House of Representatives

Explanatory Memorandum

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

Schedule 15 - Veteran's Affairs amendments

1229 This Schedule contains amendments to the following legislation within the Veterans' Affairs portfolio to remove differential treatment of same-sex couples and their children:

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Defence Service Homes Act 1918

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Military Rehabilitation and Compensation Act 2004 , and

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Veterans' Entitlements Act 1986 .

1230 The amendments will impact upon entitlements such as eligibility for Defence housing subsidies, income support payments, compensation payments and treatment.

Defence Service Homes Act 1918

1231 The Defence Service Homes Act 1918 (the DSH Act) provides housing benefits to eligible veterans and their dependants including subsidised loans and insurance.

Item 1

1232 This item inserts a definition of 'de facto partner' into the subsection 4(1) of the DSH Act which provides that 'de facto partner' for the purposes for the DSH Act means a de facto partner within the meaning of the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 2

1233 This item inserts 'and did not have a de facto partner' after the word 'married' in subparagraph (a)(ii) of the definition of 'dependent parent' in subsection 4(1) of the DSH Act. This means that a person cannot be a 'dependent parent' of a person if that person was legally married or had a de facto partner.

Item 3

1234 This item amends subparagraph (b)(ii) of the definition of 'dependent parent' in subsection 4(1) of the DSH Act by replacing 'husband or wife' with 'spouse or de facto partner'. This extends the range of persons who can be considered to be the 'dependent parent' of a person for the purposes of the DSH Act.

Item 4

1235 A 'further advance' may be made under the DSH Act to a person who has been a purchaser or borrower, as defined in subsection 4(1), other than a person who is a purchaser or borrower merely because the person is or was:

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the personal representative of a deceased purchaser or borrower, or

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a joint purchaser or borrower with the person's spouse who was the eligible person.

1236 This item amends subparagraph (a)(ii) of the definition of 'further advance' in subsection 4(1) of the DSH Act by inserting after 'spouse' (wherever occurring), the words 'or de facto partner'. This extends the range of persons that are not to be taken to have been a purchaser or borrower for the purposes of the definition of 'further advance' by including persons within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 5

1237 An 'initial advance' may be made under the DSH Act to a person referred to in subsection 18(1) who is not, and has not previously been, a purchaser or borrower, as defined in subsection 4(1), other than a person who is or was a purchaser or borrower merely because the person is or was:

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the personal representative of a deceased purchaser or borrower, or

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a joint purchaser or borrower with the person's spouse who was the eligible person.

1238 This item amends paragraph (b) of the definition of 'initial advance' in subsection 4(1) of the DSH Act by inserting after 'spouse' the words 'or de facto partner'. This extends the range of persons that are not to be taken to have been a purchaser or borrower for the purposes of the definition of 'initial advance' by including persons within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 6

1239 This item inserts a definition of 'parent' into subsection 4(1) of the DSH Act. The definition expands the classes of person that may be taken to be a parent of a child by applying the key definitions of 'parent' and 'child'. The definition does not limit who can be considered to be a parent of a person for the purposes of the DSH Act. A description of the key definitions of 'child' and 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 7 and 8

1240 These items replace the current definition of 'Widow' in subsection 4(1) of the DSH Act and substitute a new definition of 'widow'. The new definition of 'widow' provides that, a 'widow' of an eligible person includes a woman who was a de facto partner, within the meaning of the Acts Interpretation Act, of the eligible person immediately before the death of the eligible person. This extends the range of persons that are taken to be a 'widow' for the purposes of the DSH Act by including a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 9 and 11

1241 These items provides that amendments to the definitions of 'widow' or 'widower' in the DSH Act made by Schedule 15 to the Bill only apply in respect of an eligible person who dies on or after the commencement of the amendments.

Item 10

1242 This item repeals the definition of 'widower' in subsection 4(1) of the DSH Act and substitutes a new definition. The new definition of 'widower' provides that a 'widower' of an eligible person includes a man who was a de facto partner, within the meaning of the Acts Interpretation Act, of the eligible person immediately before the death of the eligible person. This extends the range of persons that are taken to be a 'widower' for the purposes of the DSH Act by including a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 12

1243 Subsection 4(2AB) of the DSH Act provides that a person referred to in subsection (2AA) is not taken to have been a purchaser or borrower, merely because the person previously became a purchaser or borrower on the basis that:

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the person's husband is or was an eligible person, and as a result they were treated together as an eligible person for the purposes of DSH Act

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the person's husband was an eligible person, and the person became an eligible person because her husband died, or

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the person is an eligible person because she is a dependent parent.

1244 This item amends paragraphs 4(2AB)(a) and 4(2AB)(b) of the DSH Act by replacing 'husband' with 'spouse or de facto partner'. This extends the range of persons that are not to be taken to have been a purchaser or borrower for the purposes of subsection 4(2AB) by replacing the term 'husband' with 'spouse' and including a person within the within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Items 13, 14 and 15

1245 Subsection 4(2AC) of the DSH Act provides that a man who is an eligible person in his own right and is the widower of a person referred to in subsection 4(2AA) is not to be taken to have been a purchaser or borrower, merely because he previously became a purchaser or borrower on the basis that:

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he was an eligible person in his own right

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his wife was an eligible person and he and she were treated together as an eligible person for the purposes of the DSH Act

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his wife was an eligible person, and he became an eligible person because his wife died, or

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he was an eligible person because was a dependent parent.

