House of Representatives

Explanatory Memorandum

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

Schedule 5 - Education, Employment and Workplace Relations amendments

312 This Schedule contains amendments to the following Acts within the Education, Employment and Workplace Relations portfolio to remove differential treatment of same-sex couples and their children:

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Education Services for Overseas Students Act 2000

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Higher Education Support Act 2003

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Judicial and Statutory Officers (Remuneration and Allowances) Act

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Safety, Rehabilitation and Compensation Act 1988

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Seafarers Rehabilitation and Compensation Act 1988 , and

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Student Assistance Act 1973 .

Education Services for Overseas Students Act 2000

313 The Education Services for Overseas Students Act 2000 (the ESOS Act) protects Australia's reputation for delivering quality education services and the interests of overseas students, by setting minimum standards and providing tuition and financial assurance. The Bill amends the definition of the term 'associate' in the ESOS Act to replace the term 'de facto spouse' with 'de facto partner' and insert definitions of the terms 'parent' and 'child' to describe the children born into a family, where only one parent is linked biologically to them or is their birth mother.

Item 1

314 This item amends the definition of 'associate' in subsection 6(1) of the ESOS Act by replacing the term 'de facto spouse' with 'de facto partner'. This will extend the range of persons who can be considered to be the associate of a person to include a person within the definition of 'de facto partner' to be inserted by Item 3.

Item 2

315 This item inserts the key definition of 'child' into subsection 6(7) of the ESOS Act to extend the range of persons who can be considered to be the associate of a person to include a child who is the product of a relationship the person has or had as a couple with another person. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 3

316 This item inserts a definition of 'de facto partner' into subsection 6(7) of the ESOS 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 persons who can be considered to be the associate 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 4

317 This item inserts the key definition of 'parent' into subsection 6(7) of the ESOS Act to extend the range of persons who can be considered to be the associate of a person to include the parent of a child within the meaning of the definition inserted by Item 2. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 5

318 This item inserts subsection 6(8) into the ESOS Act. Subsection 6(8) is a tracing rule that allows relationships within the meaning of 'sibling' in paragraph 6(1)(d) of the ESOS Act to be traced through the definitions of 'parent' and 'child'. This means in relation to a child, the other children of the parent are that child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Higher Education Support Act 2003

319 The Higher Education Support Act 2003 (the HES Act) provides for the Commonwealth to give financial support for higher education through grants and other payments principally made to higher education providers and through financial assistance to students. This Schedule will amend the definition of 'overseas student' in the HES Act to clarify that the definition does not include de facto partners of New Zealand consular representatives and their dependent relatives, as well as the spouses of those representatives.

Item 6

320 This item inserts into clause 1 of Schedule 1 of the HES Act a '(1)' before the words 'In this Act' as a consequence of amendments made by Item 9.

Item 7

321 This item amends the definition of 'overseas student' within Clause 1 of Schedule 1 of the HES Act by inserting a reference after the word 'spouse' to the key definition of 'de facto partner' in the Acts Interpretation Act. The insertion of this reference expands the range of persons who are not to be considered an 'overseas student' for the purposes of the HES Act to include someone who is in a same-sex relationship with a diplomatic or consular representative of New Zealand. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 8

322 This item inserts a note at the end of the definition of 'overseas student' in Clause 1 of Schedule 1 of the HES Act indicating that subclause (2) of Schedule 1 of the HES Act (inserted by Item 9) may be relevant in determining relationships for the purposes of paragraph (e) of the definition of 'overseas student'.

Item 9

323 This item inserts new subclauses (2) and (3) into Schedule 1 to the HES Act. Subclause (2) extends the term 'dependent relative' to include the dependent relatives of a person who is in a same-sex relationship with a diplomatic or consular representative of New Zealand and the child of that person who is a child within the meaning of the key definition of child in subclause (3).

324 Paragraphs (2)(a) and (2)(b) of Schedule 1 of the HES Act provides that 'dependent relative' in paragraph (e) of Clause 1 of Schedule 1 includes:

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an exnuptial or adoptive child of the representative, or someone of whom the representative is an exnuptial or adoptive child

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someone who is a child of the representative, or of whom the representative is a child, because of the key definition of 'child' in subclause (3).

A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

325 Paragraph (2)(c) is a tracing rule that allows relatives traced through or to relationships within paragraphs 2(a) and 2(b) to be considered a 'dependent relative' within the meaning of paragraph (e) of Clause 1 of Schedule 1 of the HES Act. For example, in relation to a child, the brother of the parent is that child's uncle. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Judicial and Statutory Officers (Remuneration and Allowances) Act 1984

326 The Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 (the JSO Act) provides for the remuneration and allowances payable to the holders of certain judicial and statutory offices.

