House of Representatives

Explanatory Memorandum

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

Schedule 11 - Infrastructure, Transport, Regional Development and Local Government amendments

891 This Schedule contains amendments to the following Acts within the Infrastructure, Transport, Regional Development and Local Government portfolio to remove differential treatment of same-sex couples and their children:

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Civil Aviation (Carriers' Liability) Act 1959

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Airports Act 1996 , and

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Navigation Act 1912 .

Part 1-Carriers liability amendments (commencing either on commencement of this Bill or the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Bill 2008, whichever is later).

Civil Aviation (Carriers' Liability) Act 1959

892 The Civil Aviation (Carriers' Liability) Act 1959 (the CACL Act) implements various international agreements setting out the liability of an air carrier for the death, injury or delay of a passenger. Damage and delay to baggage and cargo are also covered by the agreements implemented under the Act. Generally the amendments to the CACL Act will allow an air crash victims' same-sex partner and their family to enforce liability against the air carrier in accordance with the provisions of the Act.

893 The Parliament recently passed legislation to amend the CACL Act to implement the 1999 Montreal Convention on carriers' liability, which is the most recent and modern international agreement on carriers' liability, providing for a system of unlimited airline liability. Although the amendments to the CACL Act that are necessary to implement the Montreal Convention have been passed by the Parliament, the Convention has not yet entered into force for Australia internationally, and the operative provisions of the Montreal Convention legislation have therefore not yet commenced operation.

894 In addition to implementing various international agreements on carriers' liability, the CACL Act establishes a separate system of liability to deal with domestic interstate flights, which is complemented by state government legislation for intra-state travel. The CACL Act also creates a non voidable insurance system for passenger liability (also complemented by state government legislation).

Item 1

895 This item replaces the term 'de facto spouse' with 'de facto partner' in the definition of 'family member' at subsection 5(2)(a). It will expand the range of persons to be considered a family member under the CACL Act to include the same-sex partner of a passenger. The definition of 'de facto partner' will be inserted by either Item 4 or 9 of this Schedule, depending on whether Part 2 or 3 of this Schedule commences.

Item 2

896 This item expands the tracing rule at subsection 5(3) in the definition of 'family member'. It will expand the range of persons to be considered a family member under the CACL Act by allowing the relationships listed at subsection 5(2) to be traced through the definition of 'parent' and 'child' to be inserted by Items 3 and 5 of this Schedule or Items 8 and 10 of this Schedule (depending on whether Part 2 or 3 of this Schedule commences). A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Part 2-Carriers liability amendments (if the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 commences earlier than this Bill)

Item 3

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

Item 4

898 This item inserts the key definition of 'de facto partner' into subsection 5(1) of the CACL Act, the definition provides that 'de facto partner' has the meaning given in the Acts Interpretation Act. This will extend the range of persons who can be considered a family member under the Act to include someone who is in a same-sex relationship with a passenger. A description of the key definition of a 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 5

899 This item inserts the key definition of 'parent' into subsection 5(1) of the CACL Act. It extends the range of persons who can be considered a family member in the Act to include someone who is the parent of a child within the meaning of the definition inserted by Item 3. A description of the key definition of a 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 6

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

Item 7

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

Part 3-Carriers liability amendments (if the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 commences later than this Bill).

Item 8

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

Item 9

903 This item inserts the key definition of 'de facto partner' into section 5 of the CACL Act, the definition provides that 'de facto partner' has the meaning given in the Acts Interpretation Act. This will extend the range of persons who can be considered a family member under the Act to include someone who is in a same-sex relationship with a passenger. A description of the key definition of a 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 10

904 This item inserts the key definition of 'parent' into section 5 of the CACL Act. It extends the range of persons who can be considered a family member in the Act to include someone who is the parent of a child within the meaning of the definition inserted by item three. A description of the key definition of a 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 11

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

Item 12

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

Item 13

907 This item replaces subsection 12(5) and lists those classes of people to be considered as members of a passenger's family for the purposes of liability in respect of a passenger's death imposed by the Convention. The item also inserts a tracing rule that will allow the passenger's relationship with a family member to be traced through the definition of 'parent' and 'child', ex-nuptial relationships and relationships by adoption as they relate to a passenger. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 14

908 This item replaces subsection 35(5) and lists those classes of people to be considered as members of a passenger's family for the purposes of liability in respect of a passenger's death imposed by the Part IV of the CACL Act. The item also inserts a tracing rule that will allow the passenger's relationship with a family member to be traced through the definition of 'parent and 'child', ex-nuptial relationships and relationships by adoption as they relate to a passenger. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Part 4-Other Amendments

Airports Act 1996

909 The Airports Act 1996 sets up a system for regulating leased Federal airports. The Airports Act is being amended to change the meaning of 'relative' in clause 2 of the Schedule that relates to ownership definitions. Under the new definition, the term 'relative' will include 'a de facto partner of the person within the meaning of the Acts Interpretation Act. A de facto partnership in the Acts Interpretation Act is gender neutral and applies to both same-sex and opposite-sex couples.