1246 Items 13 and 15 amend paragraphs 4(2AC)(d) and 4(2AC)(e) of the DSH Act by replacing 'wife' with 'spouse or de facto partner'. This extends the range of persons that are not to be taken to have been a purchaser or borrower for the purposes of subsection 4(2AC) by replacing the term 'wife' with 'spouse' and including a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

1247 Item 14 amends paragraph 4(2AC)(d) of the DSH Act to replace the gender-specific terms 'he and she' with the gender-neutral term 'they'.

Item 16

1248 This item repeals subsections 4(3A), 4(3B) and 4(3C) of the DSH Act as they are made redundant as a consequence of the insertion of the definition of 'de facto partner' by Item 1 of this Schedule.

Item 17

1249 This item inserts into subsection 4(8) of the DSH Act a reference to the definition of 'de facto partner' in section 4 of the DSH Act. This extends the meaning of a person's 'retirement village accommodation', being part of a retirement village in which the person has, or the person and the person's spouse or de facto partner have, obtained a right of residence.

Item 18

1250 This item inserts into paragraph 4(13)(b) of the DSH Act a reference to the key definition of 'de facto partner' inserted by Item 1 of this Schedule. This extends the meaning of this paragraph to provide that a person who has been an assignor is taken to have been a borrower unless the person was an assignor merely because

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the person is or was an assignor together with the person's spouse or de facto partner, and

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became such an assignor on the basis that the person's spouse or de facto partner was an eligible person.

Item 19

1251 Subsection 4A(1) of the DSH Act provides that the Secretary may, in his or her discretion, treat an eligible person and the wife or husband of that eligible person together as an eligible person for the purposes of the DSH Act. It also provides that any reference in the DSH Act to an eligible person shall be read as including a reference to a wife or husband of that eligible person who is so treated by the Secretary's discretion. Subsection 4A(3) of the DSH Act restricts the Secretary's discretion by providing that subsection 4A(1) shall not apply in relation to any land, or land and dwelling-house, if they are owned or proposed to be owned by the eligible person and his or her wife or husband otherwise than as joint tenants.

1252 This item amends paragraphs 4A(1) and 4A(3) of the DSH Act by replacing 'wife or husband' with 'spouse or de facto partner'. This extends the range of persons that the Secretary's discretion applies to under subsection 4A(1) of the DSH Act by replacing the term 'wife' with 'spouse' and including a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 20

1253 This item amends paragraphs 17A(1)(a) and 17A(1)(b) of the DSH Act by replacing 'wife or husband' with 'spouse or de facto partner'. This extends the range of persons who may be issued a certificate of entitlement as joint tenants to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 21

1254 Section 18 sets out the criteria that must be met before the Secretary may issue a certificate of entitlement in relation to a subsidy or an advance other than a widow or widower advance, an advance for essential repairs or a home support advance.

1255 This item amends paragraphs 18(1)(a) and paragraph 18(1)(e) of the DSH Act by replacing 'husband or wife' wherever they occur with 'spouse or de facto partner'. This extends the range of persons whose circumstances must be considered before the Secretary may issue a certificate of entitlement under section 18 of the DSH Act to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 22 and 24

1256 These items amend subparagraphs 20(1)(a)(i) and 23(1)(a)(ii) of the DSH Act to replace the gender-specific term 'widowed mother or widowed father' with the gender-neutral term 'widowed parent'.

Item 23

1257 Subparagraph 20(1)(a)(ii) of the DSH Act provides that the Secretary shall not issue a certificate of entitlement in relation to subsidy on a widow or widower advance that a person may seek from a credit provider unless satisfied that the person is the wife or husband of an eligible person who is temporarily or permanently insane.

1258 This item amends subparagraph 20(1)(a)(ii) of the DSH Act by replacing 'wife or husband' with 'spouse or de facto partner'. This extends the range of persons who can be considered an applicant for a certificate of entitlement under section 20 of the DSH Act to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 25

1259 This item amends subparagraph 23(1)(a)(iii) of the DSH Act by replacing 'the wife or husband' with 'a spouse or de facto partner'. This amendment extends the range of persons who can be considered an applicant for instalment relief to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 26

1260 This item amends subsection 26(4) of the DSH Act by replacing 'the husband or wife' with 'a spouse or de facto partner'. This amendment extends the range of persons in respect of whom a subsidy may be cancelled to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 27

1261 This item amends paragraphs 27A(1)(c) and 27(2)(c) of the DSH Act by replacing 'wife of husband' with 'spouse of de facto partner'. This amendment extends the range of persons to whom a certificate of entitlement could be issued under section 22 following the death of the eligible person to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Items 28, 29 and 30

1262 These items make amendments to subsection 27A(3) of the DSH Act as a consequence of amendments made by Item 27 of this Schedule.

