House of Representatives

Explanatory Memorandum

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

Schedule 2 - Attorney-General's amendments

100 This Schedule contains amendments to the following Acts within the Attorney-General's portfolio to remove differential treatment of same-sex couples and their children:

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Acts Interpretation Act 1901

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Administrative Decisions (Judicial Review) Act 1977

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Age Discrimination Act 2004

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Australian Federal Police Act 1979

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Bankruptcy Act 1966

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Crimes Act 1914

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Crimes (Superannuation Benefits) Act 1989

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Customs Act 1901

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High Court Justices (Long Leave Payments) Act 1979

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Judges (Long Leave Payments) Act 1979

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Passenger Movement Charge Collection Act 1978

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Proceeds of Crime Act 2002

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Service and Execution of Process Act 1992

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Sex Discrimination Act 1984

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Witness Protection Act 1994

Part 1-Amendments to the Acts Interpretation Act 1901

Acts Interpretation Act 1901

101 The Acts Interpretation Act 1901 contains machinery provisions, rules of interpretation and definitions of frequently used expressions which apply to all Commonwealth Acts, unless a contrary intention applies. The Acts Interpretation Act includes provisions relating, for example, to the dates of commencement of Acts and the effect of the repeal of an Act. A purpose of the Acts Interpretation Act is to reduce the size of legislation by avoiding the repetition of provisions by placing these provisions in an act of general application.

Item 1

102 This item inserts new sections 22A, 22B and 22C into the Acts Interpretation Act. Section 22A introduces the key definition of 'de facto partner' which refers to the associated definitions of 'registered relationships' (defined by section 22B) and 'de facto relationships' (defined by section 22C). A description of the definition of 'de facto partner' and the associated definitions can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Part 2-Amendments of other Acts

Administrative Decisions (Judicial Review) Act 1977

103 The Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) establishes procedures for judicial review of administrative decisions. The ADJR Act applies to all administrative decisions made under federal laws except decisions made by the Governor-General or decisions that are specifically excluded by Schedule 1 to the Act. A person who has a right under the Act to seek review of a decision also has a right under section 13 of the ADJR Act to request the decision maker to provide a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. Schedule 2 to the ADJR Act lists classes of decisions which are exempt from the requirement under section 13 to provide such a written statement of reasons.

Item 2

104 This item replaces the existing subparagraph (d)(iv) of Schedule 2 to the ADJR Act. Paragraph (d) of Schedule 2 to the ADJR Act provides for a number of exemptions from section 13 of the ADJR Act for certain classes of decisions under the Migration Act 1958 . Paragraph (d)(iv) refers to decisions relating to a person who, having entered Australia, within the meaning of that Act, as a diplomatic or consular representative of another country, a member of the staff of such a representative or the spouse or a dependent relative of such a representative, was in Australia at the time of the decision. The amendment will insert a new subparagraph (d)(iv). The effect of the amendment is to insert the words 'de facto partner' after the word 'spouse' and to make certain drafting changes, including to make clear that the words 'enter Australia', 'spouse', 'de facto partner' and 'relative' have the same meaning as in the Migration Act. In particular, new definitions of 'spouse' 'relative' and 'de facto partner' are being inserted into the Migration Act by Schedule 10 to the Bill.

Item 3

105 This item inserts an application provision that relates to the amendments to the ADJR Act being inserted at Item 1 of this Schedule. It limits these amendments to those decisions to which section 13 of the ADJR Act would otherwise apply which are made on or after commencement of the amendments.

Age Discrimination Act 2004

106 The Age Discrimination Act 2004 prohibits discrimination on the basis of age. The amendments extend who is to be considered a 'near relative' to include same-sex partners and their families for the purposes of section 29. Section 29 establishes that it is unlawful to discriminate on the grounds of age when a person is offering to provide accommodation to another person and also establishes an exemption to this principle. Under subsection 29(3) a person may discriminate against another person on the grounds of age when the accommodation that person is offering to provide to another person is being resided in by that person or their near relatives.

Item 4

107 This item inserts the key definition of 'child' into subsection 29(4) of the Age Discrimination Act. This definition extends the range of persons who can be considered a child of a person under section 29 of the Age Discrimination Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 5

108 This item inserts a definition of 'de facto partner' into subsection 29(4) of the Age Discrimination Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. This definition extends the range of individuals who can be considered the de facto partner of a person under section 29 of the Age Discrimination Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 6

109 This item replaces the term 'de facto spouse' with 'de facto partner' in the definition of 'near relative' at subparagraph 29(4)(a). The term 'de facto partner' has the meaning being inserted by Item 5 of this Schedule.