910 In the context of the ownership provisions of the Airports Act, same-sex partners are now explicitly included within the definition of an 'associate'. This amendment removes an ambiguity in the Airports Act where an 'associate' included a partner but did not indicate if a same-sex partner would satisfy the definition. The amendments also insert definitions of 'child' and parent'.

Item 15

911 This item amends clause 2 of the Schedule to the Airports Act as a consequence of the insertion of subclause 2(2) by Item 21of this Schedule.

Item 16

912 This item inserts the key definition of 'child' into clause 2 of the Schedule to the Airports Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 17

913 This item inserts the key definition of 'parent' into clause 2 of the Schedule to the Airports Act. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 18

914 Paragraph (b) of the definition of 'relative' in clause 2 of the Schedule to the Airports Act provides that 'relative' includes another person who, although not legally married to the person, lives with the person on a bona fide domestic basis as the husband or wife of the person. This definition extends to married couples and to opposite-sex de facto couples, but does not extend to same-sex de facto couples because of the words 'as the husband or wife'.

915 This item repeals paragraph (b), and substitutes a paragraph referring to a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 19

916 Paragraph (d) of the definition of 'relative' in clause 2 of Schedule 1 of the Airports Act provides that 'relative' includes a son, daughter, or remoter issue of a person. The ordinary meaning of the terms 'son' and 'daughter' does not extend to the children of same-sex couples.

917 In order to recognise the children of same-sex couples, this item omits the words 'son, daughter' from paragraph (d) the definition of 'relative' and replaces them with the term 'child'. This amendment makes it clear that the provision applies to children of a person because of the definition of 'child' in clause 2 of the Schedule to the Act, inserted by Item 16 of this Schedule.

Item 20

918 This item inserts a note at the end of the definition of 'relative' in clause 2 of the Schedule to the Airports Act to alert the reader to the possibility that subclause 2(2), which provides a tracing rule for determining when certain family relationships are recognised, may affect the categories of relationship referred to in this definition.

919 Subclause 2(2) is inserted by Item 21 of this Schedule.

Item 21

920 This item inserts subclause 2(2) into clause 2 of the Schedule to the Airports Act which provides a tracing rule in order to recognise certain family relationships. The subsection provides that if one person is the child of another person because of the definition of 'child' in subclause 2(1), that relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

921 A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 22

922 This item inserts a transitional provision, which is required because there are criminal sanctions for breach of some of the ownership provisions. A six-month transitional period is included to allow for potential breaches that arise as a result of the amendments to the Airports Act. This will provide time for a person to remedy the situation.

Navigation Act 1912

923 The Navigation Act 1912 provides the legislative basis for many of the Commonwealth's responsibilities for maritime matters including ship safety, the coasting trade, employment of seafarers. It also regulates a range of administrative measures relating to ships and seafarers.

924 The following provisions of the Navigation Act are being amended to remove discrimination against people in same-sex relationships and their families:

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the allotment of a seaman's wages

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the payment of costs related to the 'hurt or injury' of a seaman, including, in the event of a seaman's death, the costs associated with the transport of the seaman's body to port, if this has been requested by a member of the seaman's 'family'

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the disposal of a seaman's property to members of the seaman's family (including a widow, widower or child) following the death of the seaman, including in the context of claims by creditors, and

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compensation for any public body or institution for the relief of destitute persons in Australia from a seaman's wages for 'any sums properly expended during the seaman's absence in the maintenance of those members of the seaman's family' (including any children or stepchildren).

925 The amendments to the Navigation Act insert new definitions of child, de facto partner, parent, stepchild, as well as clarifying the meaning of 'members of a person's family' and 'next of kin'. The amendments also omit expressions relating to 'widow/widower' and 'related to the testator by blood or marriage' and substitute the expressions 'the deceased's spouse or de facto partner' and 'a relative of the testator' respectively. These amendments ensure that a same-sex partner would satisfy the various definitions.