Item 31

1263 This item amends paragraph 38C(1)(gb) of the DSH Act by replacing 'wife or husband' with 'spouse of de facto partner'. This amendment extends the range of persons to whom the Commonwealth may undertake insurance to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Item 32

1264 This item amends subsection 45A(2) of the DSH Act by replacing 'a husband and wife' with '2 persons who are spouses or de facto partners of each other'. This amendment extends the range of persons to whom the Secretary may give an approval under subsection 45A(1) in relation to bankruptcy or a judgment debt, to include a person within the meaning of the definition of 'de facto partner' inserted by Item 1 of this Schedule.

Military Rehabilitation and Compensation Act 2004

1265 The Military Rehabilitation and Compensation Act 2004 (the MRC Act) provides for compensation and other benefits to be provided for current and former members of the Defence Force who suffer a service injury or disease. The MRC Act also provides for compensation and other benefits to be provided for the dependants of certain deceased members.

Item 33

1266 This item inserts into section 5 of the MRC Act a '(1)' before the words 'In this Act' as a consequence of amendments made by Item 41 of this Schedule.

Item 34

1267 This item inserts the key definition of 'child' into section 5 of the MRC Act to extend the range of persons who can be considered as the child of a person for the purposes of the MRC Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 35

1268 This item inserts the key definition of 'parent' into section 5 of the MRC Act to extend the range of persons who can be considered to be parent of a 'child' within the meaning of the key definition of 'child' inserted by Item 34 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 36, 37 and 38

1269 'Partner' is currently defined in section 5 of the MRC Act to mean a person of the opposite sex to the member who:

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is recognised as the member's husband or wife by the custom prevailing in the tribe or group to which the member belongs if the member is an Aboriginal or Torres Strait Islander

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is legally married to the member, or

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lives with the member as his or her partner on a bona fide domestic basis although not legally married to the member.

1270 This definition extends to both married couples and opposite-sex de facto couples, but does not extend to same-sex de facto couples. These items amend the definition of 'partner' in section 5 of the MRC Act to extend the ordinary meaning of 'partner' to include:

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another individual (whether of the same or a different sex) with whom the member is in a relationship that is registered under a State or Territory law 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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another individual who is, in the Commission's opinion in a de facto relationship with the member and is not an ancestor, descendant, brother, sister, half-brother or half-sister of the member.

1271 The effect of these amendments is that the same-sex partner of a member is recognised for the purposes of the MRC Act. This definition extends to married couples, and to opposite and same-sex de facto couples. The Commission, in determining whether one is in a defined relationship, will need to have regard to section 5(2) as amended by Item 41 of this Schedule.

Item 39

1272 This item inserts the key definition of 'stepchild' into section 5 of the MRC Act. This extends 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 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 40

1273 This item inserts the key definition of 'step-parent' in section 5 of the MRC Act. This extends the range of persons who can be considered to be the 'step-parent' to include a person who would be the step-parent of someone who is child of the de facto partner of the person, except that the person and the parent are not legally married. A description of the definition of 'step-parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 41

1274 This item inserts new subsections 5(2) and 5(3) into section 5 of the MRC Act. New subsection 5(2) provides that, for the purposes of the subparagraph (c)(i) of the definition of 'partner' in subsection 5(1), section 11A of the Veterans' Entitlements Act 1986 applies to the forming of the Commission's opinion about whether a person and a member are in a de facto relationship. This will provide criteria for the Commission to have regard to when forming an opinion whether two people are living together in a de facto relationship.

1275 New subsection 5(3) of the MRC Act provides that, for the purposes of subparagraph (c)(ii) of the definition of 'partner', a child who is, or ever has been, an adopted child of a person is taken to be a natural child of the person. This also operates to the effect that the adoptive parent of a child is taken to be the natural parent of a person. This amendment ensures that the adopted child of a member or adoptive parent of a member cannot be in a de facto relationship with a member because they would be considered an ancestor, brother or sister of a member.

Item 42

1276 This item amends several subparagraphs of paragraph 15(2)(a) of the definition of 'dependant' in section 15 of the MRC Act to replace gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 70 of this Schedule to be considered a 'dependant' of that person for the purposes of the MRC Act.

Item 43

1277 Section 16 of the MRC Act is a tracing rule providing that relationships referred to in paragraph 15(2)(a) of the definition of 'dependant' in the MRC Act include relationships by adoption and 'relationships that are traced through relationships by adoption.' This means if a parent adopts a child, the parent of the adoptive parent would be the adopted child's grandparent. This item replaces subsection 16 of the MRC Act with a new subsection 16 to expand the number of persons who can be taken to be in certain relationships for the purposes of various provisions of the MRC Act.

1278 New subsection 16(1) of the MRC Act is a tracing rule that expands relationships referred to in paragraph 15(2)(a) of the definition of 'dependant' to include relationships by adoption and relationships that arise because of the definition of 'child'. For example, in relation to a child, the other children of the parent are that child's siblings. The effect is the same for adopted children, where the other children of the adoptive parent are that adopted child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

1279 Paragraphs 215(f) and 218(g) of the MRC Act provide that in determining whether household services or attendant care services are reasonably required for a person, the Commission must have regard to the extent that a relative might reasonably be expected to provide household services for themselves and for the person or provide attendant care services. New subsection 16(2) of the MRC Act expands who may be considered to be a person's relative for the purposes of paragraphs 215(f) and 218(g) of the MRC Act.