Item 7

110 This item inserts the key definition of 'parent' into subsection 29(4) of the Age Discrimination Act to extend the range of persons who for the purpose of section 29 of the Age Discrimination Act can be considered the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 20 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 8

111 This item inserts new subsection (5) into section 29 of the Age Discrimination Act. The item inserts a tracing rule that will allow a person's near relatives to be traced through the definitions of 'parent', 'child' and 'de facto partner' as they relate to a person for the purposes of the definition of 'near relative' in subsection 29(4) of the Age Discrimination Act. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Australian Federal Police Act 1979

112 The Australian Federal Police Act 1979 (the AFP Act) establishes the Australian Federal Police (AFP) and, amongst other things, provides for the forfeiture and recovery of employer-funded superannuation benefits which are payable, or have been paid, to AFP employees who have been convicted of corruption offences and sentenced to more than 12 months imprisonment.

113 The AFP Act also allows for the restraint of the property of an AFP employee convicted of a corruption offence, or who might be convicted of a corruption offence, where that person has been paid a Commonwealth funded superannuation benefit. The property that may be restrained includes property that is subject to the effective control of the person. Property may be subject to effective control of a person regardless of whether that person has an interest in the property. In determining whether or not property is subject to the effective control of a person, a court may have regard to, among other things, the family relationships between persons having an interest in the property and other persons. The term family relationship is currently undefined.

Item 9

114 This item inserts new subsection (3) into section 42F of the AFP Act. The item inserts a tracing rule that will allow a person's family relationships to be traced through the definitions of 'child' and 'de facto partner' for the purposes of subparagraph 42F(2)(e). A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

115 Subparagraph 42F(3)(a) provides that a 'de facto partner' has the meaning within the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

116 This item also inserts new subsection (4) into section 42F of the AFP Act which inserts the key definition of 'child'. This will extend the range of persons who can be considered a child of a person under the AFP Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

117 The overall effect of this item is to indicate (but not limit) the types of family relationships the court may have regard to in determining whether or not property is subject to the effective control of a person.

Item 10

118 This item inserts an application provision which provides that the amendments to the AFP Act being inserted by Item 9 of this Schedule will apply to an application for a superannuation order or restraining order made on or after commencement of this Schedule.

119 Regardless of whether an application for an order is made prior to, on or after the commencement of this Schedule, a court may have regard to the family relationships of persons with an interest in property and other persons when determining whether property is subject to the effective control of a person. In any case the court is not required to have regard to family relationships. In applications for an order made prior to the commencement of this Schedule, a court would need to rely on its own interpretation of family relationships. In applications for an order made on or after the commencement of this Schedule, a court could rely on the definition of family relationships (which is not exhaustive) as inserted by Item 9 of this Schedule.

Bankruptcy Act 1966

120 The Bankruptcy Act 1966 sets out the law relating to the administration of personal insolvencies in Australia. The amendments described in this Schedule will expand who is considered to be a 'related entity', 'close relative' and a 'family member' of a bankrupt under the Bankruptcy Act for the purpose of dealing with a bankrupt's estate.

Item 11

121 This item inserts the key definition of 'child' into subsection 5(1) of the Bankruptcy Act. This will extend the range of persons who can be considered a child of a person under the Bankruptcy Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 12

122 This item repeals the term 'de facto spouse' and inserts the term 'de facto partner' in the definition of a 'close relative' of a person in subsection 5(1). It will expand the range of persons to be considered a close relative of a person under the Bankruptcy Act to include the same-sex partner of a person. The definition of 'de facto partner' will be inserted by Item 13 of this Schedule.

Item 13

123 This item inserts a definition of 'de facto partner' into subsection 5(1) of the Bankruptcy Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. This definition extends the range of individuals who can be considered the close relative of a person to include someone who is in a same-sex relationship with that person. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 14

124 This item repeals the definition of 'de facto spouse' which is replaced by the definition of 'de facto partner' inserted by Item 13 of this Schedule.

Item 15

125 This item repeals the definition of 'parent' and inserts the key definition of 'parent' into subsection 5(1) of the Bankruptcy Act to extend the range of persons who can be considered to be the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 11 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 16

126 This item inserts into subparagraph 5(1)(g) of the definition of 'related entity' of the Bankruptcy Act a reference to the definition of 'de facto partner' which is inserted by Item 13 of this Schedule. This extends the meaning of 'related entity' to include the de facto partner of a person for the purposes of the Bankruptcy Act.

Item 17

127 This item replaces the term 'de facto spouse' with 'de facto partner' in the definition of 'relative' in subsection 5(1) of the Bankruptcy Act. This extends the meaning of 'relative' to include the de facto partner of a person for the purposes of the Bankruptcy Act.

Item 18

128 This item inserts the key definition of 'stepchild' into subsection 5(1) of the Bankruptcy Act. It extends the range of persons who can be considered a stepchild in the Bankruptcy Act to include someone who would be considered the stepchild of a person but for the fact that the person and the other member of a de facto relationship are not married. A description of the key definition of a 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 19

129 This item inserts new subsection (6) into section 5 of the Bankruptcy Act. The item inserts a tracing rule that will allow a person's family members to be traced through the definitions of 'parent', 'child' and 'de facto partner' as they relate to a person for the purposes of the Bankruptcy Act (unless a contrary intention appears). A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 20

130 This item inserts into subparagraphs 60(4)(a) and (b) of the Bankruptcy Act a reference to 'de facto partner', the definition of which is inserted by Item 13 of this Schedule. This extends the legal actions that a bankrupt can continue with upon becoming a bankrupt to include actions in respect of the death of, or personal injury or wrong done to the bankrupt's de facto partner.

