House of Representatives

Explanatory Memorandum

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

Schedule 10 - Immigration and Citizenship amendments

738 This Schedule contains amendments to the following Acts within the Immigration and Citizenship portfolio to remove differential treatment of same-sex couples and their children:

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Australian Citizenship Act 2007

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Migration Act 1958

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Immigration (Education) Act 1971 , and

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Immigration (Guardianship of Children) Act 1946 .

Part 1

Australian Citizenship Act 2007

739 The purpose of the Australian Citizenship Act 2007 (the Citizenship Act) is to provide how persons may become Australian citizens and the circumstances in which they may also cease to be Australian citizens. The Citizenship Act provides for the acquisition of Australian citizenship by people born to Australian parents. Currently the Citizenship Act recognises non-biological parents of children born as a result of artificial conception procedures only where they are married. These amendments will enable de facto couples, whether same-sex or opposite-sex, who have children as a result of artificial conception procedures with the use of donor gametes, to be recognised as the parents of their child(ren). Such parents will additionally be recognised as 'responsible parents' of their child(ren). Amendments will also provide parity between same-sex and opposite-sex couples in accessing the residence discretion to count time (when applying for citizenship by conferral) spent outside Australia as time spent in Australia.

Item 1

740 This item repeals the definition of 'child' in section 3 of the Citizenship Act and replaces it with a new definition. The new definition expands the ordinary meaning of 'child'. Paragraph (a) includes the classes of children recognised in the previous definition of 'child', including adopted children, stepchildren, and ex-nuptial children of a person. Paragraph (b) provides that a child of a person includes someone who is the product of a relationship the person has or had as a couple with another person (whether of the same sex or a different sex). To be a 'product of a relationship', the child must be the biological child of one member of the relationship, or born to a woman in the relationship. This definition draws on the key definition of 'child'. A description of this definition can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 2

741 This item amends the definition of 'commencement day' in section 3 to make it clear that the date referred to is the date on which sections 2A to 54 as originally enacted commenced, rather than the date of commencement of any amendments to these sections made by Schedule 10 to this Bill.

Item 3

742 This item inserts the key definition of 'de facto partner' into section 3 of the Citizenship Act. This definition provides that 'de facto partner' includes a de facto partner within the meaning of the Acts Interpretation Act. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 4

743 This item inserts the key definition of 'stepchild' into section 3 of the Citizenship Act. This extends the range of persons who can be considered a 'stepchild' to include a person 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. A description of the definition of 'stepchild' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum. The definition of 'stepchild' is relevant to determining who is a 'child' for the purposes of the definition of 'child' in section 3 of the Citizenship Act.

Item 5

744 This item inserts subsection 6(1A) into the Citizenship Act. Sub-section 6(1A) specifies that the term 'parental responsibility' in paragraph 6(1)(a) has the same meaning as in Part VII of the Family Law Act 1975 .

Item 6

745 This item amends the reference to paragraphs (1)(a) and (b) in sub-section 6(2) of the Citizenship Act to refer only to paragraph (1)(b). The amendment prevents the Family Law Act meanings of 'parent' and 'child' from overriding the Citizenship Act definitions of these terms in paragraph (1)(a).

Item 7

746 This item repeals section 8 of the Citizenship Act, which relates to children of married couples born as a result of artificial conception procedures, and inserts a new provision relating to children of both de facto and married relationships born as a result of artificial conception procedures.

747 As amended, section 8 provides that where a child is born to a woman as a result of an artificial conception procedure while the woman was either married to a man or had a de facto partner, and the procedure was carried out with the consent of her husband or de facto partner, that child is taken for the purposes of the Citizenship Act to be the child of the woman and her husband or de facto partner, and not to be the child of anyone else. This ensures that gamete donors are not considered to be parents for the purposes of the Citizenship Act. The provision does not require a biological link between either the woman or her husband or de facto partner and the child.

