a relationship with S. It did not arise from any actions of the couple to add a child to their relationship.

Item 13

128 This item provides that the amendments made to the FM Act by Schedule 2 to the Bill apply in respect of benefits payable as a result of the death of a federal magistrate or a retired disabled federal magistrate only if the federal magistrate or the retired disabled federal magistrate dies on or after the commencement of Schedule 2 to the Bill.

Judges' Pensions Act 1968

Item 14

129 This item amends subsection 4(1) of the Judges' Pensions Act to insert a definition to clarify the meaning of ' child of a couple relationship' . The new definition expands the classes of children that are taken to be children of a judge for the purposes of determining eligibility for pension benefits. The new definition provides that a child can be considered to be a ' child of a couple relationship' if the child:

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was born of the couple relationship

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was adopted by the people in the couple relationship during the period of the relationship, or

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was the product of the couple relationship.

130 A definition of ' couple relationship' is provided in section 4AB.

131 Item 14 also inserts a note at the end of the new definition that provides that subsection 4(4) of the Judges' Pensions Act is relevant to working out if a child is the product of a relationship for the purposes of paragraph (c) (see item 19).

Item 15

132 This item repeals the definition of ' child of a marital relationship' as a consequence of amendments made by items 22, 24, 27 and 28 which replace the term ' child of a marital relationship' with ' child of a couple relationship' .

Item 16

133 This item inserts into subsection 4(1) of the Judges' Pensions Act a signpost to the definition of the term ' couple relationship' in section 4AB of the Judges' Pensions Act.

Item 17

134 This item inserts a definition of ' partner' into subsection 4(1) of the Judges' Pensions Act. This amendment is related to the amendments being made to subsections 4AB(1) and (2) of the Judges' Pensions Act by item 23 which replaces the phrase ' husband or wife' with the term ' partner' to extend the current concept of who can be considered to be eligible for pension benefits to include a person in a same-sex relationship with a Judge.

Item 18

135 This item inserts into subsection 4(1) of the Judges' Pensions Act a signpost to the definition of the term ' spouse' in section 4AC of the Judges' Pensions Act.

Item 19

136 This item inserts subsection 4(4) into the Judges' Pensions Act. Subsection 4(4) provides that a child cannot be the product of a relationship, whether between same or opposite-sex partners, unless the child is the biological child of at least one person in the relationship or is born to a woman in the relationship. This is relevant to the new definition of ' child of a couple relationship' in subsection 4(1) inserted by item 14, new subsection 4AA(2) inserted by item 21 and new subparagraph 4AB(4)(c)(iii) inserted by item 26.

Item 20

137 This item inserts into section 4AA of the Judges' Pensions Act a "(1)" before the word "For".

Item 21

138 Section 4AA of the Judges' Pensions Act defines "eligible child" for the purposes of the Act.

139 A person is an eligible child of a deceased judge or of a deceased retired judge if the person:

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is the child of the deceased judge, or

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in the Attorney-General's opinion, the child was or would have been wholly or substantially dependent on the deceased judge.

140 This item inserts new subsection 4AA(2) to expand the classes of children that may be taken to be an ' eligible child' of a deceased judge for the purposes of determining the payment of death benefits. If, at any time, the deceased judge or deceased retired judge had a partner, a child who is the product of the judge's relationship with that partner is taken to be the judge's child.

141 Item 21 also inserts a note at the end of new subsection 4AA(2) that provides that new subsection 4(4) of the Judges' Pensions Act is relevant to working out if a child is the product of a relationship (see item 19).

142 New subsection 4AA(2) and new subsection 4(4) are intended to encompass situations as described in examples 1 and 2 below. However, they are not intended to encompass situations as described in example 3 below.

Example 1

J is a scheme member and forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using gametes from S and a donor. The procedure takes place and S gives birth to H. Whilst H is the biological child of S, he is not the biological child of J.

143 H can be considered J's child within the meaning of ' eligible child' in the Judges' Pensions Act. That is, H is the product of the relationship between J and S and S's biological child. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 2

J is a scheme member and forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place and S gives birth to H. Whilst H is the birth child of S, he is not the biological child of either J or S.