1280 Paragraphs 16(2)(a) to 16(2)(c) provide that, for the purposes of paragraphs 215(f) and 218(g) of the MRC Act, members of a person's family are taken to include:

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a partner of a person

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a stepchild or an adopted child of a person, or someone of whom the person is a stepchild or adopted child, and

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someone who is a child of a person, or someone of whom the person is a child, because of the definition of 'child' in section 5 of the MRC Act.

The effect of these provisions is that where the above persons are present, they are taken to be relatives of the persons for the purposes of the extent that a relative might reasonably be expected to provide household services for themselves and for the person or provide attendant care services for the purposes of paragraphs 215(f) and 218(g) of the MRC Act.

1281 Paragraph 16(2)(d) is a tracing rule that provides that anyone else who would be a relative of a person because the persons in paragraphs 16(2)(a) to 16(2)(c) are taken into account is taken to be a relative of a person. For example, the child of a de facto partner of a person would be considered to be a relative of the person for the purposes of paragraphs 215(f) and 218(g) of the MRC Act because of the definition of 'child'. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 44 and 45

1282 These items amend subsection 18(1) and subsection 80(3) of the MRC Act to replace the gender-specific term 'son or daughter' with the gender-neutral term 'child'. This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 70 of this Schedule to be considered a 'dependant' of that person for the purposes of the MRC Act.

Item 46

1283 Paragraph 433(3)(a) of the MRC Act allows the trustee of the trust funds to apply funds for the benefit of the person who is entitled to the compensation, a member of that person's family, or a dependant of that person, as the trustee sees fit. This item inserts subsection 433(4) into the MRC Act to expand who is taken to be a member of the person's family for the purposes of determining for whose benefit the trustee can apply funds.

1284 Paragraphs 433(4)(a) to 433(4)(c) provide that for the purposes of paragraph 433(3)(a) of the MRC Act, members of a person's family are taken to include:

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a partner of a person

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a stepchild or an adopted child of a person, or someone of whom the person is a stepchild or adopted child, and

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someone who is a child of a person, or someone of whom the person is a child, because of the definition of 'child' in section 5 of the MRC Act.

The effect of these provisions is that these persons are taken to be members of the person's family for the purposes of determining for whose benefit the trustee can apply funds.

1285 Paragraph 433(4)(d) is a tracing rule that provides that anyone else who would be a relative of a person because the persons in paragraphs 433(4)(a) to 433(4)(c) are taken into account is taken to be a member of the person's family. For example, the child of a de facto partner of a person would be considered a member of the person's family for the purposes of paragraph 433(3)(a) of the MRC Act because of the definition of 'child'. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Veterans' Entitlements Act 1986

1286 The Veterans' Entitlements Act 1986 provides pensions, benefits and allowances to eligible veterans and members and their dependants.

Item 47

1287 This item repeals the reference in section 5 of the Veterans' Entitlements Act relating to the definition of 'parent' in subsection 5F(1) and replaces it with references to subsection 5F(1) and section 10A as a consequence of amendments made by Item 73 of this Schedule.

Items 48 to 50

1288 These items insert references in section 5 of the Veterans' Entitlements Act to definitions located elsewhere in the Veterans' Entitlements Act as a consequence of amendments made by Items 59, 61 and 62 of this Schedule.

Item 51

1289 This item inserts into subsection 5E(1) of the Veterans' Entitlements Act a signpost to the definition of 'prohibited relationship' in subsections 5E(6) and 5E(7) of the Veterans' Entitlements Act.

Item 52

1290 The existing definition of 'widow' in the Veterans' Entitlements Act means:

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a woman who was the partner of a man immediately before he died, or

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a woman who was legally married to a man, but living separately and apart from him on a permanent basis, immediately before he died.

This means that currently only a married or opposite-sex partner of a deceased male can be considered to be the widow of that man and therefore be recognised as a widow for the purposes of the Veterans' Entitlements Act.

1291 This item removes the references to gender at the end of paragraph (a) of the definition of widow in subsection 5E(1) of the Veterans' Entitlements Act to provide that a woman who was the partner of a person (whether male or female) immediately before they died is considered to be the widow of that person.

Item 53

1292 The existing definition of widower in the Veterans' Entitlements Act means:

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a man who was the partner of a woman immediately before she died, or

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a man who was legally married to a woman, but living separately and apart from her on a permanent basis, immediately before she died.

This means that currently only a married or opposite-sex partner of a deceased woman can be considered to be the widower of that woman and therefore be recognised as a widower for the purposes of the Veterans' Entitlements Act.

1293 This item removes the references to gender at the end of paragraph (a) of the definition of widower in subsection 5E(1) of the Veterans' Entitlements Act to provide that a man who was the partner of a person (whether male or female) immediately before they died is considered to be the widower of that person.

Items 54 to 56

1294 The existing definition of 'member of a couple' in subsection 5E(2) of the Veterans' Entitlements 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 Commission's opinion which is formed as mentioned in section 11A of the Veterans' Entitlements Act), 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 Veterans' Entitlements Act.