Item 8

748 This item provides that the amendments to the Citizenship Act made by Schedule 10 to this Bill (except the amendments to section 22 of that Act) apply in relation to the acquisition or cessation of Australian citizenship on or after the commencement of the Part because of circumstances (including relationships) existing before, on or after that commencement.

749 Under Item 8, acquisition of Australian citizenship by descent can occur on the basis of circumstances existing before commencement. That is, a child of a de facto couple who went through artificial conception will now be able to acquire Australian citizenship based on the citizenship status of the de facto couple. This removes marital status discrimination against the children of de facto relationships by providing these children with the ability to acquire citizenship by descent based on the status of these de facto parents.

750 Administratively, these children would likely have been recognised and acquired Australian citizenship based on these parents, as these parents would have been on the birth certificate of these children when assessing who their parents were for the purposes of acquisition of Australian citizenship.

751 Under Item 8, a child's Australian citizenship may cease if the citizenship of a person who is now recognised as a responsible parent ceases, regardless of whether the child was born on or after the date of commencement of Item 8. This gives effect to the policy intention that a child's citizenship status be aligned with that of their responsible parents(s).

752 Section 36 provides discretion to revoke a child's citizenship if a responsible parent ceases to be an Australian citizen. Broadening the definition of 'responsible parent' to include parents in a de facto relationship who had the child through an artificial conception procedure (see Item 7 of this Schedule), will mean that the cessation of Australian citizenship of the new responsible parent may result in the cessation of Australian citizenship of the child, even if the child was born prior to the commencement of this amendment. This new circumstance will provide parity between children of same-sex couples and opposite-sex couples with respect to the potential operation of section 36.

Item 9

753 Section 22(9) of the Citizenship Act provides the Minister with a discretion in relation to the residence requirement. Satisfaction of the residence requirement is one condition of eligibility for Australian citizenship under subsection 21(2) of the Citizenship Act. The provision allows the Minister to treat periods in which a person was outside Australia as being a period during which they were in Australia in certain circumstances. The discretion is only available where the applicant is the spouse, widow or widower of an Australian citizen at the time that they make an application.

754 This item amends subsection 22(9) to replace the phrase 'widow or widower' with the gender-neutral phrase 'de facto partner or surviving spouse or de facto partner'. The phrase 'surviving spouse or de facto partner' is defined by subsection 22(10) which is inserted by Item 11 of this Schedule.

755 As amended, subsection 22(9) applies to a person who is the spouse or de facto partner, or the surviving spouse or surviving de facto partner, of an Australian citizen.

Item 10

756 This item amends paragraph 22(9)(a) to apply both to spouses and de facto partners of Australian citizens.

Item 11

757 This item repeals subsection 22(10), which provides that, for the purposes of subsection (9), the term 'spouse' includes de facto spouse, as this is rendered redundant by the amendments in Items 9 and 10 of this Schedule.

758 The item inserts a new subsection 22(10), which defines 'surviving spouse or de facto partner' in relation to a person who has died (the deceased citizen) for the purposes of subsection 22(9) to mean a person who was a deceased citizen's spouse or de facto partner immediately before the deceased citizen died, and who has not later become the spouse or de facto partner of another person. The phrase expands the ordinary meaning of 'widow' and 'widower' to include de facto relationships.

Item 12

759 This item provides that the amendments to section 22 of the Citizenship Act made by the Bill apply in relation to applications to become an Australian citizen that were made on or after commencement of this part, or that were made before the commencement of the Part and which had not yet been either approved or refused.

760 The application of the amendments to existing undecided applications by virtue of paragraph (b) of Item 12 will not disadvantage any applicants. The amendments to section 22 will have a beneficial effect for those persons to whom the section applies as a result of the amendments.

Part 2

Division 1 - Main amendments

Migration Act 1958

761 The purpose of the Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. From the commencement of these amendments, the Migration Act will recognise the partner of a biological parent of a child (at the time of the child's birth) as a parent of the child regardless of the sex of the partner, or the non-biological birth mother and her partner where neither of them are biologically related to the child and the child is the product of their relationship. Complementary changes will be made to the Migration Regulations 1994 for the purposes of the grant of visas to children of non-biological parents to reflect this new position in the Migration Act.