Item 23

926 This item inserts the key definition of 'child' into subsection 6(1) of the Navigation Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 24

927 This item inserts the key definition of 'de facto partner' into subsection 6(1) of the Navigation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 25

928 This item inserts the key definition of 'parent' in subsection 6(1) of the Navigation Act. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 26

929 This item inserts the key definition of 'stepchild' in subsection 6(1) of the Navigation Act. This term is defined to ensure that a child of an opposite-sex or same-sex de facto relationship is considered the stepchild of a new partner who is in a de facto relationship with a person from the original relationship. This definition seeks to address a situation where a person would be considered a step-child but for the parent of the child being legally married to the partner. A description of the definition of 'stepchild' can be found in the Key Definition and Concepts section of this Explanatory Memorandum.

Item 27

930 This item inserts section 6(8) to extend the meaning of the phrase 'members of a person's family' for the purposes of the Navigation Act. The ordinary meaning of 'family' may not extend to same-sex de facto partners, children of same-sex relationships, and relationships traced through those relationships. Subclause 6(8) extends the ordinary meaning of 'members of a person's family' to include a de facto partner, a child of the person and anyone else that is considered to fall within this category when the de facto partner or child is recognised as 'a member of a person's family'. That is, where a de facto partner is recognised as family his or her relationships are also taken into consideration when further determining the other members of a person's family.

931 A description of the tracing rule used in subparagraph 6(8)(c) can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 28

932 This item inserts a note at the end of subsection 7(1) of the Navigation Act to alert the reader to the possibility that subclause 6(8), which provides a tracing rule for determining when certain family relationships are recognised, may affect the scope of the meaning 'member of the family' in subparagraph 7(1)(d)(i).

933 Subclause 6(8) is inserted by Item 27 of this Schedule.

Item 29

934 Section 70 of the Navigation Act provides that a seaman may make stipulations for the allotment and payment of portion of his or her wages as a seaman to certain persons. Subparagraph 70(1)(a)(i) currently provides that a seaman may make such a stipulation for his or her grandparent, parent, wife, husband, brother, sister, child or grandchild. However, the provision does not extend to de facto partners of a seaman.

935 This item inserts the term 'de facto partner' after 'husband' in subparagraph 70(1)(a)(i) in order to remove this marital status discrimination. A definition of 'de facto partner' is inserted into subsection 6(1) of the Navigation Act by Item 24 of this Schedule.

Item 30

936 As described at Item 29 above, section 70 of the Navigation Act allows a seaman to make stipulation of the payment of his or her wages to certain persons. A number of family relationships, such as 'grandparent' and 'grandchild' are listed in subparagraph 70(1)(a)(i) for this purposes. However, the ordinary meanings of these terms do not extend to relationships traced through same-sex relationships.

937 This item inserts a tracing rule into the Navigation Act as subclause 70(5). The subclause provides that for the purposes of subparagraph 70(1)(a)(i), if one person is the child of another person because of the definition of 'child' in the Navigation Act, that relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.

938 A definition of 'child' is inserted by Item 23 of this Schedule.

Item 31

939 Subparagraph 127(1)(f) of the Navigation Act provides that if a seaman dies before reaching port, a ship owner must defray the cost of his or her burial or, if requested by the seaman's family, the cost of the transport of his or her body to port without deduction from his or her wages. However, the ordinary meaning of 'member of his or her family' may not recognise relationships between same-sex couples or their children.

940 This item inserts a note at the end of subsection 127(1) of the Navigation Act to alert the reader to the possibility that subclause 6(8), which provides a tracing rule for determining when certain family relationships are recognised, may affect the scope of the meaning of 'member of his or her family' in the subsection. Subclause 6(8) is inserted by Item 27 of this Schedule.

Item 32

941 Subparagraph 156(1)(b)(i) of the Navigation Act provides that in certain circumstances the property of a deceased seaman may be paid or delivered to his or her widow, widower or child. The ordinary meaning of the terms widow or widower does not extend to the de facto partner (of the same or opposite-sex) of a deceased person.

942 This item repeals the phrase 'be the widow, the widower or' at subparagraph 156(1)(b)(i) and substitutes the phrase 'to have been the deceased's spouse or de facto partner immediately before the deceased's death, to be...' The amendment ensures that the de facto partners of deceased sailors receive the same entitlements as married partner of deceased sailors. A definition of 'de facto partner' is inserted by Item 24 of this Schedule.

Item 33

943 This item provides that the amendment to section 156 of the Navigation Act made by Item 32 of this Schedule only applies in relation to a seaman who dies on or after the commencement of the amendment.

