House of Representatives

Explanatory Memorandum

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

Schedule 6 - Families, Housing, Community Services and Indigenous Affairs amendments

368 This Schedule contains amendments to the following Acts within the Families, Housing, Community Services and Indigenous Affairs portfolio to remove differential treatment of same-sex de facto couples and their children:

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Aboriginal Land Grant (Jervis Bay Territory) Act 1986

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Corporations (Aboriginal and Torres Strait Islander) Act 2006

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A New Tax System (Family Assistance) Act 1999

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A New Tax System (Family Assistance ) ( Administration) Act 1999

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Social Security Act 1991

Part 1-Amendments commencing on the day after Royal Assent

Aboriginal Land Grant (Jervis Bay Territory) Act 1986

369 The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (the Land Grant Act) provides for the grant of land in the Jervis Bay Territory to the Wreck Bay Aboriginal Community and for the establishment of the Wreck Bay Aboriginal Community Council. The amendments to the Land Grant Act are necessary because under the current provisions of section 37 of the Act, the definitions of 'child', 'parent' 'relative' and 'spouse' mean that the operation of the Act is confined to opposite-sex relationships. This results in potential discrimination against same-sex couples and their children in relation to who is a relative of a member of the Wreck Bay Aboriginal Community Council.

Item 1

370 This item inserts the key definition of 'child' into subsection 37(1) of the Land Grant Act to expand who can be considered a child for the purposes of who is a relative of a person whose name is on the Register of Members of the Community Council. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 2

371 This item inserts the key definition of 'parent' into subsection 37(1) of the Land Grant Act to expand who can be considered a parent for the purposes of who is a relative of a person whose name is on the Register of Members of the Community Council. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 3

372 This item inserts a definition of 'de facto partner' into subsection 37(1) of the Land Grant 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 expands the range of persons for the purposes of who is a relative of a person whose name is on the Register of Members of the Community Council. 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

373 This item inserts subsection 37(5) into the Land Grant Act. Subsection 37(5) of the Land Grant Act is a tracing rule that allows relationships within the meaning of 'relative' in subsection 37(1) to be traced through the definition of child. 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.

Corporations (Aboriginal and Torres Strait Islander) Act 2006

374 The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (the CATSI Act) is a special statute of incorporation for Aboriginal and Torres Strait Islander peoples that takes account of the special risks and requirements of the Indigenous corporate sector. It aligns with modern corporate governance standards and corporations law to improve governance and capacity in the Indigenous corporate sector. It provides sufficient flexibility for corporations to accommodate specific cultural practices and tailoring to reflect the needs and circumstances of Indigenous groups. It also recognises the role of registered native title bodies corporate under native title legislation.

375 The amendments to the CATSI Act remove discrimination against same-sex couples and their children by changing relationship definitions in the Act.

Item 5

376 This item removes the reference to 'de facto spouses' in paragraph 293-1(2)(d) of the CATSI Act as a consequence of the amendments made by Items 8 and 10.

Item 6

377 This item inserts new section 694-115 into the CATSI Act. Section 694-115 of the CATSI Act is a tracing rule that allows relationships (including the relationship of family) to be traced through the definitions of parent and child for the purposes of the CATSI Act.

378 Paragraphs 694-115(a) and 694-115(b) of the CATSI Act provide that relationships (including the relationship of family) are taken to include:

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relationships between de facto partners (within the meaning of the Acts Interpretation Act), and

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relationships that arise if someone is an exnuptial or adoptive child of a person or if someone is a child of a person because of the definition of 'child' in section 700-1 inserted by Item 7.

379 Paragraph (c) is a tracing rule that allows relationships traced through or to relationships within paragraphs (a) and (b) to be considered relationships (including the relationship of family) for the purposes of the CATSI 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.

Item 7

380 This item inserts the key definition of 'child' into section 700-1 of the CATSI Act to expand who can be considered a child for the purposes of the CATSI Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 8

381 This item repeals the unnecessary definition of 'de facto spouse' in section 700-1 of the CATSI Act as it is made redundant as a consequence of the insertion of the definition of 'spouse' by Item 10.

Item 9

382 This item inserts the key definition of 'parent' into section 700-1 of the CATSI Act to expand the range of persons who can be considered to be the parent of a child for the purposes of the CATSI Act. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 10

383 This item inserts a definition of 'spouse' into the CATSI Act that provides that 'spouse' includes a de facto partner within the meaning of the Acts Interpretation Act. This expands the range of person who can be considered to be a person's spouse for the purposes of the CATSI Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Part 2-Amendments commencing on 1 July 2009

A New Tax System (Family Assistance) Act 1999

384 The A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) sets out the eligibility rules for family assistance payments and details the various methods of calculating rate, depending on the individual's circumstances.

Items 11 and 12

385 These items insert definitions of 'relationship child' and 'relationship parent' into subsection 3(1). These terms will have the same meaning as in the Social Security Act 1991 (Social Security Act). These terms are defined in subsection 5(10) of the Social Security Act which is inserted by Items 57 and 58 of this Schedule.

Item 13

386 Subsection 22(2) of the Family Assistance Act provides that an individual is an FTB child of an adult if the individual is aged under 18 and:

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the adult is legally responsible for the day-to-day care, welfare and development of the individual

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the individual is in the adult's care, and

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the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

An individual can also be considered to be an FTB child if they are aged under 18 and there is a family law order, a registered parenting plan or parenting plan under the Family Law Act 1975 in force in relation to them and they are in the care of the adult who is supposed to care for them (and they meet the residence requirements).

387 It is not clear whether the non-biological same-sex parent of a child of a same-sex couple would be able to prove legal responsibility for a child in his or her care without a parenting order. This imposes a higher burden than on the birth mother and birth father (or adoptive parents) who do not need a parenting order to prove legal responsibility.