1295 Item 54 inserts new paragraph 5E(2)(aa) into the Veterans' Entitlements Act which provides for a person who is in a registered relationship-opposite-sex or same-sex-to be considered a 'member of a couple'. This means that registration of a relationship is presumptive evidence as to whether a person is a member of a couple with another person, providing the couple are not living separately and apart from each other on a permanent basis. New paragraph 5E(2)(aa) of the Veterans' Entitlements 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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the person is not living separately and apart from the partner on a permanent basis.

1296 Item 55 amends subparagraph 5E(2)(b)(i) by replacing the phrase 'of the opposite sex' with 'whether of the same sex or a different sex'.

1297 Item 56 amends subparagraph 5E(2)(b)(iii) by replacing the term 'marriage-like' with 'de facto'.

1298 The effect of these amendments is to ensure that the definition of 'member of a couple', for the purposes of the Veterans' Entitlements 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 57 to 59

1299 Subparagraph 5E(2)(b)(iv) of the Veterans' Entitlements Act currently refers to a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 . To allow for easy interpretation of what a 'prohibited relationship' is, these items amend subsection 5E(2) of the Veterans' Entitlements Act to clearly specify what a prohibited relationship is for the purposes of section 23B of the Marriage Act 1961 .

1300 Item 57 amends subparagraph 5E(2)(b)(iv) by removing the phrase 'for the purposes of section 23B of the Marriage Act 1961'.

1301 Item 58 repeals note 2 in subsection 5E(2) of the Veterans' Entitlements Act.

1302 Item 59 inserts a new subsection 5E(6) in the Veterans' Entitlements Act that specifies what is a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 , specifically a relationship between a person and

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an ancestor or a decendant, or

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

1303 Item 59 also inserts a new subsection 5E(7) in the Veterans' Entitlement 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. This new subsection adopts the same approach as the clarification in subsection 23B(5) of the Marriage Act 1961 .

Items 60

1304 This item removes the current definition of 'parent' in subsection 5F(1) of the Veterans' Entitlements Act and replaces it with a signpost to indicate that the term 'parent' has the meaning affected by new section 10A of the Veterans' Entitlements Act which is inserted by Item 73 of this Schedule.

Item 61

1305 This item inserts the key definition of 'step-child' in subsection 5F(1) of the Veterans' Entitlements Act. This extends 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 62

1306 This item inserts the key definition of 'step-parent' in subsection 5F(1) of the Veterans' Entitlements Act. This extends the range of persons who can be considered to be the 'step-parent' to include a person who would be the step-parent of someone who is the 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 63

1307 Paragraph 5G(1A)(b) of the Veterans' Entitlements Act provides that in deciding for the purposes of the Veterans' Entitlements Act whether or not a person resides in Australia, regard must be had to the nature and extent of the family relationships the person has in Australia. This item inserts subsection 5G(1AB) into the Veterans' Entitlements Act to expand the nature and extent of family relationships a person has in Australia for the purposes of the Veterans' Entitlements Act.

1308 Paragraphs 5G(1AB)(a) and 5G(1AB)(b) provide that, for the purposes of paragraph 5G(1A)(b) of the Veterans' Entitlements Act, family relationships are taken to include:

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relationships between partners, and

-

relationships of child and parent that are present if someone is the parent of a person under new section 10A of the Veterans' Entitlements Act.

The effect of these provisions is that relationships between partners and relationships of child and parent that are present if someone is the parent of a person under new section 10A of the Veterans' Entitlements Act are are taken to be family relationships for the purposes of paragraph 5G(1A)(b) of the Veterans' Entitlements Act.

1309 Paragraph 5G(1A)(c) is a tracing rule that provides that any relationship that would be a family relationship is a family relationship for the purposes of paragraph 5G(1A)(b) of the Veterans' Entitlements Act because of

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the relationship between partners

-

relationships of child and parent that are present if someone is the parent of a person under new section 10A of the Veterans' Entitlements Act.

For example, the sibling of a de facto partner of a person could be considered a family relationship member of the person's family for the purposes of paragraph 5G(1A)(b) of the Veterans' Entitlements Act. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 64

1310 This item amends paragraph 5H(8)(zd) of the Veterans' Entitlements Act to replace gender-specific language with gender-neutral language (such as replacing 'son' and 'daughter' with 'child'). This allows a person who is a child of a person within the meaning of the key definition of 'child' inserted by Item 70 of this Schedule to be considered a 'dependant' of that person for the purposes of the Veterans' Entitlements Act.

Item 65

1311 This item amends paragraph (a) of the definition of 'family member' in subsection 5L(1) of the Veterans' Entitlements Act to replace the gender-specific terms 'mother' and 'father' with the gender-neutral term 'parent'. This allows a person who is a parent of a person within the meaning of the key definition of 'parent' inserted by Item 73 to be considered a 'family member' of that person for the purposes of the Veterans' Entitlement Act.

Item 66

1312 This item corrects a grammatical error in paragraph (a) of the definition of 'immediate family member' in subsection 5Q(1) of the Veterans' Entitlements Act by replacing 'step child' with 'step-child'.

Item 67

1313 This item inserts new paragraph (ab) into the definition of 'immediate family member' in subsection 5Q(1) of the Veterans' Entitlements Act to include a reference to a person who is a person's parent because of new subsection 10A(1) as a consequence of amendments made by Item 73 of this Schedule. This extends the range of persons who can be considered to be an 'immediate family member' of a person for the purposes of the Veterans' Entitlements Act.