Item 21

131 This item inserts a note into the end of subsection 60(4) that refers the reader to the subsection 5(6) explanation of who the members of a person's family may be as inserted by Item 19 of this Schedule. This will assist in establishing who is a family member for the purpose of determining the legal actions that a bankrupt can continue with upon becoming a bankrupt as described in Item 20 of this Schedule.

Item 22

132 This item inserts into subparagraphs (d)(i) and (g)(i) and (g)(ii) of subsection 116(2) of the Bankruptcy Act a reference to 'de facto partner', the definition of which is inserted by Item 13 of this Schedule. This extends the provisions relating to specified types of property interests of a bankrupt that may not be considered property divisible amongst creditors to include certain property interests that have a specified link to a bankrupt's de facto partner.

Item 23

133 This item inserts a note into the end of subparagraph 116(2)(g) of the Bankruptcy Act that refers the reader to the subsection 5(6) explanation of who the members of a person's family may be as inserted by Item 19 of this Schedule. This will assist to establish who is a family member, for the purposes of subparagraph 116(2)(g), under which the right of the bankrupt to recover damages or compensation for personal injury, wrong or death of a family member is not to be considered property divisible amongst creditors.

Item 24

134 This item will amend subparagraph 116(2)(r) which will be newly inserted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 . This item replaces the term 'de facto spouse' with 'de facto partner' in subparagraph 116(2)(r) to provide that, any property that, a trustee of a bankrupt estate is required to transfer to a former de facto partner of the bankrupt, under an order under Part VIIIAB of the Family Law Act is not property that can be divisible amongst creditors of the bankrupt.

Items 25 and 27

135 These items replace the term 'de facto spouse' with 'de facto partner' in paragraphs (b) and (c) of subsection 120(5) and paragraphs (b) and (c) of subsection 121(6). The definition of 'de facto partner' is inserted by Item 13 of this Schedule. By virtue of these amendments, certain transactions between a bankrupt and his or her de facto partner, and promises by a person to become a bankrupts de facto partner, will have no value as consideration for the purposes of these provisions.

Item 26

136 This item will amend subparagraph 120(5)(f) which will be newly inserted by the Family Law Amendment (De facto Financial Matters and Other Measures) Bill 2008 . This item replaces the term 'de facto spouse' with 'de facto partner' in subparagraph 120(5)(f). A definition of this term is inserted by Item 13 of this Schedule. Subparagraph 120(5)(f) clarifies that a grant of a right of residence by a person who later becomes bankrupt to his or her former de facto partner following the dissolution of their relationship in property transferred to that former de facto partner has no value as consideration for the purposes of determining whether it is void against the trustee of the bankrupt's estate as an undervalued transaction unless the transfer relates to a property settlement or agreement under the Family Law Act.

Item 28

137 This item will amend subparagraph 121(6)(f) which will be newly inserted by the Family Law Amendment (De facto Financial Matters and Other Measures) Bill 2008 . This item replaces the term 'de facto spouse' with 'de facto partner' in subparagraph 121(6)(f), which will have the definition as inserted by Item 13. Subparagraph 121(6)(f) clarifies that a grant of a right of residence, by a person who later becomes bankrupt, to his or her former de facto partner following the dissolution of their relationship, in property transferred to that former de facto partner has no value as consideration, for the purposes of determining whether it is void against the trustee of the bankrupt's estate as one to defeat creditors, unless the transfer relates to a property settlement or agreement under the Family Law Act.

Item 29

138 This item inserts into paragraph 134(1)(ma) of the Bankruptcy Act a reference to 'de facto partner', the definition of which is inserted by Item 13 of this Schedule. This extends the provision relating to the trustee in bankruptcy's discretion to make allowances out of a bankrupt estate to include a bankrupt's de facto partner.

Items 30, 32 and 33

139 These items insert a note at the end of paragraph 134(1)(ma) and subsections 265(2) and 268(6) of the Bankruptcy Act to alert the reader to the tracing rule that defines a 'family member' being introduced at subsection 5(6) by Item 80. Subsection 5(6) will allow a bankrupt person's family members to be traced through the definitions of 'parent', 'child' and 'de facto partner' as they relate to a person for the purposes of the Bankruptcy Act. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 31

140 This item replaces the term 'de facto spouse' with 'de facto partner' in the definition of 'spouse' as it applies in Division 4B of the Bankruptcy Act. The definition of 'de facto partner' is inserted by Item 58. This extends the term spouse that appears in section 139T of Division 4B to include a bankrupt's de facto partner.

