Senate

Explanatory Memorandum

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

Schedule 5 - Prime Minister and Cabinet amendments

281 This Schedule contains amendments to the Governor-General Act 1974 (the GG Act) which makes provision for the salary of the Governor-General and the payment of allowances to persons who have held the office of Governor-General and their spouses.

282 Currently, where a person who is Governor-General dies, or a person who held the office of Governor-General dies, an allowance is payable to the spouse of the person. The allowance is available only to a married or opposite-sex de facto spouse of a deceased person. The eligibility of a spouse to an allowance depends in part on whether the person is in a marital relationship with the Governor-General or former Governor-General at the time of the Governor-General's or former Governor-General's death. Under the Act, children are not recognised for eligibility purposes and are not themselves entitled to any allowance.

283 These amendments will make an allowance arising from the death of a scheme member available to an eligible same-sex partner of the Governor-General or former Governor-General.

284 From the commencement of these amendments, eligibility for a spouse's entitlement will be linked to whether a person was in a couple relationship with a Governor-General or former Governor-General at the time of their death. A couple relationship will extend to relationships between persons of the same sex in specified circumstances as well as those relationships previously referred to as marital relationships.

Item 1

285 This item inserts a signpost to the definition of the term ' couple relationship' in section 2B of the GG Act.

Item 2

286 This item inserts a signpost to the definition of the term ' spouse' in section 2C of the GG Act.

Items 3 and 4

287 Sections 2B and 2C of the GG Act set out the requirements for a person to be considered to be a spouse for the payment of an allowance. A person can be considered to be a spouse if the person had a marital relationship with the Governor-General at a particular time as defined in subsection 2B(2) of the GG Act. An element of having a marital relationship is that the person ordinarily lived with another person as that other person's husband or wife. This means that currently only a married or opposite-sex de facto spouse of a deceased Governor-General or former Governor-General can be considered to have had a marital relationship with the Governor-General or former Governor-General and therefore be eligible for an allowance as a spouse.

288 The amendments made by item 3 and item 4 will extend the entitlement to an allowance to persons of the same sex as the Governor-General. This is achieved by replacing the term ' marital relationship' with the term ' couple relationship' and replacing the phrase ' husband or wife' with the term ' partner' .

289 Item 3 replaces the term ' marital relationship' with the term ' couple relationship' in subsection 2B(2) of the GG Act. The heading to section 2B is also replaced with a new heading that refers to a ' couple relationship' .

290 Item 4 replaces the phrase ' husband or wife' with the term ' partner' in subsections 2B(2) and (3). The term ' partner' is defined in subsection 2B(6) of the GG Act (see item 7).

Item 5 and 6

291 Subsection 2B(4) of the GG Act outlines some circumstances which may be relevant for arriving at an opinion that a person had a couple relationship with the other person as their husband or wife on a permanent and bona fide domestic basis. The circumstances listed are not intended as an exhaustive list but cover some of the more common circumstances, such as where the couple are married or have a child or jointly own their home.

292 This item inserts paragraph 2B(4)(c)(iii) into the GG Act, which extends the existing concept of who can be considered to be a spouse for the payment of an allowance to cover persons in same-sex relationships.

293 Relevant evidence will now include whether:

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the persons' relationship is registered under a State or Territory law prescribed for the purposes of paragraph 4AB(4)(ba) of the Judges' Pensions Act 1968 as a kind of relationship prescribed for the purposes of that paragraph; and

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in the case of persons who are of the same sex, whether there is a child of the relationship.

294 This will assist the Commissioner for Superannuation in determining whether two persons of the same sex had a 'couple relationship' where the relationship is less than 3 years.

295 As it is intended that the prescribed relationships and prescribed State and Territory legislation should be the same for the Commonwealth civilian and military (defined benefit) superannuation schemes, for administrative convenience they will be specified in the Judges' Pensions Act .

Item 7

296 This item inserts a definition of ' partner' into subsection 2B of the GG Act. This amendment is related to the amendment being made to the GG Act by item 4. It would define the word ' partner' to include a person in a same-sex relationship with a Governor-General or former Governor-General.

297 Item 7 also inserts a new subsection 2B(7) to provide that a child cannot be the product of the relationship between two persons, whether the persons are the same sex or different sexes, unless the child is the biological child of at least one of the persons or is born to a woman in the relationship.

Item 8

298 This item amends subsection 2C of the GG Act as a consequence of amendments made by item 3.

Item 9

299 This item provides that the amendments made to the GG Act by Schedule 5 to the Bill will only apply in relation to a person who is appointed as Governor-General on or after the commencement of Schedule 5 to the Bill.