Item 68

1314 This item inserts new subsections 5Q(5) and 5Q(6) at the end of section 5Q of the Veterans' Entitlements Act.

1315 New subsection 5Q(5) provides a tracing rule for a person who is a child of another person because they are the product of that relationship the other person has or had as a couple with a third person (whether the same sex or different sexes). This allows relationships for the purposes of the Veterans' Entitlements Act to be traced through or to the person so that through those relationships the person is the child of the third person. For example, in relation to the person who is a child of the third person, the other children of the third person are the child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

1316 New subsection 5Q(6) provides that new subsection 5Q(5) does not apply for the purposes of determining when a person and his or her partner are within a prohibited relationship under subsection 5E(6). This maintains the prohibited relationship provisions in the Veterans' Entitlements Act which are a reproduction of the prohibited relationship rules in the Marriage Act 1961 .

1317 This item also inserts a note at the end of subsection 5Q(5) that provides that paragraph 10(1)(b) of the Veterans' Entitlements Act and paragraph (b) of the definition of 'child' in section 52ZO are examples of provisions that define whether a person is the product of a relationship. Both provisions qualify who can be the product of a relationship by providing that for a person to be the product of a relationship, the person must be the biological child of at least one person in the relationship, or born to a woman in the relationship.

Item 69

1318 This item amends paragraph 5R(5)(b) of the Veterans' Entitlements 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 Veterans' Entitlements Act.

Item 70

1319 This item replaces subsections 10(1) and (2) of the Veterans' Entitlements Act with new subsections 10(1) and (2) to extend who can be considered a child of a veteran for the purposes the Veterans' Entitlements Act. This provision also removes sex discrimination from current subsections 10(1) and (2) of the Veterans' Entitlements Act by removing gender-specific terms 'such as 'woman' and 'mother'. The definition does not limit who can be considered to be a parent of a person for the purposes of the Veterans' Entitlements Act.

1320 New subsection 10(1) provides that a reference to a child of a veteran or a deceased veteran is a reference to:

-

a child or adopted child of the veteran

-

a child who is the product of the relationship the veteran has or had as a couple with another person, or

-

any other child who is, or was, wholly or substantially dependent on the veteran immediately before the veteran's death.

1321 New subsection 10(2) requires that for the purposes of paragraph 10(1)(b) of the Veterans' Entitlements Act, the child must be:

-

the biological child of at least one person in the relationship, or

-

born to a woman in the relationship.

This is relevant to the other elements of the key definition of 'child', inserted in subsection 10(1). A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 71 and 72

1322 These items amend subsections 10(3) and 10(5) of the Veterans' Entitlements Act as a consequence of amendments made by Item 70 of this Schedule.

Item 73

1323 This item inserts new section 10A into the Veterans' Entitlements Act. New section 10A is a definition of 'parent' that expands the classes of person that may be taken to be a parent of a child for the purposes of the Veterans' Entitlements Act. The definition does not limit who can be considered to be a parent of a person for the purposes of the Veterans' Entitlements Act.

1324 New subsection 10A(1) of the Veterans' Entitlements Act provides that a parent includes a parent of a person who is the product of a relationship the person has or had as a couple with a third person. Subsection 10A(1) qualifies who can be the product of a relationship by providing that for a person to be the product of a relationship, the person must be the biological child of at least one person in the relationship, or born to a woman in the relationship. These are elements of the key definition of 'child', a description of which can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

1325 New subsection 10A(2) of the Veterans' Entitlements Act clarifies that a parent of a person who is an adopted person means the adoptive parent of that person. This means that the adoptive parent of an adopted person is considered to be the parent of that person.

Items 74 to 76

1326 Section 11A of the Veterans' Entitlements Act contains criteria that a person is to have regard to when forming an opinion whether two people are living together in a marriage-like relationship for the purposes of the Veterans' Entitlements Act. The effect of this provision and subsection 5E(2) of the Veterans' Entitlements Act means that currently only persons who are in an opposite-sex de facto relationship are considered to be in a 'marriage-like relationship'. 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 the Veterans' Entitlements Act.

1327 Item 74 amends section 11A of the Veterans' Entitlements Act by replacing the first occurrence of 'marriage-like' with 'de facto'.

1328 Items 75 and 76 make amendments to criteria that a person is to have regard to by inserting non-discriminatory language in subparagraph 11A(c)(i) and subparagraph 11A(e)(iv) of the Veterans' Entitlements Act to extend the meaning of the criteria, so it is relevant:

-

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

-

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

The insertion of non-discriminatory language in subparagraph 11A(c)(i) and subparagraph 11A(e)(iv) of the Veterans' Entitlements Act is not intended to change the treatment of married or opposite-sex de facto couples.

Item 77

1329 This item amends paragraph 30C(12)(b) of the Veterans' Entitlements Act by replacing 'the spouse' with ' a partner or non-illness separated spouse'. This amendment ensures that the provision applies to persons who are either married or in a same-sex or opposite-sex de facto relationship. This amendment extends the range of persons whose pension may be reduced before the pension of a widow or widower or dependant child is reduced.