Crimes Act 1914

141 The Crimes Act 1914 , amongst other things, makes provision for search, information gathering and arrest powers (Part 1AA), the sentencing, imprisonment and release of federal offenders (Part 1B), the investigation of Commonwealth offences (Part 1C), and forensic procedures (Part 1D). The provisions in these Parts include rules and/or rights in relation to: the conduct of strip searches and identification parades, the taking of fingerprints, recordings, handwriting samples and photographs, arrest periods, communication with friends, relatives and lawyers, and the carrying out of forensic procedures.

142 Many of these provisions refer to terms such as parent or relative. For example, the rules for conduct of a strip search in section 3ZI of the Crimes Act provide, among other things, that a strip search of a person who is at least 10 years of age but under 18 years of age must be conducted in the presence of a parent or guardian. In another example, section 23C provides, amongst other things, that in calculating the period of arrest for non-terrorism offences, time during which the questioning of the person is suspended or delayed to allow the person to communicate with a relative or parent is to be disregarded.

143 The overall effect of the amendments made by Items 34 to 40 of this Schedule is to expand the definition of who is a parent or relative for the purposes of relevant provisions in the Crimes Act. The amendments do not change the rules and/or rights as they currently exist in the Crimes Act.

Item 34

144 This item inserts the key definition of 'child' into subsection 3(1) of the Crimes Act. This will extend the range of persons who can be considered a child of a person under the Crimes Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 35

145 This item inserts a definition of 'de facto partner' into subsection 3(1) of the Crimes Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 36

146 This item inserts a new definition of 'parent' into subsection 3(1) which will replace the definition of 'parent' to be removed by Item 40. This item will apply the concepts of legal entitlement to custody and legal responsibility for the maintenance and well-being of a child, which currently define a parent under subsection 23WA(1), to the key definition of 'child' to be inserted at Item 38, for the purposes of determining who is a parent under the Crimes Act.

Item 37

147 This item inserts into subsection 3(1) a statement that a person's relative will be defined by the definition at subsection 3(3), which will be inserted by Item 38.

Item 38

148 This item inserts new subsection 3(3) into section 3 of the Crimes Act. The item inserts a tracing rule that will allow the relatives of a person to be traced through the definitions of 'child' and 'de facto partner'. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 39

149 This item inserts new subsection (4) into section 16A of the Crimes Act. The item inserts a tracing rule that, for the purposes of section 16A, will allow the family of a person to be traced through the definitions of 'child' and 'de facto partner'. Section 16A prescribes the matters must take into account when passing a sentence. One of these matters is the probable effect that any sentence or order under consideration would have on any of the person's family. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 40

150 This item removes the definition of 'parent' from subsection 23WA(1). A new definition of 'parent' will be inserted by Item 36 of this Schedule.

Crimes (Superannuation Benefits) Act 1989

4 The Crimes (Superannuation Benefits) Act 1989 provides for the forfeiture and recovery of employer-funded superannuation benefits which are payable, or have been paid, to Commonwealth employees who have been convicted of corruption offences and sentenced to more than 12 months imprisonment.

5 The Crimes (Superannuation Benefits) Act also allows for the restraint of the property of a Commonwealth employee convicted of a corruption offence, or who might be convicted of a corruption offence, where that person has been paid a Commonwealth funded superannuation benefit. The property that may be restrained includes property that is subject to the effective control of the person. Property may be subject to effective control of a person regardless of whether that person has an interest in the property. In determining whether or not a property is subject to the effective control of a person, a court may have regard to, among other things, the family relationships between persons having an interest in the property and other persons. The term family relationship is currently undefined.

Item 41

151 This item inserts new subsection (3) into section 10 of the Crimes (Superannuation Benefits) Act. The item inserts a tracing rule that will allow family relationships to be traced through the definitions of 'child' and 'de facto partner' as they relate to a person for the purposes of subparagraph 10(2)(e) of the Crimes (Superannuation Benefits) Act. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

152 This item also inserts new subsection (4) into section 10 of the Crimes (Superannuation Benefits) Act which inserts the key definition of 'child'. This will extend the range of persons who can be considered a child of a person under the Crimes (Superannuation Benefits) Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

153 The overall effect of this item is to indicate (but not limit) the types of family relationships the court may have regard to in determining whether or not property is subject to the effective control of a person.

Item 42

154 This item inserts an application provision which provides that the amendments to the Crimes (Superannuation Benefits) Act being inserted by Item 41 of this Schedule will apply to an application for a superannuation order or restraining order made on or after commencement of this Schedule.

155 Regardless of whether an application for an order is made prior to, on or after the commencement of this Schedule, a court may have regard to the family relationships of persons with an interest in property and other persons when determining whether property is subject to the effective control of a person. In any case the court is not required to have regard to family relationships. In applications for an order made prior to the commencement of this Schedule, a court would need to rely on its own interpretation of family relationships. In applications for an order made on or after the commencement of this Schedule, a court could rely on the definition of family relationships (which is not exhaustive) as inserted by Item 41 of this Schedule.