762 These amendments to the Migration Act also include the insertion of a definition of 'de facto partner' that recognises that this includes persons in either a same-sex or opposite-sex relationship. The amendments to the Migration Act also involve the rationalisation of certain provisions that otherwise dealt with same sex de facto couples separately from opposite-sex de facto couples.

Item 13

763 This item inserts a definition of 'child' into subsection 5(1) of the Migration Act which refers to the definition in section 5CA inserted by Item 20 of this Schedule.

Item 14

764 This item inserts a definition of 'de facto partner' into subsection 5(1) of the Migration Act which refers to the definition in section 5CB inserted by Item 20 of this Schedule.

Item 15

765 This item omits the words '(within the meaning of the regulations)' from paragraph (a) of the definition of 'health criterion' in subsection 5(1) of the Migration Act, as Item 16 of this Schedule inserts a definition of 'member of the family unit' in the Migration Act.

Item 16

766 This item inserts a definition of 'member of the family unit' into subsection 5(1) of the Migration Act, and provides that the meaning given to the term is provided for in the regulations.

767 There are a number of instances in the Migration Act that provide 'member of the family unit (within the meaning of the Regulations)'. To improve clarity of the Migration Act, the phrase 'member of the family unit' has been located in the definitions provision of the Migration Act.

768 'Member of the family unit' is a phrase that is currently defined in the Migration Regulations 1994 (the Migration Regulations) for the purposes of determining who can apply for a visa on the basis of being a member of the family unit of a primary visa applicant. This is consistent with the framework of the Migration Act, where there is authority for the regulations to prescribe criteria for most visas of a specified class. There are different criteria for different categories of visas and the criteria are established to meet Australia's national interests and needs. As changes to the Migration Program often require changes to the Migration Regulations, which can include the creation and abolition of visas and subclasses, the need for flexibility in this definition remains. The amendment reflects the current position whereby the term 'member of the family unit' takes its meaning from the Regulations.

Item 17

769 This item inserts a definition of 'member of the same family unit' into subsection 5(1) of the Migration Act. A person is a 'member of the same family unit' as another person if either is a member of the family unit of the other, or each is a member of the family unit of a third person. This is consistent with the way that phrase is defined in the Migration Regulations.

770 The purpose of this definition is to align the criteria for the grant of a protection visa in the Migration Act with the broader and more beneficial criteria for the grant of a Subclass 866 (Protection) visa prescribed in the Migration Regulations. The protection visa regime is designed to ensure that family members of refugees can be granted protection visas irrespective of whether the person to whom Australia has protection obligations is the 'head' of the family unit or a child. The Migration Regulations explicitly reflect this arrangement, however, the provisions in the Migration Act are more restrictive by requiring members of the same family unit to be either the spouse or dependent of the person to whom Australia owes protection obligations. This means that if a child is found to be the person to whom Australia has protection obligations, then the child's parents would not be able to satisfy the spouse or dependent requirement in the Migration Act and could not be granted a protection visa, even though they would satisfy the requirements in the Migration Regulations by being a member of the same family unit. This places limitations on the Department's ability to effectively manage family groups of refugees. This amendment removes any inconsistency between the Migration Act and the Migration Regulations, and provides the most beneficial outcome to protection visa applicants.

Item 18

771 This item inserts a definition of 'parent' into subsection 5(1) of the Migration Act to extend the class of persons who can be considered to be a parent of a person to include those people in relation to whom someone is a child within the meaning of the definition of 'child of a person' inserted by Item 20 of this Schedule.

Item 19

772 This item inserts a definition of 'spouse' in subsection 5(1) of the Migration Act which refers to the definition in section 5F inserted by Item 21 of this Schedule.