388 This item inserts new subsection 22(2A) of the Family Assistance Act to expand the range of individuals who can be the FTB child of an adult. New subsection 22(2A) of the Family Assistance Act provides that an individual is an FTB child of an adult if

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the individual is aged under 18

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the adult is the relationship parent of the individual

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there is no order of a court (such as a family law order) that stops the adult from being legally responsible for the day-to-day care, welfare and development of the individual

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the individual is in the adult's care, and

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the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

389 The effect of this amendment allows the 'relationship child' of a non-biological same-sex parent to be recognised as an FTB child of that parent. This is contingent on the criteria in new subsection 22A(2A) of the Family Assistance Act being met, including that there is no order of a court (such as a family law order) that stops the adult from being legally responsible for the day-to-day care, welfare and development of the individual.

Items 14 to 18

390 Section 23 of the Family Assistance Act provides that a child continues to be an FTB child or regular care child of an individual if the child ceases to be in the individual's care without consent and the individual takes reasonable steps to regain the care of a child. This provision currently operates where an individual is considered to be an FTB child of an adult for the purposes of subsections 22(2) and 22(3) of the Family Assistance Act. The effect is that the individual can continue to receive FTB in respect of the child for up to 14 weeks (the 'qualifying period') after care ceases.

391 These items amend section 23 of the Family Assistance Act to ensure that the provision applies where an individual is an FTB child of an adult by virtue of new subsection 22(2A) inserted by Item 13.

392 Item 17 inserts a definition of 'parent' into subsection 23(5) that provides that a 'parent' includes a relationship parent.

393 Item 18 inserts new subsection 23(6) which provides that if a child (other than an adopted child) is the relationship child of a person who is the product of the relationship, the two persons in the relationship are taken to be the child's only parents for the purposes of the definition of 'qualifying child' in subsection 23(5).

Item 19

394 Section 28 of the Family Assistance Act allows for the splitting of FTB between members of the same couple in certain blended family situations. The concept of an FTB child who is an 'immediate child' of an individual in this provision currently includes a natural or adopted child of the individual or a child for whom the individual is legally responsible. This item expands this concept to include a 'relationship child'.

Item 20

395 Section 36 of the Family Assistance Act sets out the circumstances in which an individual is eligible for the baby bonus. Under subsection 36(2), an individual who is a parent of a child is eligible for baby bonus provided other specified conditions are satisfied. This item inserts a new subsection 36(7) into the Family Assistance Act to expand who is considered a parent of a child to include to include a 'relationship parent'.

A New Tax System (Family Assistance ) ( Administration) Act 1999

396 The A New Tax System (Family Assistance ) ( Administration) Act 1999 (the Family Assistance (Administration) Act) contains administrative, procedural and technical rules that apply in relation to the administration of family assistance payments, for example claims and determinations.

Item 21

397 Subdivision CA of Division 4 of the Family Assistance (Administration) Act provides a mechanism for determining the eligibility of an individual to receive a special grandparent rate if they are determined to be conditionally eligible for child care benefit by fee reduction. Section 50R of the Family Assistance (Administration) Act provides that relationships between:

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an adopted child and his or her adoptive parent, and

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a step-child and his or her step-parent

are to be treated as if they were biological child-parent relationships for the purposes of determining whether an individual is a grandparent or great-grandparent of another person for the purposes of Subdivision CA of Division 4 of the Family Assistance (Administration) Act.

398 This item inserts paragraph 50R(1)(c) of the Family Assistance (Administration) Act to provide that the relationship between a 'relationship child' and his or her 'relationship parent' is also to be taken as a biological child-parent relationship. The effect of this insertion is that the parents of the 'relationship parent' of a 'relationship child' will be taken to be the grandparents of that relationship child.

399 Subsection 3(2) of the Family Assistance (Administration) Act provides that expressions used in the Family Assistance (Administration) Act that are defined in the Family Assistance Act. This means that 'relationship parent' and 'relationship child' in paragraph 50R(1) of the Family Assistance (Administration) Act will have the same meaning as in the Family Assistance Act.

Item 22

400 This item inserts a reference to 'relationship parent' into paragraphs (a) and (b) of the definition of 'step-parent' for the purposes of Subdivision CA of Divisions 4 of the Family Assistance (Administration) Act. Subsection 50R(2) of the Family Assistance (Administration) Act provides that the step-parent of a child means the person who is the current or former partner of the biological or adoptive parent of the child and is not the biological or adoptive parent of the child.

401 The insertion of the reference to 'relationship parent' in paragraph 50R(2)(a) will mean that the subsequent partner of a 'relationship parent' is the step-parent of any 'relationship child' of the 'relationship parent'. The insertion of the reference to a 'relationship parent' in paragraph 50R(2)(b) will mean that a 'relationship parent' is not considered to be a 'step-parent'. These amendments will bring this definition into line with how same-sex parents are treated in the key definition of 'step-parent' that is being inserted into various Acts by this Bill.

402 Subsection 3(2) of the Family Assistance (Administration) Act provides that expressions used in the Family Assistance (Administration) Act that are defined in the Family Assistance Act. This means that 'relationship parent' and 'relationship child' in paragraph 50R(1) of the Family Assistance (Administration) Act will have the same meaning as in the Family Assistance Act.

Social Security Act 1991

403 The Social Security Act 1991 provides for entitlement to, and rate of, social security payments which are intended for people who cannot adequately support themselves.

Item 23

404 This item inserts into subsection 4(1) of the Social Security Act a signpost to the definition of 'prohibited relationship' in subsections 4(12) and 4(13) of the Social Security Act inserted by Item 34.

Items 24, 25 and 26

405 The existing definition of 'member of a couple' in subsection 4(2) of the Social Security Act provides that a person is a 'member of a couple' if they are legally married to another person and are not living separately and apart from the other person on a permanent basis, or if they are

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living with a person of the opposite sex

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not legally married to that person

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in a marriage-like relationship with that person (in the Secretary's opinion which is formed as mentioned in subsections 4(3) and 4(3A) of the Social Security Act)

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over the age of consent applicable in the State or Territory in which they live, and

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not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .

This means that currently only persons who are married or in an opposite-sex de facto relationship are considered to be a 'member of a couple' for the purposes of the Social Security Act.