Customs Act 1901

156 The Customs Act 1901 contains a range of provisions relating to the payment of duty on imported goods, the application of trade measures, the movement of people and goods in and out of Australia, and protection of Australia's border and maritime environments. The amendments indicate (but do not limit) the types of family relationships the court may have regard to in determining who is a member of a person's family for the purposes of the valuation of goods, establishing effective control of goods, issues related to persons detained by a Customs officer, and establishing whether anti-dumping measures may be imposed on certain imported goods.

Item 43

157 This item inserts the key definition of 'child' into subsection 4(1) of the Customs Act. This will extend the range of persons who can be considered a child of a person under the Customs Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 44

158 This item inserts the key definition of 'parent' into subsection 4(1) of the Customs Act to extend the range of persons under the Customs Act who can be considered the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 43 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 45

159 This item inserts new section 4AAA into the Customs Act. The item inserts a tracing rule that will allow the members of a person's family, referred to throughout the Customs Act, to be traced through the definitions of 'child' and 'de facto partner'. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 46

160 This item repeals and substitutes subparagraph 154(3)(a)(i) of the Customs Act. This item removes the phrase 'connected by a blood relationship or by marriage or by adoption' and inserts the phrase 'members of the same family'. The new phrase is consistent with a WTO Valuation Agreement. It indicates (but does not limit) the types of family relationships Customs officers may have regard to in determining who is a member of a person's family for the purposes of the valuation of goods under Division 2 of the Customs Act.

Item 47

161 This item inserts a note into subsection 154(3) of the Customs Act which refers the reader's attention to section 4AAA (which is being inserted by Item 45 of this Schedule) for assistance in determining who is a member of a family under subparagraph 154(3)(a)(i) as will be inserted by Item 46 of this Schedule. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 48

162 This item inserts the same note at the end of both sections 219ZJB and 219ZJC of the Customs Act, which has the same effect described in Item 47 of this Schedule but in relation to determining who a family member of a person detained under those sections. This is relevant in determining who a detaining Customs officer may contact where a detained person wishes to have a family member notified of the person's detention.

Item 49

163 This item inserts new subsection 243AB(3) into the Customs Act which refers to the tracing rule to be inserted by Item 45 for the purpose of determining a family relationship under subparagraph 243AB(2)(e). Property in the control of a family member of a person may be considered, under certain circumstances, to be in the effective control of a person. This property can be the subject of a restraining order where proceedings for the payment of pecuniary penalties against a person who has engaged in prescribed narcotics dealings under Part XIII of the Customs Act have been instituted under section 243B of the Customs Act.

Item 50

164 This item repeals and substitutes subparagraph 269TAA(4)(a)(i) of the Customs Act. This item removes the phrase 'connected by a blood relationship or by marriage or by adoption' and inserts the phrase 'members of the same family', for the purposes of determining who is a family member, and hence whether two people are deemed to be 'associates' of each other, under Part XVB of the Customs Act. If, among other things, two people are associates, it is possible that the purchase or sale of goods may not be treated as an 'arms length transaction' under section 269TAA of the Customs Act. It is necessary to establish whether certain transactions are arms length in nature in determining whether the goods exported to Australia have been dumped. If such dumped goods are found to have caused material injury to the Australian industry producing like goods, then anti-dumping measures may be imposed on those dumped goods.

Item 51

165 This item inserts a note at the end of subsection 269TAA(4) of the Customs Act which has the same effect described in Item 47 of this Schedule but in relation to determining who is a member of a family under new subparagraph 269TAA(4)(a)(i) inserted by Item 50 of this Schedule. Section 4AAA will be referred to in assisting in the determination of whether two persons are deemed to be associates of each other for the purposes of Part XVB of the Customs Act.

Item 52

166 This item sets out the application provisions in relation to the amendments to the Customs Act.

167 Subitem 52(1) sets out the application provision which is required in order to ensure that the valuation of goods imported into Australia before the commencement of proposed new subparagraph 154(3)(a)(i) is not retrospectively affected by the proposed amendment.

168 Goods may be imported into Australia prior to the commencement of proposed new subsection 154(3)(a)(i), but the customs value of the goods may not be determined by a Collector until after the commencement of proposed new subsection 154(3)(a)(i). The application provision ensures that a Collector will determine the value of imported goods by reference to the provision in force at the time the goods were imported.

169 Subitem 52(2) sets out the application provision which is required in order the ensure that an application for an order against property under Division 3 of Part XIII of the Customs Act made prior to the commencement of the extended concept of family through the tracing rule in new section 4AAA, is not affected by the new tracing rule. Such an order may only be applied for if a proceeding for the recovery of a pecuniary penalty under section 243B in Division 3 has been instituted. Therefore, the new tracing rule will only apply in respect of proceedings instituted under section 243B after the commencement of the new tracing rule.