Item 20

773 This item inserts definitions of 'child of a person' and 'de facto partner' into the Migration Act.

774 Section 5CA extends the range of persons who can be considered as the 'child of a person' for the purposes of the Migration Act. The section is also designed to facilitate a person having no more than two parents. The section incorporates elements of the key definition of 'child'. A description of this definition can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

775 Subsection 5CA(1) expands the class of people who can be considered to be the child of a person to include adoptive children, and children who are the product of a relationship the person has or had as a couple with another person (whether of the same sex or a different sex). A person cannot be a product of a relationship unless he or she is the biological child of one member of the couple or was born to a woman in the relationship.

776 There are some situations where a person might be a child of more than two people as a result of the provisions of subsection 5CA(1). One example is where a child is born as a result of an artificial conception procedure using donor gametes. For the purposes of subsection 5CA(1) such a child will be the child of both of its biological parents, as well as of both members of the couple of whose relationship it is a product. This situation may also arise in relation to whether an adopted child remains the child of his or her biological parents.

777 Subsection 5CA(2) provides that where a person would be the child of more than two persons for the purposes of the Act because of the definition of 'child' in the Act, regulations may specify that particular parent-child relationships will not be recognised. This will ensure that a person cannot have more than two parents for the purposes of the Migration Act.

778 Subsection 5CA(3) clarifies that regulations made under subsection (2) may specify any person as not being the child of another person for the purposes of the Migration Act whether the child relationship between the two people came within the ordinary meaning of the word 'child' or arose for the purposes of the Act by the operation of subsection 5CA(1).

779 Section 5CB inserts a new definition of 'de facto partner' in the Migration Act. The definition is modelled on the definition of 'de facto relationship' in subregulation 1.15A(2) of the Migration Regulations. However, discrimination is removed by allowing de facto partners to be of the same or different sex.

780 Subsection 5CB(1) provides that a person is the de facto partner of another person, whether of the same or a different sex, if the person is in a de facto relationship (as defined in subsection (2)) with the other person.

781 Subsection 5CB(2) provides that a person is in a de facto relationship with another person if they are not in a married relationship with each other (as defined in section 5F) but meet each of four requirements:

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they have a mutual commitment to a shared life to the exclusion of all others;

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the relationship between them is genuine and continuing;

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they live together, or do not live separately and apart on a permanent basis; and

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they are not related by family (as defined in subsection (4)).

782 Subsection 5CB(3) provides for a regulation-making power in relation to the determination of whether one or more of the conditions imposed by subsection 5CB(2) is satisfied. The regulations may make different provision in relation to this determination for different purposes, such as the assessment of eligibility for different classes of visa. This reflects the current arrangement in the Regulations, which make different provision in relation to this determination for different purposes, such as the assessment of eligibility for different classes of visa.

783 Subsection 5CB(4) sets out the circumstances in which two people are 'related by family' for the purposes of paragraph 5CB(2)(d). The circumstances are:

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

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where one is the descendant of the other (even if the relationship is traced through an adoptive parent)

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

784 In determining whether two people are 'related by family' for the purposes of subsection 5CB(4) it is not relevant that an adoption has been declared void or has ceased to have effect.

Item 21

785 This item inserts sections 5F and 5G into the Migration Act. Section 5F provides a definition of 'spouse' and section 5G provides a tracing rule for certain relationships.

786 Section 5F provides a new definition of 'spouse' for the Migration Act. This definition is modelled on the existing requirements for the recognition of a 'married relationship' in the subregulation 1.15A(1A) of the Migration Regulations.

787 Subsection 5F(1) provides that for the purposes of the Migration Act, a person is a 'spouse' of another person if the two are in a 'married relationship'.

788 Subsection 5F(2) provides that two people are in a 'married relationship' if they meet four requirements. The couple must:

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be married to each other under a marriage that is valid for the purposes of the Migration Act

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have a mutual commitment to a shared life as husband and wife to the exclusion of all others

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have a genuine and continuing relationship, and

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live together, or not live separately and apart, on a permanent basis.