Item 10

327 This item inserts subsection 4(4B) into the JSO Act. Subsection 4(4B) provides that 'spouse' includes a de facto partner of a person within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act for the purposes of subsection 4(4A) of the JSO Act. This expands the meaning of 'spouse' in subsection 4(4A) which deals with travelling allowances that are payable to Justices of the High Court if their spouses accompany them and the cost of the travel of the spouse is borne by the Commonwealth. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Safety, Rehabilitation and Compensation Act 1988

328 The Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) establishes a scheme of rehabilitation and compensation for employees of the Commonwealth, Commonwealth Authorities and licensed private sector corporations who are injured in the course of their employment. The SRC Act's primary objective is to minimise the human and financial cost of work-related injury and disease while at the same time providing appropriate compensation and support for employees and their families, in particular for persons who are dependent on the employee.

329 The SRC Act does not currently provide compensation to a spouse of an employee of the same sex or to children from such relationships. The proposed amendments therefore provide equal access to compensation for same sex partners of an employee and their families.

330 The provisions also update gender specific terminology and outdated terms throughout the Act to be consistent with anti-discrimination policy.

Item 11

331 This item inserts the key definition of 'child' into subsection 4(1) of the SRC Act. The item makes clear that the definition of 'child' being inserted into the SRC Act extends the existing range of persons who can be considered as the child of a person for the purposes of the SRC Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 12

332 This item inserts a definition of 'de facto partner' into subsection 4(1) of the SRC 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 persons who can be considered to be the spouse of a person as a consequence of the amendments made by Item 16 to the definition of spouse. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 13

333 This item amends paragraph (a) of the definition of 'dependant' in subsection 4(1) of the SRC Act to replace gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 11 to be considered a 'dependant' of that person for the purposes of the SRC Act.

Item 14

334 This item inserts a note at the end of the definition of 'dependant' in subsection 10(2) of the SRC Act to direct the reader to subsection 4(2) of the SRC Act, which is inserted by Item 19.

Item 15

335 This item inserts the key definition of 'parent' in subsection 4(1) of the SRC Act to extend the range of persons who can be considered to be parent of a child within the meaning of the key definition of 'child' inserted by Item 11. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 16

336 This item removes paragraph (a) of the definition of 'spouse' in subsection 4(1) of the SRC Act and inserts a reference to the definition of 'de facto partner' inserted by Item 12. It extends the meaning of 'spouse' to include (in relation to an employee or deceased employee) a de facto partner of the employee whether of the same or opposite sex to the employee.

337 The existing requirement that a spouse be living with the employee is now contained in the definition of 'de facto partner' which is inserted by Item 12. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 17

338 This item inserts the key definition of 'stepchild' in subsection 4(1) of the SRC Act. This extends the range of persons who can be considered to be the 'stepchild' to include a person who would be the stepchild of a person who is the de facto partner of a parent of the child, except that the person and the parent are not legally married. A description of the definition of 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 18

339 This item inserts the key definition of 'step-parent' in subsection 4(1) of the SRC Act. This extends the range of persons who can be considered to be the 'step-parent' to include a person who would be the step-parent of someone who is child of the de facto partner of the person, except that the person and the parent are not legally married. A description of the definition of 'step-parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 19

340 Generally, subsection 4(2) of the SRC Act is a tracing rule providing that relationships referred to in paragraph (a) of the definition of 'dependant' include relationships that are traced through 'illegitimate relationships or relationships by adoption.'

341 This item replaces subsection 4(2) with a new subsection 4(2) to allow relationships referred to in the SRC Act to include relationships between de facto partners or relationships of parent and child that arise because of adoption, the definitions of 'parent' and 'child' and ex-nuptial relationships. It also includes a tracing rule that allows relationships traced through adoption, the definitions of 'parent' and 'child' and ex-nuptial relationships to be recognised for the purposes of the SRC Act. For example, in relation to a child, the other children of the parent are that child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

342 This item also replaces outdated references to 'illegitimate' relationships with 'ex-nuptial' relationships.

Items 20 and 21

343 These items amend subsection 4(6) and subparagraph 19(12)(b)(i) of the SRC Act to replace the gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 11 to be considered as a child of that person for the purposes of subsection 4(6) and subparagraph 19(12)(b)(i) of the SRC Act.

Items 22, 24 and 25

344 These items insert notes at the end of subsections 19(12), 29(2) and 29(4) of the SRC Act to direct the reader to the tracing rule contained in subsection 4(2) of the SRC Act, which is relevant to subparagraph 19(12)(b)(i), paragraph 29(2)(d) and paragraph 29(4)(f).

Item 23

345 Subsection 19(13) of the SRC Act is a tracing rule that relationships referred to in the definition of 'prescribed person' in subsection (12) of the SRC Act shall be taken to include illegitimate relationships, relationships by adoption and relationships that are traced through illegitimate relationships or relationships by adoption.

346 This item repeals subsection 19(13) as the insertion of the tracing rule made by Item 19 will make this provision unnecessary.

Item 26

347 This item provides that amendments to the SRC Act made by Schedule 5 to the Bill only apply in respect of a payment made under the SRC Act on or after the commencement of the amendments. It also provides that amendments to the SRC Act made by Schedule 5 to the Bill only apply in relation to lump sum benefits which are payable in respect of the death of a person if the death occurs on or after the commencement of the amendments.