High Court Justices (Long Leave Payments) Act 1979

170 The High Court Justices (Long Leave Payments) Act 1979 (the HC Justices Leave Payments Act) makes provision for payments in lieu of long leave on the retirement or death of Justices of the High Court. The amendments to the HC Justices Leave Payments Act that are described in this Schedule will allow for the payment of any unpaid long service leave on the death of a Justice of the High Court, to a person who was the Justice's de facto partner at the time of the Justice's death.

Item 53

171 This item deletes the phrase 'widow or widower' wherever it occurs in paragraphs 5(2)(a) and (b) of the HC Justices Leave Payments Act and substitutes it with the phrase 'surviving spouse or de facto partner'. A description of the definition of the term 'de facto partner' can be found with reference to the Acts Interpretation Act and the Key Definition and Concepts Section of this Explanatory Memorandum.

Item 54

172 This item inserts paragraph (2A) in subsection 5(2) of the HC Justices Leave Payments Act to address the possible circumstance where a Justice leaves more than one surviving spouse or de facto partner. In this circumstance the Attorney-General has the discretion to distribute the amount between or among the surviving spouse or de facto partner(s). This discretionary power mirrors the existing discretionary power that the Attorney-General has in relation to the Justice being survived only by dependants and the distribution of an amount of money amongst them.

Item 55

173 This item inserts a new subsection (5) into section 5 of the HC Justices Leave Payments Act to stipulate that the term 'surviving spouse or de facto partner' applies only to the person(s) who were in such a relationship with a Justice immediately before the Justice's death.

Item 56

174 This item provides that the amendments of the HC Justices Leave Payments Act apply in respect of a Justice who dies on or after the commencement of this item. As the entitlement to a payment arises on the death of a Justice, this ensures that the entitlement to a payment is determined under the law as in force when the entitlement arises.

Judges (Long Leave Payments) Act 1979

175 The Judges (Long Leave Payments) Act 1979 (the Judges Leave Payment Act) makes provision for payments in lieu of long leave on the retirement or death of judges of the Federal Court and Family Court. The amendments to the Judges Leave Payment Act that are described in this Schedule will allow for the payment of any unpaid long service leave on the death of a Federal Court or Family Court judge to a person who was the judge's de facto partner at the time of the judge's death.

Item 57

176 This item deletes the phrase 'widow or widower' wherever it occurs in paragraphs 5(2)(a) and (b) of the Judges Leave Payment Act and substitutes it with the phrase 'surviving spouse or de facto partner'. A description of the definition of the term 'de facto partner' can be found with reference to the Acts Interpretation Act and the Key Definition and Concepts Section of this Explanatory Memorandum.

Item 58

177 This item inserts paragraph (2A) in subsection 5(2) of the Judges Leave Payment Act to address the possible circumstance where a Justice leaves more than one surviving spouse or de facto partner. In this circumstance the Attorney-General has the discretion to distribute the amount between or among the surviving spouse or de facto partner(s). This discretionary power mirrors the existing discretionary power that the Attorney-General has in relation to the Judge being survived only by dependants and the distribution of an amount of money amongst them.

Item 59

178 This item inserts a new subsection (5) into section 5 of the Judges Leave Payment Act to stipulate that the term 'surviving spouse or de facto partner' applies only to person(s) who was/were in such a relationship with a Judge immediately before the Judge's death.

Item 60

179 This item provides that the amendments of the Judges Leave Payment Act apply in respect of a Judge who dies on or after the commencement of this Schedule. As the entitlement to a payment arises on the death of a Judge, this ensures that the entitlement to a payment is determined under the law as in force when the entitlement arises.

Passenger Movement Charge Collection Act 1978

180 The Passenger Movement Charge Collection Act 1978 (the Passenger Movement Act) is an Act relating to the passenger movement charge imposed in respect of the departure of people from Australia. The Passenger Movement Act sets out when a person who is departing Australia is liable to pay the passenger movement charge, how that charge is collected and refunded, and the persons who are exempt from paying the passenger movement charge.

Item 61

181 This item replaces the definition of 'child' with the key definition of 'child' in section 3 of the Passenger Movement Act. This will extend the range of persons who can be considered a child of a person under the Passenger Movement Act to include a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 62

182 This item inserts a definition of 'de facto partner' into section 3 of the Passenger Movement Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. This definition extends the range of individuals who can be considered the de facto partner of a person the Passenger Movement Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 63

183 This item removes the current definition of 'spouse' in section 3 of the Passenger Movement Act and replaces it with a new definition that defines the 'spouse' of a person as including a 'de facto partner' of a person. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 64

184 This item inserts the key definition of 'stepchild' into section 3 of the Passenger Movement Act. It extends the range of persons who can be considered a stepchild in the Passenger Movement Act to include someone who would be considered the stepchild of a person but for the fact that the person and the other member of a de facto relationship are not married. A description of the key definition of a 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Proceeds of Crime Act 2002

185 The Proceeds of Crime Act 2002 provides a scheme to trace, restrain and confiscate the proceeds of crimes against Commonwealth laws. It can sometimes also be used to confiscate the proceeds of crimes against foreign laws. The Proceeds of Crime Act also contains provisions for the confiscation of proceeds obtained by a person through the exploitation of their criminal notoriety.