406 Item 24 inserts new paragraph 4(2)(aa) into the Social Security Act which provides for a person who is in a relationship (whether of the same or opposite sex) registered under a law of a State or Territory to be considered a 'member of a couple'. This means that registration of a relationship is conclusive evidence as to whether a person is a member of a couple with another person. New paragraph 4(2)(aa) of the Social Security Act will provide that a person is a 'member of a couple' if:

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the person is in a relationship with another person, whether the partner is of the same sex or different sex

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the relationship between the person and the partner is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act as a kind of relationship prescribed for the purposes of that subsection, and

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in the Secretary's opinion, the person is not living separately and apart from the partner on a permanent or indefinite basis.

407 Item 25 amends subparagraph 4(2)(b)(i) of the Social Security Act by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

408 Item 26 amends subparagraph 4(2)(b)(iii) of the Social Security Act by replacing the term 'marriage-like' with 'de facto'.

409 The effect of these amendments is to ensure that the definition of 'member of a couple', for the purposes of the Social Security Act, 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.

Items 27 and 28

410 Subparagraph 4(2)(b)(v) of the Social Security Act currently refers to a prohibited relationship for the purposes of section 23B of the Marriage Act. To allow for easy interpretation of what is a 'prohibited relationship', these items amend subsection 4(2) of the Social Security Act so that a prohibited relationship for the purposes of section 23B of the Marriage Act can be clearly specified in subsection 4(12) (see Item 34 of this Schedule.)

411 Item 27 amends subparagraph 5E(2)(b)(v) by removing the phrase 'for the purposes of section 23B of the Marriage Act 1961'.

412 Item 28 repeals the note in subsection 4(2) of the Social Security Act, as the information in note 2 is made redundant by the insertion of new subsection 4(12) as a consequence of Item 34, which inserts the meaning of 'prohibited relationship'.

Items 29 to 31

413 Subsection 4(3) of the Social Security Act contains criteria for the Secretary to have regard to in forming an opinion whether a person is a member of a couple for the purposes of paragraph 4(2)(a) and subparagraph 4(2)(b)(iii) of the Social Security Act. These amendments will enable same-sex and opposite-sex de facto couples to be considered as being in a de facto relationship for the purposes of subparagraph 4(2)(b)(iii) of the Social Security Act.

414 The criteria in subsection 4(3) of the Social Security Act are similar to the criteria in the key definition of 'de facto partner' within the meaning of the Acts Interpretation Act. It is for this reason that the key definition of 'de facto partner' will not be inserted into this section to retain the language already present in subsection 4(3) of the Social Security Act.

415 Item 29 inserts new subparagraph 4(2)(aa)(ii) in subsection 4(3) for the purposes of the Secretary forming an opinion about the relationship between two people.

416 Items 30 and 31 make amendments to criteria that the Secretary is to have regard to in forming an opinion as to whether a person is a member of a couple by inserting non-discriminatory language in subparagraph 4(3)(c)(i) and subparagraph 4(3)(e)(iv) of the Social Security Act to expand the meaning of the criteria, so it is relevant:

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whether the people hold themselves out in a de facto relationship with each other; and

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whether the people see their relationship as a de facto relationship.

The insertion of non-discriminatory language in subparagraph 4(3)(c)(i) and subparagraph 4(3)(e)(iv) of the Social Security Act is not intended to change the treatment of married or opposite-sex de facto couples.

Item 32

417 This item amends subsection 4(3A) of the Social Security Act as a consequence of amendments made by Item 26.

Item 33

418 This item amends paragraph 4(7)(a) of the Social Security Act to replace the words 'a matrimonial' with 'their' to remove marital status discrimination from determining whether two people are members of an 'illness separated couple' for the purposes of the Social Security Act.

Item 34

419 This item inserts a new subsection 4(12) in the Social Security Act that specifies what is a prohibited relationship for the purposes of the Social Security Act. This item is based on note 2 in subsection 4(2) of the Social Security Act (which is repealed by Item 28 of this Schedule which refers to the Marriage Act. The new definition will provide that a relationship between a person and

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an ancestor or a descendant, or

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a brother, sister, half-brother or half-sister

is to be considered a 'prohibited relationship' for the purposes of the Social Security Act.

420 This item also inserts a new subsection 4(13) in the Social Security Act to provide that a child who is, or has ever been, an adopted child of a person is taken to be the natural child of that person and the person is taken to be the natural parent of the child. These new subsections adopt the same approach as the definition of 'prohibited relationship' in subsection 23B(2) of the Marriage Act.

Item 35

421 This item inserts the key definition of 'child' into subsection 5(1) of the Social Security Act to expand who can be considered a child for the purposes of the Social Security Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 36

422 Subparagraph (a)(i) of the definition of 'parent' in subsection 5(1) of the Social Security Act currently provides that 'parent' means (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G), in relation to a young person, other than an adopted child-a natural parent of the young person.

423 This item removes the reference to young person and provides that 'parent' means (except in Part 2.11 and in the Youth Allowance Rate Calculator in section 1067G) in relation to a person, other than an adopted child, a natural parent or relationship parent of that person. The reference to 'young person' is removed because the meaning of parent is relevant to provisions about a person generally (as well as a young person).

Item 37

424 This item amends subparagraph 5(1)(a)(ii) of the Social Security Act replacing the words 'young person' with 'child'.

Items 38 and 39

425 Subparagraph (b) of the definition of 'parent' in subsection 5(1) of the Social Security Act defines 'parent' for the purposes of Part 2.11 and the Youth Allowance Rate Calculator in section 1067G of the Social Security Act. These items insert references to 'relationship parent' into subparagraph (b)(i) and subparagraph (b)(ii) of the definition of 'parent' in subsection 5(1) of the Social Security Act to include parents that are 'relationship parents'. The definition of 'relationship parent' is inserted by Item 9 of this Schedule.

Item 40 and 41

426 These items inserts signposts into subsection 5(1) of the Social Security Act to indicate that the terms 'relationship child' and 'relationship parent' have the meaning given by new subsection 5(25) of the Social Security Act (inserted by Item 47 of this Schedule), which defines the terms 'relationship child' and 'relationship parent'.

Item 42

427 This item inserts the key definition of 'step-child' in subsection 5(1) of the Social Security Act. This expands the range of persons who can be considered to be the 'step-child' to include a person who would be the step-child 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 'step-child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 43

428 This item inserts the key definition of 'step-parent' in subsection 5(1) of the Social Security Act. This expands 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 44

429 This item repeals the definition of 'substitute' care in subsection 5(1) of the Social Security Act as it is no longer referred to anywhere in the Social Security Act and is redundant.