144 H can be considered J's child within the meaning of ' eligible child' in the Judges' Pensions Act. That is, H is the product of the relationship between J and S and S is H's birth mother. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 3

J is a scheme member and forms a relationship as a couple with S. S has a child H from a previous relationship.

145 H cannot be considered J's child within the meaning of ' eligible child' in the Judges' Pensions Act. Whilst H is S's biological child, and S is in the relationship, H is not the product of the relationship between J and S. H's connection with J only arose because J commenced a relationship with S. It did not arise from any actions of the couple to add a child to their relationship.

Items 22, 23 and 24

146 Subsection 4AB(1) of the Judges' Pensions Act set out the requirements for determining when a person is to be considered in a ' marital relationship' with a judge or retired judge. A person is taken to be in a ' marital relationship' with a judge, or a retired judge, if the person ordinarily lived with the judge as the judge's husband or wife on a permanent and bona fide domestic basis at that time.

147 Subsection 4AB(2) provides that a person is to be regarded as ordinarily living with another person on a permanent or bona fide domestic basis if they have been living as husband and wife (whether or not they are legally married):

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for a continuous period of at least three years up to that time, or

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for a continuous period of less than three years up to that time and the Attorney-General, having regard to any relevant evidence, is of the opinion that they ordinarily lived with each other as husband and wife on a permanent and bona fide domestic basis at that time.

148 Subsection 4AB(3) provides guidance on the timing of when a marital relationship has begun.

149 The amendments made by items 22, 23 and 24 replace the term ' marital relationship' in subsection 4AB(1) with the term ' couple relationship' and replace the phrase ' husband or wife' with the term ' partner' . The effect of this amendment is to ensure that the definition of a relationship, for the purpose of the payment of death benefits, includes a same-sex relationship as well as an opposite-sex relationship. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.

150 Item 22 replaces the term ' marital relationship' with the term ' couple relationship' in subclause subsection 4AB(1) of the Judges' Pensions Act. The heading to subsection 4AB(1) is also replaced with a new heading that refers to a ' couple relationship' .

151 Item 23 replaces the phrase ' husband or wife' with the term ' partner' in subsections 4AB(1) and (2) of the Judges' Pensions Act. The term partner is defined in subsection 4(1) of the Judges' Pensions Act (see item 17).

152 Item 24 replaces the term ' marital relationship' with the term ' couple relationship' in subsection 4AB(3) of the Judges' Pensions Act.

Items 25 and 26

153 Subsection 4AB(4) of the Judges' Pensions Act provides that relevant evidence for the Attorney-General in making a decision whether a person ordinarily lived with another person as their ' partner' on a permanent and bona fide domestic basis at a particular time, would include evidence:

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that the person was wholly or substantially dependent on the other person at the time.

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that they were legally married to each other at the time.

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that they had a child or had adopted a child during their relationship.

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that they jointly owned a home which was their usual residence.

154 Certain registered relationships will be able to taken into account as evidence of the existence of the relationship in recognition of extending the existing concept of who can be considered to be a spouse or child for the payment of death or pension benefits to cover persons in same-sex relationships. Item 25 inserts paragraph 4AB(4)(ba) and item 26 inserts subparagraph 4AB(4)(c)(iii) into the Judges' Pensions Act.

155 Item 26 also includes a note that provides that new subsection 4(4) is relevant to working out when a child is the product of the relationship for the purposes of the new subparagraph 4AB(4)(c)(iii) (see item 19).

156 Relevant evidence will now include whether:

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the persons' relationship is registered under a State or Territory law prescribed for the purposes of paragraph 4AB(4)(ba) of the Judges' Pensions Act 1968 as a kind of relationship prescribed for the purposes of that paragraph; and

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there is a child who was the product of the relationship between the person and the judge.

