House of Representatives

Explanatory Memorandum

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

Key concepts and definitions

8 This section provides an explanation of the key concepts and definitions used in the Bill.

De facto partner

9 This Bill (Item 1 of Schedule 2 to this Bill) inserts a definition of 'de facto partner' into the Acts Interpretation Act 1901 . The definition encompasses members of both same-sex and opposite-sex de facto relationships.

10 Section 22A of the Acts Interpretation Act will require that an Act or a provision of an Act may specify that the definition in the Acts Interpretation Act applies to that Act or that provision. This approach is a departure from the usual approach in the Acts Interpretation Act which is for words to be defined to have a meaning 'unless the contrary intention appears'. This means that the application of the definition of 'de facto partner' in the Acts Interpretation Act will have no effect unless it is 'triggered' by express provisions in the substantive Act. This approach avoids any possibility of unintended consequences in other legislation.

11 Section 22A will prescribe two different circumstances in which a person will be considered to be the de facto partner of another person. Paragraph 22A(a) of the Acts Interpretation Act will provide that a person is a de facto partner of another person if the person is in a 'registered relationship' with another person under section 22B of the Acts Interpretation Act. Paragraph 22A(b) of the Acts Interpretation Act will provide that a person is a de facto partner of another person if the person is in a 'de facto relationship' with that person under section 22C of the Acts Interpretation Act. The definition of 'de facto partner' is gender neutral and applies to both same-sex and opposite-sex couples.

Registered relationships

12 Under section 22B of the Acts Interpretation Act, a person will be considered to be in a registered relationship with another person for the purposes of paragraph 22A(a) of the Acts Interpretation Act if the relationship is registered under a prescribed law of a State or Territory as a prescribed kind of relationship. This will only apply to relationships that are registered under State or Territory laws that are prescribed for the purposes of the Acts Interpretation Act and are of a kind that has been prescribed. For example, provisions of State and Territory laws that provide for registration of 'caring' or 'interdependent' relationships will not be prescribed as kinds of relationships that will be taken to be a registered relationship for the purposes of the Acts Interpretation Act.

13 The types of relationships that will be prescribed under section 22B of the Acts Interpretation Act are relationships that can be registered under some State and Territory laws that provide for registration of certain relationships. Only State and Territory laws or provisions of laws that provide for registration of relationships-same-sex or opposite-sex-will be prescribed.

De facto relationships

14 Section 22C of the Acts Interpretation Act will provide that, for the purposes of paragraph 22A(b) of the Acts Interpretation Act, a person is in a de facto relationship with another person if the members of the couple are not legally married, are not related by family and have a relationship as a couple living together on a genuine domestic basis.

15 Subsection 22C(2) of the Acts Interpretation Act will provide that all the circumstances of the relationship between the persons are to be taken into account when determining whether two persons have a relationship as a couple for the purposes of paragraph 22C(1)(c) of the Acts Interpretation Act, including any or all of the following relevant factors:

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the duration of the relationship

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the nature and extent of their common residence

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whether a sexual relationship exists

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the degree of financial dependence or interdependence, and any arrangements for financial support, between them

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the ownership, use and acquisition of their property

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the degree of mutual commitment to a shared life

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the care and support of children, and

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the reputation and public aspects of the relationship.

16 Subsection 22C(3) of the Acts Interpretation Act will clarify that no particular finding in relation to any circumstance used in subsection 22C(2) of the Acts Interpretation Act is to be regarded as necessary in deciding whether the persons have a de facto relationship. For example, the fact that a couple do not have children is not a determinative factor when determining whether they are in a de facto relationship. In the same way a lack of a sexual relationship will not exclude the couple from being in a de facto relationship.

17 Subsection 22C(4) of the Acts Interpretation Act will provide that persons are to be taken to be living together on a genuine domestic basis if they are not in fact living together on a genuine domestic basis only because of:

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a temporary absence from each other (eg due to work commitments), or

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illness or infirmity of either or both of them (eg one partner living in a nursing home).

18 Subsection 22C(5) of the Acts Interpretation Act will clarify that a de facto relationship can exist even if one person in the relationship is legally married to another person, in a registered relationship with another person, or in another de facto relationship. This reflects current laws which allow a person to be in a de facto relationship with a person even if they are married to another person.

19 Subsection 22C(6) of the Acts Interpretation Act will provide that for the purposes of paragraph 22C(1)(b), two persons are to be considered to be related by family if:

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one is the child (including an adopted child) of the other

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one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or

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they have a parent in common (who may be an adoptive parent of either or both of them).