Item 45

430 Subsection 5(2) of the Social Security Act provides that a young person is a 'dependent child' of an adult if the young person has not turned 16 and:

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the adult is legally responsible for the day-to-day care, welfare and development of the young person and the young person is in the adult's care, or

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the young person is not a dependent child of someone else who is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of that person, and the young person is wholly or substantially in the adult's care.

431 While the non-biological parent of a child of a same-sex couple may be able prove legal responsibility for a child in his or her care without a parenting order, they are generally not assumed to be legally responsible. This imposes a higher burden than that placed on a birth mother and birth father (or adoptive parents) who do not need a parenting order to prove legal responsibility.

432 This item inserts new paragraph 5(2)(aa) into the Social Security Act to expand the range of young persons who are taken to be the 'dependent child' of an adult. New paragraph 5(2)(aa) into the Social Security Act deems a young person to be a 'dependent child' of an adult if:

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they are not a dependent child of the adult under paragraph 5(2)(a) of the Social Security Act

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the adult is a relationship parent of the young person

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there is no order of a court (such as a family law order) that stops the adult from being legally responsible for the day-to-day care, welfare and development of the young person, and

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the young person is in the adult's care.

433 The effect of this insertion is that a 'relationship child' of a non-biological

same-sex parent can be recognised as the 'dependent child' of that parent. This is contingent on the criteria in new paragraph 5(2)(aa) into the Social Security Act being met, including that there is no order of a court (such as a family law order) that stops the adult from being legally responsible for the day-to-day care, welfare and development of the individual.

Item 46

This item inserts a reference to paragraph 5(2)(aa) into subparagraph 5(2)(b)(i) of the Social Security Act as a consequence of amendments made by Item 45 of this Schedule.

Item 47

434 This item inserts new subsection 5(25) of the Social Security Act, providing for definitions of 'relationship child' and 'relationship parent'. The definitions make use of the key definitions of 'child' inserted in

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section 5(1) of the Social Security Act,

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paragraph (b) of the definition of 'child' in section 1207A of the Social Security Act, and

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paragraph (b) of the definition of 'child' in subsection 1209R(5) of the Social Security Act.

435 These amendments provide that a 'relationship parent' is a person who is the parent of a child who is the product of the relationship between the person and the biological or adoptive parent. By the same operation, a 'relationship child' is a child who is the product of the relationship between the 'relationship parent' and the biological or adoptive parent.

Item 48

436 This item inserts into section 5E of the Social Security Act a '(1)' before the words 'A person' as a consequence of amendments made by Item 50 of this Schedule.

Item 49

437 The definition of 'parent' in subsection 5(1) of the Social Security Act (as amended by Items 36 to 39 of this Schedule) includes natural parents, adoptive parents and relationship parents. This item replaces the words 'natural parent, adoptive parent' in paragraph 5E(a) with the simpler term 'parent' so that it has the same meaning as the revised definition of 'parent' in subsection 5(1) of the Social Security Act.

Item 50

438 This item inserts subsection 5E(2) into the Social Security Act. Subsection 5E(2) is a tracing rule that allows relationships for the purposes of subparagraph 5E(1)(b)(i) of the Social Security Act to be traced to or through those relationships and considered as if they were a blood relationship. This expands who is considered to be a relative (other than a parent) for the purposes of the Social Security Act. This tracing rule applies where one person is the relationship child of a person or step-child of a person and that person is the step-parent.

439 This means in relation to a relationship 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.

Item 51

440 This item amends paragraph 8(8)(z) of the Social Security 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 definition of 'child' inserted by Item 35 and the definition of 'parent' (as amended by Items 36 to 39 of this Schedule) to be considered for the purposes of paragraph 8(8)(z) of the Social Security Act.

Item 52

441 This item inserts a note at the end of subsection 10B(3) of the Social Security Act that provides that paragraph (b) of the definition of 'parent' in subsection 5(1) of the Social Security Act is relevant to the term 'parent' in subsection 10B(3).

Item 53

442 This item inserts a reference to 'relationship child' into paragraph 14A(3)(a) of the Social Security Act, which expands the range of persons to whom the transfer of liquid assets may be taken to have not occurred for the purposes of section 14A of the Social Security Act to include a relationship child.

Item 54

443 This item makes a technical amendment to the term 'step child' in paragraph (a) of the definition of 'eligible descendant' in subsection 17A(1) of the Social Security Act to correct a drafting error.

Item 55

444 This item replaces the words 'natural parent, adoptive parent' in paragraph (a) of the definition of 'immediate family member' in paragraph 23(1) of the Social Security Act with the simpler term 'parent' (which includes natural parents, adoptive parents and relationship parents).

Item 56

445 This item inserts into subsection 23(1) of the Social Security Act a signpost to the definition of 'prohibited relationship' in subsections 4(12) and 4(13) of the Social Security Act, inserted by Item 50 of this Schedule.

Item 57 and 58

446 These items insert signposts into subsection 5(1) of the Social Security Act to indicate that the terms 'relationship child' and 'relationship parent' have the meaning given by new subsection 5(25) of the Social Security Act, which defines the terms 'relationship child' and 'relationship parent'.

Item 59

447 This item repeals the definition of 'widow' in subsection 23(1) of the Social Security Act as it is no longer used in the Social Security Act.

Item 60

448 This item amends paragraph 23(14)(a) of the Social Security Act to replace gender-specific terms 'mother' and 'father' with the gender-neutral term 'parent'. This allows a person who is a parent of a child within the meaning of the definition of 'parent' (as amended by Items 36 to 39 of this Schedule) to be considered a 'family member' in relation to a 'relevant person' for the purposes of the Social Security Act (other than Part 2.11 and the Youth Allowance Rate Calculator in section 1067G).

Item 61

449 This item inserts a note at the end of subsection 23(14) of the Social Security Act that provides that paragraph (a) of the definition of 'parent' in subsection 5(1) of the Social Security Act is relevant to the term 'parent' in subsection 23(14).