Item 27

157 Section 4AC sets out the requirements for a person to be considered a ' spouse' of a judge for the payment of death benefits. Subsection 4AC(2) provides that a person is a ' spouse' of a judge, or a retired judge, who dies if the following circumstances apply:

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the person had a marital relationship with the judge at the time of the judge's death (paragraph 4AC(2)(a)), and

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the person had a marital relationship with the retired judge at the time of the judge's death and that relationship began before the judge (i) retired or (ii) attained age 60, or (iii) the marital relationship had continued for a period of at least 5 years before the judge's death (paragraph 4AC(2)(b)), or

158 Subsection 4AC(3) provides that a person is a ' spouse' of a judge, or a retired judge, who dies if the following circumstances apply:

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the person had previously had a marital relationship with the judge (paragraph 4AC(3)(a)), and

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the person did not, at the time of the judge's death, have such a relationship but was legally married to the deceased judge (paragraph 4AC(3)(b)), and

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where the marital relationship of a retired judge began after the judge retired, the relationship began before the judge attained age 60 (paragraph 4AC(3)(c)), and

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in the Attorney-General's opinion, the person was wholly or substantially dependent upon the judge (paragraph 4AC(3)(d)).

159 The amendments made by item 27 replace the term ' marital relationship' with the term ' couple relationship' . The effect of this amendment is to ensure that the definition of a relationship, for the purpose of the payment of death benefits, includes a same-sex relationship as well as an opposite-sex relationship. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.

Item 28

160 Sections 10, 11 and 12 provide guidance on when pensions will be payable in respect of children:

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on the death of a retired judge (section 10)

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on the death of a spouse (section 11), and

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on the death of a judge or retired judge when a spouse's pension is not payable (section 12).

161 The amendments made by item 28 replace the term ' marital relationship' with the term ' couple relationship' in subsections 10(2), 11(3), and 12(3). The effect of this amendment is to ensure that the definition of a relationship, for the purpose of the payment of a pension, includes a same-sex relationship as well as an opposite-sex relationship. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples. It removes same-sex discrimination but does not change or re-define any other indicia of a relationship.

Item 29

162 This item amends paragraph 17A(aa) to reflect amendments made by item 20.

Item 30

163 Subclause (1) of this item provides that the amendments made to the Judges' Pensions Act by Schedule 2 to the Bill apply in respect of pensions payable as a result of the death of a judge or a retired judge only if the judge or the retired judge dies on or after the commencement of Schedule 2 to the Bill.

164 Subclause (2) of this item provides that the amendments made to the Judges' Pensions Act by Schedule 2 to the Bill apply in relation to pensions payable under the Building and Construction Industry Improvement Act 2005 as a result of the death of a ABC Commissioner or former ABC Commissioner only if the Commissioner or former Commissioner dies on or after the commencement of Schedule 2 to the Bill.

Law Officers Act 1964

Item 31

165 Subsection 16(1) of the Law Officers Act provides that the provisions of the Judges' Pensions Act other than subsection 6(3) (including the provisions relating to widows and children) apply to, and in relation to, a person who is, or has been, a Solicitor-General, as though the Solicitor-General were, or had been, a judge and as though his or her service (whether in continuous periods or not) as Solicitor-General were service as a judge. Section 16 does not apply in relation to a person appointed as Solicitor-General after 31 December 1997.

166 Subsection 16(1) of the Law Officers Act refers to 'subsection 6(3)' of the Judges' Pensions Act. This reference should have been amended by the Superannuation Legislation Amendment (Superannuation Contributions Tax) Act 1997 , which repealed subsection 6(3) and moved the contents of that subsection to the new subsection 4(2) of the Judges' Pensions Act. Item 31 corrects this error by amending the reference so that it refers to 'subsection 4(2)' of the Judges' Pensions Act rather than 'subsection 6(3)' of the Judges' Pensions Act.

167 Subsection 16(1) of the Law Officers Act also refers to the term ' widows' in the Judges' Pensions Act. The term ' widow' (wherever occurring in the Judges' Pensions Act) was replaced by ' spouse' in the Judges' Pensions Act by the Commonwealth Superannuation Schemes Amendment Act 1992 . This item corrects this anomaly by replacing the word ' widows' with ' spouses' .

Item 32

168 This item provides that the amendments made to the Law Officers Act by Schedule 2 to the Bill apply only in respect of pensions payable as a result of the death of a person who was appointed as Solicitor-General before 1 January 1998 if the person dies on or after the commencement of Schedule 2 to the Bill.