Supplementary Explanatory Memorandum
Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland MpNOTES ON AMENDMENTS
Amendment 1
18 This amendment removes Table Item 3 from Clause 2 of the General Law Reform Bill. Table Item 3 relates to the commencement date of Schedule 2, Part 1 - Amendment of the Acts Interpretation Act and is no longer required as a consequence of the omission of Part 1 by Amendment 7.
Amendments 2 - 6
19 These amendments remove Table Items 17, 18, 19, 20 and 21 from Clause 2 of the General Law Reform Bill. These table items relate to the commencement of certain items in Schedule 7 (Finance and Deregulation) of the General Law Reform Bill and are no longer required as a consequence of the omission of those items by Amendments 62 and 63.
Amendment 7
20 This amendment omits Schedule 2, Part 1 - Amendment of the Acts Interpretation Act. This amendment is now being moved as part of proposed amendments to the Superannuation Bill to ensure that the Acts Interpretation Act definition of 'de facto partner' is in place for when the Superannuation Bill commences.
Amendments 8 - 11, 13, 14, 16 - 19, 21 - 23, 25, 27, 28, 30 - 36, 38, 40, 42 - 48, 50, 52 - 55, 59, 60, 64 - 66, 68, 69, 71, 73 - 75, 78, 79, 81, 86, 87, 90 - 100 , 102 - 106, 108 - 111
21 These amendments remove references to the 'product of the relationship' definition of child from certain items and instead refer to a child within the meaning of the Family Law Act. This change in approach to the definition of 'child' is described in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum.
Amendments 20, 29, 70, 72, 85, 101, 107
22 These amendments relate to the definition of 'parent'. They remove references to whether the child is a 'product of the relationship' that a person has or had as a couple, and instead refer to whether they are the person's child within the meaning of the Family Law Act. This change in approach to the definition of 'child' is described in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum.
Amendments 12, 37, 41, 49, 51, 56, 57, 67, 76, 77, 80
23 These amendments remove provisions relating to legal responsibility or care, custody and control for children. This change in approach is described under 'legal responsibility' in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum.
Amendment 15
24 This amendment inserts new Items 52A, 52B, and 52C into Schedule 2 (Attorney-General) of the General Law Reform Bill.
25 Item 52A amends the definition of 'step-parent' in subsection 4(1) of the Family Law Act. The current definition of 'step-parent' is someone who is or has been married to a parent of the child, but is not a parent of the child. As same-sex couples cannot marry, the child of one member of the couple by a former relationship cannot be considered to be the other member of the couple's stepchild. This is also the case for children of opposite-sex de facto partners by a former relationship. The current definition does not recognise that a de facto partner of a parent of a child may treat that child as a member of the family formed with the parent.
26 The proposed amendment will extend the existing concept of step-parent to include a person who is, or has been a de facto partner of a parent of the child and treats or treated the child as a member of the family formed with the parent. 'De facto partner' is given the meaning in section 60EA of the Family Law Act (as proposed to be amended by the Family Law Amendment Bill) which includes a person in a registered relationship.
27 The proposed amendment will mean that a court can find that a de facto step-parent has a duty to maintain a child and make a child maintenance order against the de facto step-parent under section 66M of the Family Law Act. This is a secondary duty subject to the primary duty of the parents of the child to maintain the child - see section 66D of the Family Law Act.
28 Item 52B amends paragraph 66M(3)(b) of the Family Law Act as a consequence of amendments to the definition of 'step-parent' by Item 52A. The amended provision requires the court to have regard to the length and circumstances of the marriage or relationship of the step parent with the parent of the step child in determining whether the step parent has a duty to maintain the step child.
29 Item 52C relates to the application of the proposed amendment to the definition of 'step parent' to the Child Support (Registration and Collection) Act. The definition of 'step-parent' in the Child Support (Registration and Collection) Act currently has the same meaning as in the Family Law Act. This amendment provides that the proposed amendment of the Family Law Act definition of 'step-parent' in Amendment 15 affects the definition of 'step-parent' in the Child Support (Registration and Collection) Act only after 1 July 2009. This will align with the commencement of the amendments to that Act made by Amendment 39.