Item 34

944 Section 157 of the Navigation Act provides that in certain circumstances the Authority (the Australian Maritime Safety Authority) may refuse to pay or deliver the residue of the property of a deceased sailor to a person claiming under a sailor's will, if they are not related 'by blood or marriage'. The ordinary meaning of this phrase may not extend to same or opposite-sex de facto partners of a sailor.

945 This item repeals the phrase 'related to the testator by blood or marriage' and substitutes it with the words 'relative of the testator' in subparagraph 157(1)(b) of the Navigation Act. This amendment expands the types of relationships one may have with the testator as recognised by the Navigation Act to also include relationships not based on blood or marriage.

946 Subclause 157(3), which is inserted by Item 35 of this Schedule, affects the meaning of 'relative' for the purposes of paragraph 157(1)(b).

Item 35

947 This item provides that certain relationships should be taken into account in determining whether a person is a 'relative of the testator' for the purposes of section 157. A 'relative of the testator' expands the relationship from being one based on 'blood or marriage' to also include:

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the de facto partner of the testator (within the meaning of the Acts Interpretation Act)

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someone who is the child of the testator, or of whom the testator is a child, because of the definition in section 6, and

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anyone else who would be a relative of the person because someone mentioned in paragraph (a) or (b) is taken into account.

948 A description of the tracing rule may be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 36

949 This item provides that the amendments made to section 157 by Items 34 and 35 of this Schedule apply only in relation to wills made on or after the commencement of the amendments.

Item 37

950 Section 158 makes provision in relation to creditors' claims on the property of a deceased seaman. Subsection 158(6) provides that the Authority may delay the investigation of any demand made by a creditor for the payment of his or her debt for one year from the time of the first delivery of the demand; and if in the course of that time a claim to the property of the deceased is made by any person as widow, widower, next of kin, or legatee, and allowed by the Authority, the Authority may pay and deliver it to that person. The ordinary meaning of the terms 'widow' and 'widower' does not extend to the de facto partner (of the same or opposite-sex) of a deceased person.

951 This item repeals the phrase 'as widow, widower' in subsection 158(6) of the Navigation Act and substitutes the phrase 'who was the deceased's spouse or de facto partner immediately before the deceased's death, or who is the deceased's'. The amendment ensures that the married partners and de facto partners of deceased sailors receive equal treatment.

952 A definition of 'de facto partner' is inserted by Item 24 of this Schedule.

Item 38

953 Subsection 158(7) of the Navigation Act provides that where a payment is made to a widow, widower, next of kin or legatee under subsection 158(6), that the creditor shall have the same rights and remedies against that person as if he or she had received the property as the legal personal representative of the deceased. The ordinary meaning of the terms 'widow' and 'widower' does not extend to the de facto partner (of the same or opposite-sex) of a deceased person.

954 This item repeals the phrase 'as widow, widower' in subsection 158(7) of the Navigation Act and substitutes the phrase 'who was the deceased's spouse or de facto partner immediately before the deceased's death, or who is the deceased's...' The amendment ensures that the married partners and de facto partners of deceased sailors receive equal treatment.

955 A definition of 'de facto partner' is inserted by Item 24 of this Schedule.

Item 39

956 This item inserts subclause 158(8) to provide that certain relationships should be taken into account in determining whether a person is next-of-kin as referred to at subsections 158(6) and (7). Subclause 158(8) provides that, in determining whether a person is next of kin to another person, there should also be taken into account anyone who is a child because of the definition of 'child' in the Act (inserted by Item 23 of this Schedule), and anyone else who would be a relative of a person because someone who is a child by virtue of that definition is taken into account. This amendment expands the ordinary meaning of the term 'next of kin'.

Item 40

957 This item provides that the amendments of section 158 made by Items 37, 38 and 39 of this schedule apply only in relation to a seaman who dies on or after the commencement of the amendments.

Item 41

958 Section 161 provides that where a seaman's wife, husband, children or

step-children becomes a liable charge on the public or obtains relief from any public body or institution for the relief of destitute persons in Australia, that institution shall be entitled to reimbursement from the seaman's wages. However, the provision does not extend to de facto partners of a seaman.

959 This item inserts the term 'de facto partner' after 'husband' in subsection 161(1) in order to remove this marital status discrimination. A definition of 'de facto partner' is inserted into subsection 6(1) of the Navigation Act by Item 24 of this Schedule.

960 Section 161, as amended, lists wife, husband, de facto partner, children or stepchildren of a seaman and subsequently refers to 'those members of the seaman's family'. In this case, the reference is clearly limited to only those members of the family specified at the beginning of subsection 161(1). Accordingly, new subclause 6(8) (inserted by Item 27) does not have any effect in relation to the reference in section 161.