789 Subsection 5F(3) provides a regulation-making power in relation to the determination of whether one or more of the conditions imposed by 5F(2) is satisfied. The regulations may make different provision in relation to this determination for different purposes, such as the assessment of eligibility for different classes of visa. This reflects the current arrangement in the Regulations, which make different provision in relation to this determination for different purposes, such as the assessment of eligibility for different classes of visa.

790 A note is also included after subsection 5F(3) which draws the readers attention to the fact that section 12 also affects the determination of whether two people are validly married for the purposes of paragraph 5F(2)(a). Section 12 excludes the operation of section 88E of the Marriage Act 1961 in the determination of validity of a marriage. Section 88E of the Marriage Act relates to the recognition of certain marriages contracted overseas.

791 Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child of a person' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

792 Subsection 5G(1) allows relationships referred to in the Migration Act to include relationships that can be traced through relationships arising as a result of the definition of 'child' in section 5CA. For example, in relation to a child, the other children of the parent are that child's siblings.

793 Subsection 5G(2) provides that the members of a person's family and the relatives of a person include:

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the person's de facto partner

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someone who is the child of the person, or of whom the person is a child, because of the definition of child in section 5CA, and

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anyone else who would be a member of the person's family or a relative of the person if someone mentioned in paragraphs 5G(2)(a) or 5G(2)(b) is taken to be a member of the person's family or a relative of a person.

794 For the avoidance of doubt, subsection 5G(2) also provides that the application of this provision does not limit who is a member of a person's family or relative of a person.

Item 22

795 This item omits reference to 'the spouse or a dependant of' from paragraph 36(2)(b) of the Migration Act and substitutes 'a member of the same family unit as'.

796 The purpose of this definition is to align the criteria for the grant of a protection visa in the Migration Act with the broader and more beneficial criteria for the grant of a subclass 866 (Protection) visa provided for in the Migration Regulations. The protection visa regime is designed to ensure that family members of refugees can be granted protection visas, irrespective of whether the person to whom Australia has protection obligations is the 'head' of the family unit or a child. The Migration Regulations explicitly reflect this arrangement, however, the provisions in the Migration Act are more restrictive by requiring member of the same family unit to be either the spouse or dependent of the person to whom Australia has protection obligations. This means that if a child is found to be the person to whom Australia has protection obligations, then the child's parents would not be able to satisfy the spouse or dependant requirement in the Migration Act and could not be granted a protection visa, even though they would satisfy the requirements in the Migration Regulations by being a member of the same family unit. This places limitations on the Department's ability to effectively manage family groups of refugees. This amendment removes any inconsistency between the Migration Act and the Migration Regulations, and provides the most beneficial outcome to protection visa applicants.

797 The amendments made by this item broaden the criteria for the grant of a protection visa under the Migration Act and ensure consistency with the criteria for the grant of a protection visa provided for in the Migration Regulations.

Item 23

798 This item omits reference to 'the spouse or a dependant of' from paragraph 48A(2)(ab) of the Migration Act and substitutes 'a member of the same family unit as'.

799 The purpose of section 48A of the Migration Act is to prevent, subject to section 48B, a non-citizen who has been refused a protection visa from making a further 'application for a protection visa' while they remain in the migration zone.

800 Subsection 48A(2) of the Migration Act provides what an 'application for a protection visa' includes, and refers to the criterion in paragraph 36(2)(b) of the Migration Act which Item 22 of this Schedule broadens.

Item 24

801 This item provides that the amendments to section 36 and 48A of the Migration Act made by Items 22 and 23 apply in relation to applications for visas made on or after the commencement of the Part, and to applications for visas made before that commencement and not decided before that commencement.

802 Item 23 ensures that those who can be granted a protection visa as a result of the broadening of section 36 by Item 22 (for example, a person making a protection visa application on the basis of being the same-sex de facto partner of a person to whom Australia has protection obligations) are also covered by paragraph 48(2)(ab). That is, they are taken to have made an application for a protection visa such that the bar in section 48A will apply to them.

803 Section 48A of the Migration Act prevents certain non-citizens who made a protection visa application that was refused, from making a further application for a protection visa while in the migration zone (subject to section 48B where in certain circumstances the Minister may decide that section 48A does not apply).

