Explanatory Memorandum
Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland MpSchedule 13 - Prime Minister and Cabinet amendments
971 This Schedule contains amendments to the Privacy Act 1988 (within the Prime Minister and Cabinet portfolio) to remove differential treatment of same-sex couples and their children:
Privacy Act 1988
972 The Privacy Act 1988 regulates the collection, holding, use, disclosure, correction and transfer of personal information of individuals by defined Commonwealth agencies and private sector organisations. The amendments insert and amend definitions to ensure that the Privacy Act applies to individuals who are in a same-sex relationship in the same way as it applies to individuals in an opposite-sex relationship. The amendments also ensure that the Privacy Act applies to individuals who a product of a same-sex relationship or are related as a result of a same-sex relationship, in the same way as if it were an opposite-sex relationship.
Item 1
973 The term 'family' is used in a number of places in the Privacy Act. Subsection 6(1) defines 'credit' as referring to a loan intended primarily for domestic, family or household purposes. Subsection 6D(5) provides that an individual is not excluded from being a 'small business operator' for the purposes of the Privacy Act because of certain things only done for the purposes of his or her personal, family or household affairs. Section 16E provides that nothing in the National Privacy Principles applies to the collection, holding, use, disclosure or transfer of personal information by an individual, or personal information held by an individual where this is only for the purposes of, or in connection with, his or her personal, family or household affairs. However, 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.
974 This item inserts subsection 6(10) to extend the meaning of the term 'family' for the purposes of subsection 6(1), and sections 6D and 16E of the Privacy Act. Subsection 6(10) extends the ordinary meaning of '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 the 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.
975 This item also inserts subsection 6(11) to define 'child' for the purposes of the definition of 'family' in subsection 6(10) of the Privacy Act. The definition of child seeks to ensure that children who are the product of a same-sex relationship are in the same position as a child who is a product of an opposite-sex relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.
Item 2
976 This item replaces the term 'de facto spouse' with the term 'de facto partner' in paragraph 2.5(c) of Schedule 3 to the Privacy Act (the National Privacy Principles) as a consequence of the insertion of the key definition of 'de facto partner' into subclause 2.6 of Schedule 3 by Item 4 of this insert.
Item 3
977 'Child' is currently defined for the purposes of subclause 2.5 of the National Privacy Principles by subclause 2.6. The definition includes an adopted child, a step-child and a foster-child of the individual, but may not extend to the children of same-sex relationships. This item repeals the current definition of 'child' in subclause 2.6 of Schedule 3 of the Privacy Act and replaces it with a new definition of 'child'. The new definition expands the ordinary meaning of 'child' to include the categories of children included in the previous definition, and, in addition, children who are the product of a relationship that a person had as a couple with another person (whether of the same sex or a different sex).
978 The objective of extending the definition of 'child' is to ensure that a child who is the product of a same-sex relationship is in the same position as a child who is a product of an opposite-sex relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.
Item 4
979 This item inserts the key definition of 'de facto partner' into subclause 2.6 of Schedule 3 to the Privacy Act. The term 'de facto partner' replaces and expands the range of persons currently recognised by the term 'de facto spouses' in order to put beyond doubt the application of clause to both same-sex and opposite-sex de facto relationships. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.
Item 5
980 This item repeals the current definition of 'parent' in subclause 2.6 of Schedule 3 to the Privacy Act and substitutes it with a new definition of 'parent'. The insertion of this definition aims to ensure that both members of a couple are recognised as parents of the child where that child is the product of the relationship. By referring to the definition of 'child' inserted by Item 3 of this Schedule, the definition ensures that all relationships recognised in the previous definition of 'parent' in subclause 2.6 are recognised. This definition draws on elements of the key definition of 'parent'. A description of the definition can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.
Item 6
981 This item inserts the key definition of 'stepchild' in subclause 2.6 of Schedule 3 to the Privacy Act. This new term is defined to ensure that a child of a same-sex or opposite-sex de facto relationship is considered the step-child of a new partner who is in a de facto relationship with a person from the original relationship. This definition seeks to address a situation where a person would be considered a step-child but for the parent of the child being legally married to the partner. A description of the definition of 'step-child' can be found in the Key Definition and Concepts Sections of this Explanatory Memorandum.
Item 7
982 This item inserts a new subclause 2.7 into clause 2 of Schedule 3 to the Privacy Act in order to expand the definition of 'relative' to recognise that, for the purposes of subclause 2.6, a 'relative' relationship may be based upon a connection traced through an individual who is a de facto partner or a child of a partner.
983 This item also inserts a definition of 'sibling' for the purposes of subclause 2.6 in order to establish that such a relationship exists where a relationship can be traced through either or both parents of the children.