Item 78

1330 This item amends paragraph 30D(8)(b) of the Veterans' Entitlements Act by replacing 'the spouse' with ' a partner or non-illness separated spouse'. This amendment ensures that the provision applies to persons who are either married or in a same-sex or opposite-sex de facto relationship. This amendment extends the range of persons whose pension may be reduced before the pension of a widow or widower or dependant child is reduced.

Items 79 and 80

1331 These items amend subparagraphs 38(1)(d)(iii) and 38(1)(i)(iii) of the Veterans' Entitlements Act by inserting before 'spouse' the words 'non-illness separated'. This amendment clarifies that the reference to a 'spouse' is a reference to 'a non-illness separated spouse'. This term is defined in subsection 5E(1) of the Veterans' Entitlements Act.

Items 81 to 84

1332 Subsection 38(2A) of the Veterans' Entitlements Act currently provides that a person's eligibility for a partner service pension under paragraphs (1)(b) or (g) of the Veterans' Entitlements Act ceases if, in the Commission's opinion, the non-illness separated spouse of a veteran:

-

was in a marriage-like relationship with another person when subsection 38(2A) of the Veterans' Entitlements Act commenced, or

-

enters into a relationship with another person after subsection 38(3A) of the Veterans' Entitlements Act commenced and, in the Commission's opinion, the relationship was a marriage-like relationship

1333 This means that a non-illness separated spouse of a veteran is not eligible for a partner service pension under paragraphs (1)(b) or (g) of the Veterans' Entitlements Act if they are in or enter into a marriage-like relationship with another person.

1334 The effect of section 11A and subsection 5E(2) of the Veterans' Entitlements Act means that currently only persons who are in an opposite-sex de facto relationship are considered to be in a 'marriage-like relationship' for the purposes of this restriction. As section 11A and subsection 5E(2) of the Veterans' Entitlements Act are being amended by this Schedule, this subsection needs to be amended to ensure that the restriction applies equally to same-sex de facto couples as it does to opposite-sex de facto couples.

1335 Items 81 and 84 amend paragraphs 38(2A)(a) and 38(2A)(b) of the Veterans' Entitlements Act by replacing 'marriage-like' with 'de facto'. The insertion of non-discriminatory language in paragraphs 38(2A)(a) and 38(2A)(b) of the Veterans' Entitlements Act is not intended to change the treatment of opposite-sex de facto couples who fall within this provision.

1336 Items 82 and 83 make amendments to paragraphs 38(2A)(a) and 38(2A)(b) to allow subsection 38(2A) to apply to non-illness separated spouses who enter into a de facto relationship with another person after 1 July 2009. This ensures this provision only applies after the commencement of this Schedule.

Item 85

1337 This item amends note 2 at the end of subsection 38(2A) of the Veterans' Entitlements Act by inserting after 'veteran', the words 'non-illness separated'. This amendment clarifies that the reference to a 'spouse' is a reference to 'a non-illness separated spouse'.

Items 86 to 89

1338 Subsection 38(3A) of the Veterans' Entitlements Act currently provides that a person's eligibility for a partner service pension under paragraphs 38 (1)(c), (d), (e), (h) or (i) of the Veterans' Entitlements Act ceases if, in the Commission's opinion, the widow or widower of a veteran:

-

entered into a marriage-like relationship with a person after the death of the veteran, and was in that marriage-like relationship when subsection 38(3A) of the Veterans' Entitlements Act commenced, or

-

enters into a relationship with another person after the death of the veteran after subsection 38(3A) of the Veterans' Entitlements Act commenced and, in the Commission's opinion, the relationship was a marriage-like relationship.

1339 This means that a widow or widower of a veteran is not eligible for a partner service pension under paragraphs (1)(c), (d), (e), (h) or (i) of the Veterans' Entitlements Act if they entered into a marriage-like relationship after the death of the veteran.

1340 The effect of section 11A and subsection 5E(2) of the Veterans' Entitlements Act means that currently only persons who are in an opposite-sex de facto relationship are considered to be in a 'marriage-like relationship' for the purposes of this restriction. As section 11A and subsection 5E(2) of the Veterans' Entitlements Act are being amended by this Schedule, this subsection needs to be amended to ensure that the restriction applies equally to same-sex de facto couples as it does to opposite-sex de facto couples.

1341 Items 86 and 89 amend subparagraphs 38(3A)(a)(i) and 38(3A)(b)(i) of the Veterans' Entitlements Act by replacing 'marriage-like' with 'de facto'. The insertion of non-discriminatory language in subparagraphs 38(3A)(a)(i) and 38(3A)(b)(i) of the Veterans' Entitlements Act is not intended to change the treatment of opposite-sex de facto couples who fall within this provision.

1342 Items 87 and 88 make amendments to subparagraphs 38(3A)(ii) and 38(3A)(b)(i) to allow subsection 38(3A) to apply to widows or widowers who are in, or enter into a de facto relationship on or after 1 July 2009. This ensures this provision only applies after the commencement of this Schedule.