For the purposes of determining if two persons are related by family, the fact that adoption has been declared void or has ceased to have effect is to be disregarded. This means that if a person has previously been adopted and that adoption has been declared void or has ceased to take effect, the fact of adoption is still to be taken into account when determining whether that person and another person are related by family.

Child

20 The insertion of the key definition of 'child' expands the classes of children that may be taken to be a child of a couple. The insertion of this definition does not replace the definition of 'child' as it is currently understood in any of the other Acts or provisions of Acts to be amended. This definition expands the current classes of children for the purposes of the Acts or provisions of Acts to be amended. It provides that a child will be considered to be a person's child where the child is the product of a relationship the person has or had as a couple with another person.

21 The key definition of 'child' will also extend recognition to children of opposite-sex relationships who are not already covered by the existing definitions in the Acts or provisions of Acts to be amended. For example, a child who is biologically related to either member of an opposite-sex couple who is conceived through a private surrogacy arrangement, either by the use of Artificial Insemination or through sexual intercourse, would be recognised.

22 Consent to the procreation of a child is not an express requirement in the key definition of 'child'. This is because the term 'product of the relationship' implies an element of joint endeavour. The use of the term 'product of the relationship' allows all the circumstances of a particular case to be considered, which means that a unilateral action by one party would not be likely to fall within the definition of the 'product of the relationship'.

23 A child cannot be a product of the relationship unless the child is:

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the biological child of at least one person in the relationship, ie is conceived utilising the gametes of one party to the relationship, or

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the birth child of a woman in the relationship.

24 Examples 1 to 6 below outline circumstances where a child would be considered to be the 'product of the relationship'. The circumstances indicated in examples 7 to 9.

Example 1

J forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using gametes from S and a donor. The procedure takes place and S gives birth to H.

25 Whilst H is the biological child of S, he is not the biological child of J. H will be considered J's child for the purposes of the key definition of 'child'. That is, H is the product of the relationship between J and S and is S's biological child. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 2

J forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place and S gives birth to H.

26 Whilst H is the birth child of S, he is not the biological child of either J or S. H will be considered J's child for the purposes of the definition of 'child'. That is, H is the product of the relationship between J and S and S is H's birth mother. This would continue to be the case even if the relationship between J and S were to break down at a later time.

Example 3

J forms a relationship as a couple with S. During the relationship J and S enter into an arrangement with T, a person of the opposite-sex, whereby S will have sexual intercourse with T so that S may become pregnant. All parties agree that T will have no role in the life of the child following the child's conception. The arrangement takes place and S gives birth to H.

27 Whilst H is the biological child of S, H is not the biological child of J. H will be considered J's child for the purposes of the definition of 'child'. That is, H is the product of the relationship between J and S because H is S's biological child and there was an element of joint endeavour between J and S in the procreation of H . H would continue to be considered J and S's child even if the relationship between J and S were to break down at a later time.

Example 4

J forms a relationship as a couple with S. During the relationship J and S enter into a surrogacy arrangement with T, whereby T will become pregnant using gametes from S and gametes from an anonymous donor. All parties agree that T will have no role in the life of the child following the child's birth. The arrangement takes place and T gives birth to H.

28 Whilst H is the biological child of S, H is not the biological child of J. H will be considered J's child for the purposes of the definition of 'child'. That is, H is the product of the relationship between J and S because H is S's biological child there is also an element of joint endeavour between J and S in the procreation of H. H would continue to be considered J and S's child even if the relationship between J and S were to break down at a later time.

Example 5

J forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place. The relationship between J and S breaks down and J leaves the relationship before S gives birth to H.

29 Whilst H is the birth child of S, he is not the biological child of either J or S. H will be considered J's child for the purposes of the definition of 'child'. That is, H is the product of the relationship between J and S and S is H's birth mother. The child is still the product of the relationship between J and S even though their relationship has broken down. This will continue to be the case even if S and J enter other relationships.

Example 6

J, a man, is married to S, a woman. Together they have a child H who is the biological child of both J and S.

30 The child H clearly satisfies the common law definition of 'child'. H is also the product of J and S's relationship because both J and S are biologically related to H and S is the birth mother of H.

Example 7

J forms a relationship as a couple with S. During the relationship S has sexual intercourse with T without the knowledge of J, becomes pregnant and gives birth to H.

31 If J decides to leave S, H cannot be considered J's child for the purposes of the definition of 'child'. This is because H is S's biological child but H is not the product of the relationship between J and S as there was no element of joint endeavour. H's connection with J only arose because J was in a relationship with S when H was conceived without the knowledge of J.

Example 8

J, a man has a relationship with S, a woman, and they have a child H. J leaves S and forms a relationship with T, another man, and they raise H together.