Item 62

450 This item inserts subsections 23(22) and 23(23) into the Social Security Act. Subsection 23(22) of the Social Security Act is a tracing rule that provides that if one person is the relationship child of a person and that person is the relationship parent, relationships are to be traced to or through those persons as if they were parent and child. For example, in relation to the 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.

451 New subsection 23(23) provides that the tracing rule in subsection 23(22) does not apply when determining whether a person and his or her partner are within a prohibited relationship as defined in subsection 14(12).

Item 63

452 This item inserts new subsection 24(1A) into the Social Security Act which provides that the Secretary may determine, in writing, that the person is not to be treated as a member of a couple if:

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a person is in a relationship with another person, whether the partner is of the same sex or different sex; and

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the relationship between the person and the partner is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act as a kind of relationship prescribed for the purposes of that subsection; and

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the person is not living separately and apart from the partner on a permanent or indefinite basis; and

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the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.

This ensures that a person who is in a registered same-sex relationship will be treated in the same way as the other member of a couple categories under subsection 24(2) of the Social Security Act.

Items 64 and 65

453 Subsection 24(2) provides that the Secretary may determine in writing that a person is not to be treated as a member of a couple with another person for the purposes of the Social Security Act if:

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they have a relationship with a person of the opposite sex

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they are not legally married to that person

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the relationship between the person and the partner is a marriage-like relationship, and

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the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.

This means that the Secretary's discretion only expands to persons who are in an opposite-sex de facto relationship, and for a special reason in the particular case, should not be treated as a member of a couple.

454 Item 60 amends subparagraph 24(2)(a) by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

455 Item 65 amends subparagraph 4(2)(c) by replacing the term 'marriage-like' with 'de facto'.

456 The effect of these amendments is to ensure that the Secretary's discretion in determining who is not to be treated as a member of a couple, includes same-sex relationships as well as opposite-sex relationships. The inclusion of same-sex relationships within this discretion is not intended to change the treatment of married or opposite-sex de facto couples.

Item 66

457 This item inserts new subsection 24(3) into the Social Security Act, providing that a determination made under subsections 24(1), (1A) or (2) is not a legislative instrument. This provision is included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 . In other words, this provision is merely declaratory of the law.

Item 67

458 This item repeals note 2 and inserts a new note 2 at the end of subsection 553B(3) of the Social Security Act that provides that paragraph (b) of the definition of 'parent' in subsection 5(1) of the Social Security Act is relevant to the term 'parent' in subsection 553B(3).

Item 68

459 This item inserts subsection 993(3) into the Social Security Act. Subsection 993(3) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship, the two persons in the relationship are taken to be the young person's only parents for the purposes of the section. This provision limits who can be a parent of a relationship child for the purposes of determining if a young person is a double orphan where that young person is not a refugee.

Item 69

460 This item inserts into section 994 of the Social Security Act a '(1)' before the words 'A young person' as a consequence of amendments made by Item 70 of this Schedule.

Item 70

461 This item inserts subsection 994(2) into the Social Security Act. Subsection 994(2) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship, the two persons in the relationship are taken to be the young person's only parents for the purposes of the section. This provision limits who can be a parent of a relationship child for the purposes of determining if a young person is a double orphan where that young person is a refugee.

Item 71

462 This item inserts new subsection 995(3) into the Social Security Act. New subsection 995(3) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with another person, the two persons in the relationship are taken to be the young person's only parents for the purposes of section 993. This provision limits who can be a parent of a relationship child for the purposes of determining if a young person is a double orphan where that young person is a refugee.

Item 72

463 This item inserts a reference to 'relationship child' into paragraphs 1061PL(2)(a) and 1061PL(2)(b) of the Social Security Act. This expands the range of persons who can be considered to have a dependent child for the purposes of determining whether a person is to be regarded as 'independent' in relation to qualification for the pensioner education supplement under Part 2.24A of the Social Security Act.

Item 73

464 This item inserts subsection 1061PL(8) into the Social Security Act. Subsection 1061PL(8) relates to parents of relationship children when determining whether a person is to be regarded as 'independent' in relation to qualification for the pensioner education supplement under Part 2.24A of the Social Security Act.

465 Subsection 1061PL(8) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with another person, the two persons in the relationship are taken to be the young person's only parents for the purposes of subsections 1061PL(3), (4), (5), (6) and (7). This amendment restricts who is considered to be a child's parent when determining whether a person is independent if they have been orphaned, if the parents cannot exercise their responsibilities or if it is unreasonable for the person to live at home.

Items 74 to 83

466 These items amend Pension Rate Calculator provisions in Chapter 3 of the Social Security Act. The effect of these amendments is to ensure that same-sex de facto relationships are included as well as opposite-sex de facto relationships for the purposes of the Pension Rate Calculator provisions in the Social Security Act. The inclusion of same-sex relationships within these provisions is not intended to change the treatment of married or opposite-sex de facto couples.

Subsections 1064(4 ), 1066(3) and 1066A(5 )

467 Subsections 1064(4), 1066(3) and 1066A(5) of the Social Security Act provide that a person's pension rate is not to exceed the rate at which it would be payable to the person if

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they are in an opposite-sex relationship with another person

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the relationship between them is a marriage-like relationship having regard to all the circumstances of the relationship, including the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A) of the Social Security Act, and

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either or both of them are under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of Pension Rate Calculators A, C and D, which determines the rate of pension payable under these calculators.

468 Items 74, 78 and 80 amend subparagraphs 1064(4)(a), 1066(3)(a) and 1066A(5)(a) respectively by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

469 Item 75, 79 and 81 amend subparagraph 1064(4)(b), 1066(3)(b) and 1066A(5)(b) respectively by replacing the term 'marriage-like' with 'de facto'.

Subsection 1065(3 )

470 Subsection 1065(3) of the Social Security Act provides that the disability support pension rate of a person if they are permanently blind and over the age of 21 is not to exceed the rate at which it would be payable to the person if

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they are in an opposite-sex relationship with another person

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the relationship between them is a marriage-like relationship having regard to all the circumstances of the relationship, including the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A) of the Social Security Act, and

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either or both of them are under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of Pension Rate Calculator B, which determines the rate of disability support pension payable.