Amendments 24
30 This amendment omits the insertion of a subsection '(1)', as a consequence of the omission of subsection 3(2) by Amendment 27.
Amendment 26
31 Amendment 26 omits a note referring to subsection 3(2) as a consequence of the omission of that subsection by Amendment 27.
Amendment 39
32 This amendment inserts new Items 22A - H, 22J and 22K into Schedule 6 (Families, Housing, Community Services and Indigenous Affairs) of the General Law Reform Bill.
33 Item 22A amends the definition of 'member of a couple' in subsection 5(1) of the Child Support (Assessment) Act. The current definition of 'member of couple' only covers married couples and opposite-sex de facto couples. The new definition will include a person who is living with another person, whether of the same-sex or opposite-sex, on a genuine domestic basis although not legally married to the other person. It will also capture a person who is in a 'registered relationship' as defined by section 22B of the Acts Interpretation Act (as proposed to be amended by parliamentary amendments to the Superannuation Bill).
34 Item 22B amends the definition of 'parent' in subsection 5(1) of the Child Support (Assessment) Act to include a person who is a parent under sections 60H and 60HB of the Family Law Act (as proposed to be amended by the Family Law Amendment Bill). This will mean that in relation to children born as a result of an artificial conception procedure, female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. Parents of children born under surrogacy arrangements where there is a court order giving effect to the arrangement are also recognised as a 'parent' for the purposes of child support.
35 Items 22C and 22D insert a definition of 'relative' in the Child Support (Assessment) Act which gives effect to the 'tracing rule' as described in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum. This will ensure that same-sex parents and their families are recognised as relatives of the child.
36 Item 22E relates to paragraph 29(2)(d) of the Child Support (Assessment) Act which describes one of 8 fact situations in which the Registrar is to be satisfied that a person is a parent of a child. Paragraph 29(2)(d) currently provides that a parent is a parent for the purposes of this Act where that person executed an instrument under the law of the Commonwealth or a State or Territory or prescribed overseas jurisdiction acknowledging that the person is the 'father or mother' of the child. This paragraph is discriminatory as it may prevent the recognition of instruments executed legally by a co-father or co-mother in Australia or in an overseas jurisdiction. Item 22F amends this paragraph by replacing the phrase 'the father or mother' with the gender-neutral term 'parent'.
37 Item 22F inserts a new fact situation in subsection 29(2), which lists fact situations in which the Registrar is to be satisfied that a person is a parent of a child. The new fact scenario will recognise a person who is a parent of a child under section 60H or section 60HB of the Family Law Act (as proposed to be amended by the Family Law Amendment Bill).
38 Items 22G and 22H relate to the definition of 'de facto relationship' as it applies to section 163A of the Child Support (Assessment) Act. The current definition of 'de facto relationship' in subsection 163A(5) only applies to a relationship between a 'man and a woman'. This definition is discriminatory as it does not recognise same-sex relationships.
39 Amendment 22G amends sub-paragraph 163A(2)(b)(v)(A) which exempts from duty child support agreements that relate to a child whose parents were:
- -
- not married to each other, or
- -
- not living with each other in a de facto relationship at the time the child was conceived.
This provision deals with child support agreements that relate to a child conceived when there was no relationship - marriage or de facto - between the parents. Amendment 22GA will remove the phrase 'not living with each other' and provide instead that the parents were not in a de facto relationship with each other at the time the child was conceived. This reflects the amended definition of de facto relationship in subsection 163A(5) (as proposed to be amended by amendment 22H). That is, for parents to not have been in a de facto relationship with each other at the time of conception, they were either not living together on a genuine domestic basis or not in a registered relationship.
40 Item 22H inserts a new definition of 'de facto relationship' which includes a relationship between two persons, whether of the same sex or of different sexes, who live with each other on a genuine domestic basis although they are not legally married. It also captures couples who are in a 'registered relationship' as defined by section 22B of the Acts Interpretation Act (as proposed to be amended by parliamentary amendments to the Superannuation Bill).