Item 90

1343 This item replaces the definition of 'child' in section 52ZO of the Veterans' Entitlements Act with a new section 52ZO. This amendment inserts a new definition which incorporates elements of the key definition of 'child' to extend who can be considered a child for the purposes of Division 11A of the Veterans' Entitlements Act. The new definition of 'child' in section 52ZO of the Veterans' Entitlements Act does not limit the definition of 'child' for the purposes of Division 11A of the Veterans' Entitlements Act.

1344 New paragraph (a) of the definition of 'child' provides that a 'child' in relation to a person includes an adopted child, a step-child or a foster-child of the person. This provision replicates the existing provision. New paragraph (b) of the definition of 'child' extends 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 91

1345 Subsection 52ZP(2) of the Veterans' Entitlements Act provides that for the purposes of section 52ZP, in determining who is a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, first cousin, second cousin or lineal descendant of a person, the following relationships are to be treated as if they were biological child-parent relationships:

-

the relationship between an adopted child and his or her adoptive parent

-

the relationship between a step-child and his or her step-parent, and

-

the relationship between a foster-child and his or her foster-parent.

1346 This item replaces subsection 52ZP(2) of the Veterans' Entitlements Act with a new subsection 52ZP(2). New subsection 52ZP(2) is a tracing rule that provides that if one person is the child of a person because of the key definition of 'child' in section 52ZO, relationships traced through or to the person are to be determined on the basis that that child is the child of the other person. For example, in relation to a child, the other children of the parents 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 92

1347 This item replaces the definition of 'child' of a principal beneficiary in subsection 52ZZZWE(5) of the Veterans' Entitlements Act with a new definition of 'child'. This amendment extends who can be considered a child of a principal beneficiary for the purposes of section 52ZZZWE of the Veterans' Entitlements Act. The new definition of 'child' in subsection 52ZZZWE(5) of the Veterans' Entitlements Act does not limit the definition of 'child' of a principal beneficiary for the purposes of section 52ZZZWE of the Veterans' Entitlements Act.

1348 New paragraph (a) of the definition of 'child' provides that a 'child' in relation to a person includes a natural child, an adopted child, or a step-child of the beneficiary. This provision replicates the existing provision.

1349 New paragraph (b) of the definition of 'child' extends the definition to include a child who is the product of a relationship the beneficiary has or had as a couple with another person. This paragraph incorporates elements of the key definition of 'child'. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

1350 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.

Item 93

1351 This item amends the definition of 'child' in subsection 123(1) of the Veterans' Entitlements Act by repealing paragraph (b) and inserting new paragraphs (b) and (ba). This amendment extends who can be considered a child for the purposes of sections 123A to 123E of the Veterans' Entitlements Act (inclusive) which deal with payment and distribution of pensions on the death of a person. The amended definition of 'child' in subsection 123(1) of the Veterans' Entitlements Act does not limit the definition of 'child' for the purposes of sections 123A to 123E of the Veterans' Entitlements Act (inclusive).

1352 New paragraph (b) of the definition of 'child' provides that 'child' in relation to a deceased person includes a natural child of the deceased person. New paragraph (ba) of the definition of 'child' extends the definition of 'child' for the purposes of sections 123A to 123E of the Veterans' Entitlements Act (inclusive) to include a child who is the product of a relationship the deceased had as a couple with another person (whether of the same sex or a different sex). This paragraph incorporates elements of the key definition of 'child'. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

1353 New paragraph (ba) is qualified by new subsection 123(2) of the Veterans' Entitlements Act which provides 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.

Item 94

1354 This item inserts a note to provide that subsection 123(2A) of the Veterans' Entitlements Act (inserted by Item 95 of this Schedule) is relevant to working out if someone is the product of the relationship.

Item 95

1355 This item inserts subsection 123(2A) into the Veterans' Entitlements Act. New subsection 123(2A) provides that someone cannot be considered to be the product of a relationship for the purposes paragraph (ba) of the definition of 'child' in subsection 123(1) of the Veterans' Entitlements Act, unless they:

-

are the biological child of at least one person in the relationship, or

-

are born to a woman in the relationship.

1356 This insertion is relevant to the elements of the key definition of 'child', inserted by Item 93. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 96

1357 This item is a saving provision providing that the amendments to subsections 38(2A) and 38(3A) of the Veterans' Entitlements Act made by Schedule 15 to the Bill will not affect the operation of subsections 38(2A) and 38(3A) as in force before 1 July 2009. This is relevant to eligibility of a person for the partner service pension. Subsection 38(2A) ceases a person's eligibility for partner service pension if the person, in the Commission's opinion, was in a marriage-like relationship with another person at the time subsection 38(2A) commenced or if the person, in the Commission's opinion, entered into a marriage-like relationship after the commencement of the provision. The cessation of eligibility resulting from subsection 38(2A) prior to 1 July 2009 is not affected by the amendments made by this Schedule.

1358 Subsection 38(3A) ceases a person's eligibility for partner service pension if, after the veteran's death, the person, in the Commission's opinion, was in a marriage-like relationship with another person at the time subsection 38(3A) commenced or if, after the veteran's death, the person, in the Commission's opinion, entered into a marriage like relationship after the commencement of the provision. The cessation of eligibility resulting from subsection 38(3A) prior to 1 July 2009 is not affected by the amendments made by this Schedule.