471 Item 76 amends subparagraph 1065(3)(a) by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

472 Item 77 amends subparagraph 1065(3)(b) by replacing the term 'marriage-like' with 'de facto'.

Subsection 1066B(4 )

473 Subsection 1066B(4) of the Social Security Act provides that the disability support pension rate of a person if they are permanently blind and under the age of 21 is not to exceed the rate at which it would be payable to the person if

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they are in an opposite-sex relationship with another person

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the relationship between them is a marriage-like relationship having regard to all the circumstances of the relationship, including the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A) of the Social Security Act, and

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the other person is under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of Pension Rate Calculator E, which determines the rate of disability support pension payable.

474 Item 82 amends subparagraph 1066(4)(a) by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

475 Item 83 amends subparagraph 1066(4)(b) by replacing the term 'marriage-like' with 'de facto'.

Item 84

476 This item inserts a reference to 'relationship child' into paragraphs 1067A(3)(a) and 1067A(3)(b), of the Social Security Act. This expands the range of persons who can be considered to have a dependent child for the purposes of determining whether a person is to be regarded as 'independent' in relation to Parts 2.11, 3.4A, 3.4B and 3.5 and 3.7 of the Social Security Act.

Item 85

477 This item inserts subsection 1067A(13) into the Social Security Act. Subsection 1067A(13) relates to parents of relationship children when determining whether a person is to be regarded as 'independent' in relation to Parts 2.11, 3.4A, 3.4B and 3.5 and 3.7 of the Social Security Act.

478 Subsection 1067A(13) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with another person, the two persons in the relationship are taken to be the young person's only parents. For the purposes of subsections 1067A(5), (6), (7), (8), (9) and (11). This amendment restricts who is considered to be a child's parent when determining whether a person is independent if:

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they have been orphaned

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if the parents cannot exercise their responsibilities

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if it is unreasonable for the person to live at home, or

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they are disadvantaged.

Item 86

479 This item inserts into section 1067B of the Social Security Act a '(1)' before the words 'A person is taken to be' as a consequence of amendments made by Item 88 of this Schedule.

Item 87

480 This item inserts a reference to 'relationship child' into paragraphs 1067B(d) and 1067B(e) of the Social Security Act. This will mean that that a person cannot be considered to be an 'accommodated independent person' if they have or have ever had a natural, adoptive or relationship child that is wholly or substantially dependent on that person or their partner.

Item 88

481 This item inserts subsection 1067B(2) into the Social Security Act. Subsection 1067B(2) relates to parents of relationship children when determining whether a person is to be regarded as an 'accommodated independent person' in relation to determining the rate of youth allowance in Part 3.5 of the Social Security Act.

482 Subsection 1067B(2) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with another person, the two persons in the relationship are taken to be the young person's only parents for the purposes of paragraph 1067B(1)(b). This amendment restricts who is considered to be a child's parent when determining whether a person lives at the home of either or both of his or her parents.

Items 89 to 92

483 The existing definition of current 'member of a Youth Allowance (YA) couple' in subsection 1067C(1) of the Social Security Act provides that a person is a current 'member of a YA couple' if they are legally married to another person and are not living separately and apart from the other person on a permanent basis, or if they

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are in a relationship with person of the opposite sex,

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are not legally married to that person

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are in a marriage-like relationship with that person (in the Secretary's opinion which is formed as mentioned in subsections 1067C(3) and 1067C(4) of the Social Security Act)

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were over the age of consent applicable in the State or Territory in which they lived if at the time when the relationship became a marriage-like relationship, they were living in Australia

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were over the age of consent applicable in the State or Territory in which they first lived if at the time the relationship became a marriage-like relationship, both persons were living outside Australia, and

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are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .

This means that currently only persons who are married or in an opposite-sex de facto relationship can be considered to be a current 'member of a YA couple' for the purposes of the Social Security Act.

484 Item 89 inserts new paragraph 1067C(1)(aa) into the Social Security Act which provides for a person in a registered same-sex relationship to be considered a 'member of a YA couple'. It provides that a person is a 'member of a YA couple' if all of the following conditions are met:

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the person is in a relationship with another person, whether the partner is of the same sex or different sex;

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the relationship between the person and the partner is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act as a kind of relationship prescribed for the purposes of that subsection;

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in the Secretary's opinion, the person is not living separately and apart from the partner on a permanent or indefinite basis. In forming his or her opinion, the Secretary must have regard to all the circumstances mentioned in subsection 4(3) of the Social Security Act.

This means that registration of a relationship is conclusive of whether a person is a member of a YA couple with another person for the purposes of sections 1067A and 1067B.

485 Item 90 amends subparagraph 1067C(1)(b)(i) of the Social Security Act by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

486 Item 91 amends subparagraphs 1067C(1)(b)(iv), 1067C(1)(b)(v) and 1067C(1)(b)(vi) of the Social Security Act by replacing the term 'marriage-like' with 'de facto'.

487 The effect of these amendments is to ensure that the definition of current 'member of a YA couple', for the purpose of the Social Security Act, 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.

488 Subparagraph 1067C(1)(b)(vii) of the Social Security Act currently refers to a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 . This reference is made redundant as a consequence of the amendments made by Item 34 of this Schedule.

489 Item 92 amends subparagraph 1067C(1)(b)(vii) by removing the phrase 'for the purposes of section 23B of the Marriage Act 1961'.

Items 93 to 96

490 The existing definition of former 'member of a Youth Allowance (YA) couple' in subsection 1067C(2) of the Social Security Act provides that a person has been a 'member of a YA couple' if they were legally married to another person (whether or not they are still legally married) and are not living separately and apart from the other person on a permanent basis, or if they

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were in a relationship with person of the opposite sex,

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were not legally married to that person

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were in a marriage-like relationship for a period of at least 12 continuous mothers (in the Secretary's opinion (formed as mentioned in subsections 1067C(3) and 1067C(4) of the Social Security Act) or were in a marriage-like relationship for at least 6 months (in special circumstances determined by the Secretary)

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were over the age of consent applicable in the State or Territory in which they lived if at the time when the relationship became a marriage-like relationship, they were living in Australia

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were over the age of consent applicable in the State or Territory in which they first lived if at the time the relationship became a marriage-like relationship, both persons were living outside Australia, and

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were not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .

This means that currently only persons who were married or in an opposite-sex de facto relationship can be considered to be a former 'member of a YA couple' for the purposes of the Social Security Act.

491 Item 93 inserts new paragraph 1067C(2)(aa) into the Social Security Act which provides for a person in a registered same-sex relationship to be considered a former 'member of a YA couple'. It provides that a person is a former 'member of a YA couple' if all of the following conditions are met:

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the person is in a relationship with another person, whether the partner is of the same sex or different sex;

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the relationship between the person and the partner is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act as a kind of relationship prescribed for the purposes of that subsection;

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in the Secretary's opinion, the person is not living separately and apart from the partner on a permanent or indefinite basis. In forming his or her opinion, the Secretary must have regard to all the circumstances mentioned in subsection 4(3) of the Social Security Act.

This means that registration of a relationship is conclusive of whether a person is a former member of a YA couple with another person for the purposes of sections 1067A and 1067B.

492 Item 94 amends subparagraph 1067C(2)(b)(i) of the Social Security Act by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

493 Item 95 amends subparagraphs 1067C(2)(b)(iv), 1067C(2)(b)(v) and 1067C(2)(b)(vi) of the Social Security Act by replacing the term 'marriage-like' with 'de facto'.

494 The effect of these amendments is to ensure that the definition of former 'member of a YA couple', for the purpose of the Social Security Act, 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.

495 Subparagraph 1067C(2)(b)(vii) of the Social Security Act currently refers to a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 . This reference is made redundant as a consequence of the amendments made by Item 34 of this Schedule.

496 Item 96 amends subparagraph 1067C(2)(b)(vii) by removing the phrase 'for the purposes of section 23B of the Marriage Act 1961'.

Items 97 and 98

497 These items insert references to subparagraphs 1067C(1)(aa)(ii) and 1067C(2)(aa)(ii) into subsection 1067C(3) of the Social Security Act as a consequence of the amendments made by Items 89 and 93 of this Schedule (respectively.

Item 99

498 This item amends subsection 1067C(4) of the Social Security Act as a consequence of amendments made by Items 91 and 95 of this Schedule.

Item 100

499 This item repeals the note in section 1067C of the Social Security Act, as the information in the note is made redundant by the insertion of new subsection 4(12) as a consequence of Item 34 of this Schedule, which inserts the meaning of 'prohibited relationship'.

Item 101

500 This item inserts subsection 1067D(4) into the Social Security Act. Subsection 1067D(4) relates to parents of relationship children when determining whether a person is taken to be required to live away from home in relation to determining the rate of youth allowance in Part 3.5 of the Social Security Act.

501 Subsection 1067D(4) provides that if a young person (other than an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with another person, the two persons in the relationship are taken to be the young person's only parents for the purposes of paragraph 1067D(1)(b). This amendment restricts who is considered to be a child's parent when determining whether the person does not live at the home of either or both his or her parents

Items 102 and 103

502 Subsection 1067G(2) of the Social Security Act provides that a person's youth allowance rate is not to exceed the rate at which it would be payable to the person if

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they are living with another person as the spouse of the other person on a genuine domestic basis with that person

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the other person is of the opposite sex

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either or both of them are under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of this limit on the rate of youth allowance payable to a person.

503 Item 102 amends paragraph 1067G(2)(a) by inserting '(whether the persons are the same sex or different sexes)' after 'to the other person'.

504 Item 103 repeals paragraph 1067G(2)(b) as a consequence of the amendments made by Item 102.

505 The effect of these amendments is to ensure that the limit on a person's youth allowance applies to 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 or opposite-sex de facto couples within the meaning of this provision.

Item 104

506 This item inserts subparagraph 1067G-B3AA(b)(ia) into the Social Security Act which provides an alternative criterion for working out the maximum basic rate of youth allowance if:

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the person is a relationship parent of a relationship child aged under 16, and

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there is no order of a court that stops the person from being legally responsible for the day-to-day care, welfare and development of the child.

This provision relates to a person who is receiving youth allowance as if the person had a dependent child for the purposes of point 1067G-B3.

Items 105 and 106

507 Item 105 inserts the phrase '(other than a relationship child)' after the words 'a child' in subparagraph (b)(i) of subpoint 1067G-G9(2) of the Social Security Act. Point 1067G-G9 is contained within the youth allowance rate calculator and is applied when working out a person's actual means for the purposes of the family actual means test. Subpoint 1067G-G9(2) provides that certain amounts spent or saved in a particular tax year are not included in the actual means of a person. Subparagraph (b)(i) of subpoint 1067G-G9(2) provides that spending for the maintenance of a child of a person if the person does not have legal responsibility for the day-to-day care, welfare and development of the child is not included in the actual means of a person.

508 Item 106 inserts subparagraph 1067G-G(2)(b)(ia) into subpoint 1067-G9(2) of the Social Security Act. This insertion extends subpoint 1067G-G9(2) to provide that amounts spent or saved by a person which is spent on maintenance of his or her relationship child will be excluded from the person's 'actual means' if there is a court order that stops the person being legally responsible for the day-to-day care, welfare and development of the child.

509 These amendments will ensure that spending for the maintenance of a relationship child of a person where a court order stops the person from being legally responsible for the day-to-day care, welfare and development of the person's child will be treated equally to spending for the maintenance of a natural or adoptive child of a person where the person does not have legal responsibility for the day-to-day care, welfare and development of the child is treated equally for the purposes of determining a person's actual means under point 1067G-G9 for the family actual means test contained in the youth allowance rate calculator.

Items 107, 108, 113, 114, 119, 120, 123 and 124

510 These items amend points 1067G-H21, 1067G-H22, 1067L-D17, 1067L-D18, 1068-G5, 1068-G6, 1068B-D5 and 1068B-D6 of the Social Security 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 definition of 'child' inserted by Item 35 of this Schedule and the definition of 'parent' (as amended by Items 36 to 39 of this Schedule) to be considered for the purposes these provisions.

Item 109

511 This item inserts into section 1067J of the Social Security Act a '(1)' before the words 'A person' as a consequence of amendments made by Item 110 of this Schedule.