41 Items 22J and 22K insert a definition of 'relative' in the Child Support (Registration and Collection) Act which give effect to the 'tracing rule' as described in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum.
42 Application provisions for amendments made by Schedule 2, Part 3 of the General Law Reform Bill will be provided for under regulations.
Amendment 58
43 This amendment omits the word 'general' from the heading of Part 2 of Schedule 7 (Finance and Deregulation) as a consequence of the removal of Parts 3 and 4 of Schedule 7 by Amendments 62 and 63.
Amendment 61
44 This amendment removes the words '(whether Part 2, 3 or 4)' from Item 55 as a consequence of the omission of Parts 3 and 4 of Schedule 7 (Finance and Deregulation) by Amendments 62 and 63.
Amendments 62, 63
45 These amendments omit Parts 3 and 4 of Schedule 7 (Finance and Deregulation) respectively. Part 3 and Part 4 of Schedule 7 are no longer necessary as they related to the application of items in relation to the 'product of the relationship' definition of 'child'. The amendments to the Superannuation Act which were to be effected by Part 3 and Part 4 are now effected by Items 53A and 54A which are to be included in the General Law Reform Bill by amendments 59 and 60 respectively.
Amendment 82
46 This amendment amends Item 7 of Schedule 10 (Immigration and Citizenship) to the General Law Reform Bill. Item 7 inserts a new section 8 into the Australian Citizenship Act to provide for recognition of children born to same and opposite sex couples as a result of artificial conception procedures. As a consequence of the amendments to the Family Law Act to recognise children of same sex de facto couples conceived through artificial conception procedures and surrogacy arrangements, this amendment inserts a revised section 8 which refers to the Family Law Act. The provision will apply equally to married couples and to same and opposite sex de facto partners.
47 The revised section 8 inserted by this amendment will apply in cases in which someone is a child of a person under section 60H or 60HB of the Family Law Act. Where the child is also the child of the person's spouse or de facto partner because of those sections, or is the biological child of the spouse or de facto partner, the child will be taken to be the child of the person and his or her spouse or de facto partner, and not the child of anyone else. As a consequence, gamete donors and surrogate mothers will not be considered to be parents for the purposes of the Australian Citizenship Act where the requirements of this section are satisfied. A child will only be able to claim citizenship by descent from the two parents recognised by this section.
Amendment 83
48 This amendment inserts a new Item 12A into the General Law Reform Bill. The new Item will insert a definition of 'adoption' into subsection 5(1) of the Migration Act to provide that adoption has the same meaning as in the Migration Regulations 1994 .
49 In addition to the common law meaning of adoption, the migration visa programme currently recognises customary adoption in specific circumstances where formal adoption arrangements are not available or reasonably practicable under the law of the place where the arrangements were made and it occurs in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter. Customary adoption is reflected in the definition of adoption in the Migration Regulations and does not sever the ties with the adoptee's previous parents, as is the case for formal adoption. This amendment will ensure that a child who is recognised as having been customarily adopted for the purposes of the Migration Regulations through the migration visa programme will be recognised as a child of both the child's previous parent/s and adoptive parent/s for the purposes of the Migration Act.
Amendment 84
50 This amendment amends the definition of 'child' in the Migration Act by removing the 'product of the relationship' definition of child in Item 20 of Schedule 10 (Immigration and Citizenship) to the General Law Reform Bill and instead referring to a child within the meaning of the Family Law Act, except where the child is an adopted child within the meaning of that Act. 'Child' within the meaning of the Family Law Act currently does not include a step-child or foster child.
51 A new paragraph (1)(b) is inserted to include as a person's child someone who is the adopted child of a person within the meaning of the Migration Act. This will allow the Migration Act concept of adoption to apply rather than the Family Law Act concept (see Amendment 83 above).
52 The change in approach to the definition of 'child' is described in the Key Concepts and Definitions section of this Supplementary Explanatory Memorandum.
Amendments 88, 89
53 These amendments make additional amendments to the Civil Aviation (Carrier's Liability) Act to correct existing references to 'spouse' to read 'spouse or de facto partner' to ensure that the relevant provisions apply equally to same and opposite-sex couples.