Item 65

186 This item deletes the term '(including de facto spouse)' and replaces it with the term 'or de facto partner' in paragraph (c) of both subsection 180(1) and subsection 181(1). This item broadens the examples of people who can be examined (the Proceeds of Crime Act already includes 'any person' in these sub-sections and may already include people within the definition of 'de facto partner') in relation to restraining orders and the confirmation of forfeiture.

Item 66

187 This item inserts a new subsection (6) into section 337 of the Proceeds of Crime Act. The item inserts a tracing rule that will allow the family relationships of a person to be traced through the definitions of 'child' and 'de facto partner'. This will be used in determining effective control of property under section 337. Property which is effectively controlled by a person is subject to restraining orders and other orders under the Proceeds of Crime Act. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 67

This item inserts the key definition of 'child' into section 338 of the Proceeds of Crime Act. This will ensure that the range of persons who can be considered a child of a person under the POCA includes a child who is a product of a relationship a person has or had as a couple with another person. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 68

188 This item inserts a definition of 'de facto partner' into section 338 of the Proceeds of Crime Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. This definition extends the range of individuals who can be considered the de facto partner of a person under the POCA. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 69

189 This item ensures that the system of including asterisks alongside defined terms in the Proceeds of Crime Act is maintained for 'de facto partner'.

Item 70

190 This item ensures that the system of including asterisks alongside defined terms in the Proceeds of Crime Act is maintained for 'child'.

Item 71

191 This item inserts the key definition of 'parent' into section 338 of the Proceeds of Crime Act to extend the range of persons who can be considered the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 67 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 72

192 This item provides that the amendments to the Proceeds of Crime Act only apply in relation to proceedings under the Proceeds of Crime Act made on or after the commencement of this Schedule. Where the Proceeds of Crime Act includes references to people and relationships, and those references are amended by this Schedule, the amendments in this Schedule are not intended to cause the application of the Proceeds of Crime Act to be constrained in any way for proceedings commenced prior to the commencement date of the amendments in this Schedule.

Service and Execution of Process Act 1992

193 The Service and Execution of Process Act 1992 (the SEP Act) regulates the service and execution of one State or Territory's process and the enforcement of judgments in a State or Territory other than the one in which it was issued.

Item 73

194 This item inserts the key definition of 'child' into section 95 of the SEP Act. This will extend the range of persons who can be considered a child of a person under Division 3 of Part 5 of the SEP Act to include a child who is a product of a relationship a person has or had as a couple with another person for the purposes of section 96 of the SEP Act, as explained at Item 75. A description of the key definition of a 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 74

195 This item inserts the key definition of 'parent' into section 95 of the SEP Act to extend the range of persons who can be considered the parent of a person to include the parent of a child within the meaning of the definition inserted by Item 73 for the purposes of section 96 of the SEP Act, as explained at Item 75 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 75

196 This item inserts a new subsection (5) into section 96 of the SEP Act. The item inserts a tracing rule that will allow the members of a witness's family to be traced through the definitions of 'child' and 'de facto partner' for the purposes of section 96. Section 96 outlines the circumstances in which courts may make suppression orders in proceedings under sections 83 and 86 of the SEP Act. One of those circumstances is where the court is satisfied that publication of a report of the proceedings would give rise to a substantial risk that a member of a witness's family would die, suffer personal injury or have their property damaged. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Sex Discrimination Act 1984

197 The Sex Discrimination Act 1984 provides protection against discrimination on the grounds of sex, marital status, pregnancy, potential pregnancy in a range of areas of public life. Section 7A defines discrimination on the ground of family responsibilities. Subsection 14(3A) makes it unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee.

Item 76

198 This item repeals the current definition of 'child' in subsection 4A(2) of the Sex Discrimination Act and replaces it with the key definition of 'child'. The new definition expands the ordinary meaning of child to include the categories of children included in the previous definition, and in addition children who are the product of a relationship that a person has or had as a couple with another person (whether of the same sex or a different sex).

199 The objective of extending the definition of 'child' is to ensure that a child who is the product of a same-sex relationship is in the same position as a child who is a product of an opposite-sex relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 77

200 This item inserts a definition of 'de facto partner' into subsection 4A(2) of the Sex Discrimination Act which provides that 'de facto partner' for the purposes for the Sex Discrimination Act means a de facto partner within the meaning of the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 78

201 This item inserts the key definition of 'parent' into subsection 4A(2) of the Sex Discrimination Act which provides that without limiting who is a parent of a person, someone is the parent of a child because paragraph (b) of the definition of a 'child'.