Item 110

512 This item inserts subsection 1067J(2) into the Social Security Act. Subsection 1067J(2) provides that if a person (other than a person who is an adopted child) is the relationship child of a person who is the product of the relationship that the person has or had as a couple with a third person, the two persons in the relationship are taken to be the young person's only parents for the purposes of subsection 1067J(1).

513 Section 1067J is contained within the Austudy payment rate calculator and provides when a person is taken to be living at home. Section 1067J provides that a person lives at home if the person lives at the home of either or both of his or her parents. New subsection 1067J(2) will provide that a relationship child will only be taken to be living at home where they live with either or both of their relationship parents.

Items 111 and 112

514 Subsection 1067L(2) of the Social Security Act provides that a person's Austudy rate is not to exceed the rate at which it would be payable to the person if

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they are living with another person as the spouse of the other person on a genuine domestic basis with that person

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the other person is of the opposite sex and under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of this limit on the rate of Austudy payable to a person.

515 Item 111 amends paragraph 1067L(2)(a) by inserting '(whether the persons are the same sex or different sexes)' after 'to the other person'.

516 Item 112 amends paragraph 1067L(2)(b) by removing 'of the opposite sex' as a consequence of the amendments made by Item 170 of this Schedule.

517 The effect of these amendments is to ensure that the limit on a person's youth allowance applies to 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 or opposite-sex de facto couples within the meaning of this provision.

Items 115, 116, 121 and 122

518 These items amend Benefit Rate Calculator B and Parenting Payment Rate Calculator provisions in Chapter 3 of the Social Security Act. The effect of these amendments is to ensure that same-sex de facto relationships are included as well as opposite-sex de facto relationships for the purposes of the Benefit Rate Calculator B and the Parenting Payment Rate Calculator in the Social Security Act. The inclusion of same-sex relationships within these provisions is not intended to change the treatment of married or opposite-sex de facto couples.

Subsection 1068(2 )

519 Subsection 1068(2) of the Social Security Act provides that a person's benefit rate is not to exceed the rate at which it would be payable to the person if

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they are in an opposite-sex relationship with another person

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the relationship between them is a marriage-like relationship having regard to all the circumstances of the relationship, including the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A) of the Social Security Act, and

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either or both of them are under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of Benefit Rate Calculator B which determines the rate of pension payable under these calculators.

520 Item 115 amends subparagraph 1068(2)(a) by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

521 Item 116 amends subparagraph 1068(2)(b) by replacing the term 'marriage-like' with 'de facto'.

Subsection 1068A(3 )

522 Subsection 1068A(3) of the Social Security Act provides that a person's pension Parenting Payment (single) rate is not to exceed the benefit Parenting Payment (partnered) rate at which it would be payable to the person if

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they are in an opposite-sex relationship with another person

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the relationship between them is a marriage-like relationship having regard to all the circumstances of the relationship, including the matters referred to in paragraphs 4(3)(a) to (e) and subsection 4(3A) of the Social Security Act, and

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either or both of them are under the age of consent applicable in the State or Territory in which they are living.

This means that currently only persons who are in an opposite-sex de facto relationship are considered for the purposes of the Parenting Payment Rate Calculator which determines the rate of pension payable under these calculators.

523 Item 121 amends subparagraph 1068A(3)(a) by replacing the phrase 'a person of the opposite sex' with 'another person, whether of the same sex or a different sex'.

524 Item 122 amends subparagraph 1068A(3)(b) by replacing the term 'marriage-like' with 'de facto'.

Item 117

525 This item inserts a reference to 'relationship child' into paragraph 1068-B1A. This expands the range of persons who can be considered to be a dependent child for the purposes of determining a person's maximum basic rate of widow allowance, Newstart allowance (18 or over) sickness allowance (18 or over) partner allowance, and mature age allowance.

Item 118

526 This item inserts subparagraph (a)(i) of subpoint 1068-B1B into the Social Security Act which provides an alternative criterion for working out the maximum basic rate if the person is a relationship parent of a child under 16 and there is no order of a court that stops the person from being legally responsible for the day-to-day care, welfare and development of the child. This is relevant to working out a person's maximum basic rate of widow allowance, Newstart allowance (18 or over) sickness allowance (18 or over) partner allowance, and mature age allowance.

Item 125

527 This item replaces the definition of 'child' in subsection 1207A of the Social Security Act with a new definition of 'child' which adopts elements of the key definition of 'child'. The item expands who can be considered a child for the purposes of a person for the purposes of Part 3.18 of the Social Security Act.

528 New paragraph (a) of the definition of 'child' in subsection 1207A of the Social Security Act provides that a 'child' in relation to a person includes an adopted child, step-child or foster-child of the person. This provision replicates the existing provision.

529 New paragraph (b) of the definition of 'child' in subsection 1207A of the Social Security Act expands the definition to include a child who is the product of a relationship. Paragraph (b) is qualified by providing that for a 'child' to be the product of a relationship, the child must be, the biological child of at least one person in the relationship, or born to a woman in the relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 126

530 This item replaces subsection 1207B(2) into the Social Security Act with a new subsection 1207B(2) of the Social Security Act. Subsection 1207B(2) is a tracing rule that allows relationships for the purposes of section 1207B to be traced, because of the definition of 'child' in section 1207A, to or through those relationships on the basis that the person is the child of the other person. 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.

Item 127

531 This item repeals the definition of 'child' in subsection 1209R(5) of the Social Security Act and inserts the key definition of 'child' to expand who can be considered a child for the purposes of determining who is a principal beneficiary of a trust for the purposes of section 1209 of the Social Security Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

532 New paragraph (a) of the definition of 'child' in subsection 1209R(5) of the Social Security Act provides that a 'child' in relation to a person includes an adopted child, step-child or foster-child of the person. This provision replicates the existing provision.

533 New paragraph (b) of the definition of 'child' in subsection 1209R(5) of the Social Security Act expands the definition to include a child who is the product of a relationship. Paragraph (b) is qualified by providing that for a 'child' to be the product of a relationship, the child must be, the biological child of at least one person in the relationship, or born to a woman in the relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.