Seafarers Rehabilitation and Compensation Act 1992

348 The Seafarers Rehabilitation and Compensation Act 1988 (the Seafarers Act) establishes an industry specific scheme of rehabilitation and compensation for seafaring employees who are injured in the course of their employment. The Seafarers Act's primary objective is to minimise the human and financial cost of work-related injury and disease while at the same time providing appropriate compensation and support for employees and their families, in particular for persons who are dependent on the employee.

349 The Seafarers Act does not currently provide compensation to a spouse of an employee of the same sex or to children from such relationships. The amendments therefore provide equal access to compensation for same sex partners of an employee and their families.

350 The provisions also update gender-specific terminology to be consistent with anti-discrimination policy.

Item 27

351 This item inserts the key definition of 'child' into section 3 of the Seafarers Act. The item makes clear that the definition of 'child' being inserted into the Seafarers Act extends the existing range of persons who can be considered as the child of a person for the purposes of the Seafarers Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 28

352 This item inserts a definition of 'de facto partner' into section 3 of the Seafarers 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 persons who can be considered to be the spouse of a person as a consequence of the amendments made by Item 32 to the definition of spouse. 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 29

353 This item amends paragraph (b) of the definition of 'dependant' in section 3 of the Seafarers Act to replace gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 27 to be considered a 'dependant' of that person for the purposes of the Seafarers Act.

Item 30

354 This item inserts the key definition of 'parent' in section 3 of the Seafarers Act to extend the range of persons who can be considered to be parent of a child within the meaning of the key definition of 'child' inserted by Item 27. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 31

355 This item amends subparagraph (b)(i) of the definition of 'prescribed person' in section 3 of the Seafarers Act to replace gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of an employee within the meaning of the key definition of 'child' inserted by Item 27 to be considered a 'prescribed person' in relation to an employee for the purposes of the Seafarers Act.

Item 32

356 This item removes paragraph (a) of the definition of 'spouse' in section 3 of the Seafarers Act and inserts a reference to the key definition of 'de facto partner' inserted by Item 40. It extends the meaning of 'spouse' to include (in relation to an employee or deceased employee) a de facto partner of the employee whether of the same or opposite sex to the employee.

357 The existing requirement that a spouse be living with the employee is now contained in the definition of 'de facto partner' which is inserted by Item 28. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 33

358 This item inserts the key definition of 'stepchild' in section 3 of the Seafarers Act. This extends the range of persons who can be considered to be the 'stepchild' to include a person who would be the stepchild of a person who is the de facto partner of a parent of the child, except that the person and the parent are not legally married. A description of the definition of 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 34

359 This item inserts the key definition of 'step-parent' in section 3 of the Seafarers Act. This extends the range of persons who can be considered to be the 'step-parent' to include a person who would be the step-parent of someone who is a child of the de facto partner of the person, except that the person and the parent are not legally married. A description of the definition of 'step-parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 35

360 This item amends subsection 15(3) of the Seafarers Act to replace the gender-specific terms 'son or daughter' with the gender-neutral term 'child'. This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 27 to be considered a 'person who is wholly or partly dependant' on an employee for the purposes of the Seafarers Act.

Item 36

361 Section 16 of the Seafarers Act is a tracing rule providing that relationships referred to in paragraph (a) of the definition of 'dependant' include relationships that are traced through 'ex-nuptial relationships or relationships by adoption.'

362 This item replaces section 16 of the Seafarers Act to allow relationships referred to in the Seafarers Act to include relationships that arise because of adoption, the definitions of 'parent' and 'child' and ex-nuptial relationships. It includes a tracing rule that allows relationships traced through adoption, the definitions of 'parent' and 'child' and ex-nuptial relationships to be recognised for the purposes of the Seafarers Act. For example, in relation to a child, the other children of the parent are that child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 37 and 38

363 These items inserts notes at the end of subsections 43(3) and 43(5) of the Seafarers Act to direct the reader to the tracing rule contained in section 16 of the Seafarers Act, which is relevant to paragraph 43(3)(d) and paragraph 43(5)(f).

Item 39

364 This item provides that amendments to the Seafarers Act made by Schedule 5 to the Bill only apply in respect of a payment made under the Seafarers Act on or after the commencement of the amendments. It also provides that amendments to the Seafarers Act made by Schedule 5 to the Bill only apply in relation to lump sum benefits which are payable in respect of the death of a person if the death occurs on or after the commencement of the amendments.

Student Assistance Act 1973

365 The Student Assistance Act 1973 provides for the entitlement to various forms of student assistance benefits and recovery of student assistance debts.

Item 40

366 This item inserts the key definition of 'child' into subsection 43B(5) of the Student Assistance Act to extend the range of persons who can be considered to be the parent of a person for the purposes of waiving a debt incurred as a result of overpayment of an entitlement paid under the Student Assistance Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 41

367 This item amends paragraph (a) of the definition of 'parent' in subsection 43B(5) of the Student Assistance Act by inserting part of the key definition of 'parent'. This extends the range of persons who can be considered to be the parent of a person as a consequence of the insertion of the key definition of 'child'. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.