202 The insertion of this definition aims to ensure that both members of a couple are recognised as parents of the child where that child is the product of the relationship. This definition draws on elements of the key definition of 'parent'. A description of the definition can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 79

203 This item repeals the existing definition of 'spouse' and inserts a new definition of 'spouse' into subsection 4A(2) of the Sex Discrimination Act which takes account of the new definition of 'de facto partner' and to include a former de facto partner.

Item 80

204 This item inserts the key definition of 'stepchild' into subsection 4A(2) of the Sex Discrimination Act. This new term is defined to ensure that a child of an opposite-sex or same-sex de facto relationship is considered the step-child of a new partner who is in a de facto relationship with a person from the original relationship. This definition seeks to address a situation where a person would be considered a step-child but for the parent of the child being legally married to the partner. A description of the definition of 'step-child' can be found in the Key Definition and Concepts Sections of this Explanatory Memorandum.

Item 81

205 This item inserts a new subsection 4A(3) into the Sex Discrimination Act. This clause is a tracing rule that provides that anyone else who would be a relative of a person because of paragraph (b) of the definition of 'child' in subsection (2) then other relationships are to be traced to or through the person on the basis that the person is the child of the other person. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 82

206 This item inserts a new subsection 9(10A) into the Sex Discrimination Act. Section 9 is designed to ensure that the validity of the Sex Discrimination Act is supported to the maximum extent possible by all available Commonwealth constitutional power and that the legislation does not purport to operate in areas where the Commonwealth does not have constitutional power.

207 Subsection 9(10A) lists the international instruments that are relied upon as a Constitutional basis under Article 51(xxix) of the Constitution in enacting subsection 14(3A).

208 Subsection 9(10A) indicates that subsection 14(3A) has effect in relation to discrimination involving dismissal of employees on the ground of family responsibilities to the extent that the provisions implement Australia's responsibilities under certain international instruments. These are the:

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International Covenant on Civil and Political Rights (ICCPR);

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International Covenant on Economic, Social and Cultural Rights (ICESCR);

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Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958 (ILO 111), and

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Convention on the Rights of the Child (CRC).

209 The ICCPR contains two Articles directed at prohibiting discriminatory treatment and ensuring equal access to civil and political rights. Article 2(1) requires Parties not to discriminate in the application of the rights recognised in the Covenant. Article 26 of the ICCPR protects the right to equality before the law and the right to the equal protection of the law without any discrimination. Discrimination on the ground of sexual preference is considered to be prohibited by these provisions.

210 Article 2(2) of ICESCR is similar to article 2(1) of the ICCPR, and prohibits discrimination in implementing the rights enunciated in the Covenant on the same list of grounds. Discrimination on the ground of sexual preference is considered to be prohibited by this provision.

211 ILO 111 requires Parties to it to pursue policies designed to eliminate discrimination in respect of employment and occupation. Under the Convention, discrimination includes distinctions that are declared by Parties to it. Sexual preference has been declared as such a distinction in the Human Rights and Equal Opportunity Commission Regulations 1989.

212 Article 5 of the CRC requires Parties to respect the rights, responsibilities and duties of parents, legal guardians or other persons legally responsible for a child. Article 18(2) calls on Parties to provide assistance to parents and legal guardians in the performance of their child-rearing responsibilities. These provisions apply equally to parents and legal guardians of both genders and equally to those in same-sex and opposite-sex relationships.

Item 83

213 This item adds the words 'or 10A' at the end of subsection 10(1) of the Sex Discrimination Act. Section 10 of the Sex Discrimination Act is designed to ensure that State and Territory legislation about sex discrimination can continue to operate concurrently with the Sex Discrimination Act. That section applies to the extent that the Act does not rely on international treaty obligations under subsection 9(10). This item makes it clear that section 10 similarly does not apply to the extent that the Act has effect by virtue of new subsection 9(10A).

Item 84

214 This item inserts a new section 11A into the Sex Discrimination Act. This item is designed to ensure that State and Territory legislation about discrimination involving dismissal of employees on the ground of family responsibilities can continue to operate concurrently with the Sex Discrimination Act.

Witness Protection Act 1994

215 The Witness Protection Act 1994 establishes a National Witness Protection Program (NWPP), operated by the Australian Federal Police. The Witness Protection Act sets out procedures governing the placement and removal of witnesses from the NWPP, including new identities. The Witness Protection Act also enables foreign witnesses to be placed on the NWPP in certain circumstances.

Item 85

216 This item inserts a definition of a 'parent' into subsection 3 of the Witness Protection Act. The item combines the key definition of 'child' and the key definition of 'parent'. This will extend the range of persons who can be considered a child of a person under the Witness Protection Act to include a child who is a product of a relationship a person has or had as a couple with another person and extend the range of persons who can be considered the parent of a person to include the parent of a child within the meaning of this definition of 'parent'. A description of the key definitions of a 'child' and a 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 86

217 This item inserts a power for the Governor-General to make regulations of a transitional nature that relate to amendments made by this Schedule or any other Schedule to the Act.