32 H is the product of the relationship between J and S. Whilst H is J's biological child, and is in a new relationship with T, H is not the product of the relationship between S and T.

Example 9

J forms a relationship as a couple with S. S has a child H from a previous relationship.

33 H cannot be considered J's child for the purposes of the definition of 'child'. Whilst H is S's biological child, and S is in the relationship, H is not the product of the relationship between J and S. H's connection with J only arose because J commenced a relationship with S and H was conceived before the relationship started. However, in Acts that provide for the recognition of step-children, H may be considered to be J's step-child if the key definition of 'step-child' is inserted (outlined below).

Parent

34 As the insertion of the key definition of 'child' will expand the classes of children that may be taken to be a child of a couple, a key definition of 'parent' will be inserted in the Acts to be amended (where necessary) to ensure that both members of a couple are recognised as parents of the child where that child is the product of the relationship.

35 The definition does not limit who can be considered a parent of a person for the purposes of the Acts to be amended. It adds to the current definition of parent so that a person can be considered to be a parent of a person if that person is the person's child because of the key definition of 'child'.

Step child

36 The ordinary meaning of 'stepchild' is a 'child of a husband or wife by a former union'. 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.

37 This Bill expands the definition of 'stepchild' to include a child of an opposite-sex or same-sex de facto partner by a former relationship. This is achieved by providing that a 'stepchild' includes a child who would be the stepchild 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. It is not necessary to establish that the person and the parent are capable of being legally married.

38 The definition is inclusive and does not limit who is a stepchild for the purposes of the relevant Act. The insertion of this definition ensures that stepchildren of both opposite-sex and same-sex de facto relationships are recognised for the purposes of relevant Acts. The example below outlines circumstances where a child would be considered to be a 'stepchild':

Example 1

J forms a de facto relationship as a couple with S. S has a child H from a previous relationship.

39 While H cannot be considered J's child for the purposes of the definition of 'child', H will be considered to be J's 'stepchild for the purposes of the relevant Act as H would be the stepchild of J, except that H is not legally married to S.

Step - parent

40 The ordinary meaning of 'step-parent' is a 'spouse of a parent of a child by a former union'. As same-sex couples cannot marry, a same-sex de facto partner of a parent cannot be considered to be a step-parent of a child born into a former relationship of the parent, de facto or otherwise. This also applies to opposite-sex de facto partners of parents of children who are born into a former relationship of the birth parent, de facto or otherwise.

41 This Bill expands the definition of 'step-parent' (where relevant) to include a same-sex or opposite-sex de facto partner of a parent of a child by a former relationship. This is achieved by providing that the partner is a 'step-parent' where that partner would be the child's step-parent, except that the partner and the parent are not legally married. It is not necessary to establish that the partner and the parent are capable of being legally married.

42 The definition is inclusive and does not limit who is a step-parent for the purposes of the relevant Act. The insertion of this definition ensures that step-parents of children of both opposite-sex and same-sex de facto relationships are recognised for the purposes of relevant Acts.

43 The example below outlines a circumstance where a person would be considered to be a step-parent:

Example 1

J forms a relationship as a couple with S. S has a child H from a previous relationship.

44 While H cannot be considered J's child for the purposes of the definition of 'child', J will be considered to be H's step-parent for the purposes of the relevant Act as J would be the step-parent of H if J were able to marry S.

Tracing rule

45 Where other family relationships such as 'brother', 'aunt', and 'grandparents' are provided for in an Act, a tracing rule has been developed that will allow relationships referred to in the Acts to include relationships that are traced through the child-parent relationship. Examples 1 and 2 below outline circumstances where the tracing rule can be used to determine a relationship.

Example 1

J forms a relationship as a couple with S. During the relationship J and S decide that S will undergo an artificial conception procedure using donated gametes. The procedure takes place and S gives birth to H. Later, J and S decide to have another child - S will again undergo an artificial conception procedure using donated gametes, but from a different source. The procedure takes place and S gives birth to T. Whilst T is the child of S and J, he is not the biological sibling of H.

46 The use of the tracing rule in this instance will allow T to be considered as H's brother because the relationship is traced through the definitions of child and parent. This will continue to be the case even if the relationship between J and S were to break down at a later time. Without the tracing rule, T will only be considered to be H's half-brother.

Example 2

J forms a relationship as a couple with S. S has a brother T. During the relationship, J and S decide that J will undergo an artificial conception procedure using donated gametes. The procedure takes place and J gives birth to H.

47 T will be considered as H's uncle in this instance because the relationship is traced through the definitions of 'child' and 'parent'. This will continue to be the case even if the relationship between J and S were to break down at a later time. Without the tracing rule, T will have no familial link to H and would not be considered to be T's uncle.