804 Item 24(b) has both a beneficial and a detrimental effect. It will mean that the broader section 36 (in conjunction with consequential changes to be made to the Migration Regulations) covering same-sex de facto partners will apply to applications made before commencement of these amendments where a primary decision has not been made on the application.

805 In the same manner, the amendment to section 48A will also apply to applications made before commencement of these provisions but not decided until after commencement. Thus, if a same-sex partner is able to benefit from the application of section 36 (because they have an outstanding protection visa application at the time of commencement) they will also be caught by the application of the amendment made to subsection 48A(2) if that application is ultimately refused.

Item 25

806 Section 83(1) of the Migration Act provides that a person's spouse is taken to be included in the spouse's visa in certain circumstances. This item inserts the phrase 'or de facto partner' after each occurrence of the term 'spouse' in subsection 83(1) to ensure that same-sex de facto couples are covered by section 83.

Item 26

807 This item inserts a note after subsection 83(1) of the Migration Act to provide guidance on the application of the amendments to subsection 83(1) of the Migration Act of the terms 'de facto partner' and 'spouse' by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 from 1 July 2009.

Item 27

808 Section 83(2) of the Migration provides that a person's child is taken to be included in their visa in certain circumstances. This item inserts a note after subsection 83(2) of the Migration Act to provide guidance on the application of the amendments to subsection 83(2) of the Migration Act of the terms 'child' and 'parent' by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 from 1 July 2009.

Item 28

809 This item sets out the application of amendments to section 83 of the Migration Act by the insertion of 'de facto partner' after 'spouse' (wherever occurring) in section 83, and the application of the insertion of definitions of 'spouse' in section 5F and 'de facto partner' in sections 5CB, and 'child' and 'parent' in subsection 5(1) of the Migration Act on the meaning of those terms in section 83. These amendments apply for the purposes of section 83 in relation to visas granted on or after the commencement of Part 2 of Schedule 10 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 .

810 The application of the terms 'spouse', 'de facto partner', 'child' and 'parent' for the purposes of section 83 under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 do not limit the operation of those definitions in relation to other provision of the Migration Act.

Item 29

811 Section 84 of the Migration Act provides that the Minister may suspend the processing of visas of a certain class until a specified date by notice in the Gazette. Subsection 84(3) provides that such a notice does not have any effect in relation to an application for a visa by a person who is a spouse or dependent child of an Australian citizen, a holder of a permanent visa, or a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation imposed by law.

812 This item inserts the phrase 'or de facto partner' after 'spouse' in subsection 84(3) to ensure that same-sex de facto couples are now covered by subsection 84(3). That is, a section 84 notice to suspend processing of a visa will not have any effect in relation to visas applied for on the basis the person is the spouse, same-sex de facto or opposite-sex de facto partner of a person specified in paragraphs (3)(a)-(c).

Item 30

813 This item repeals paragraph 84(5)(a) of the Migration Act which provides '(a) is unmarried; and', and substitutes '(a) does not have a spouse or de facto partner; and'. This is consistent with the insertion of 'spouse' in section 5F and 'de facto partner' in section 5CB of the Migration Act and removes marital status discrimination. In this case, discrimination against a person who is a 'married' child of a person.

Item 31

814 This item inserts the phrase 'or de facto partner' after 'spouse' in subsection 87(1) of the Migration Act to ensure that same-sex de facto couples are now covered by subsection 87(1). That is, a section 87 limit on the number of visas that may be granted does not prevent the grant to a person who applied for a visa on the ground that he or she was the spouse, same-sex de facto partner or opposite-sex de facto partner of a person specified in paragraphs (1)(a)-(c).

Item 32

815 This item repeals paragraph 87(2)(a) of the Migration Act which provides '(a) is unmarried; and', and substitutes '(a) does not have a spouse or de facto partner; and'. This is consistent with the insertion of 'spouse' in section 5F and 'de facto partner' in section 5CB of the Migration Act and removes marital status discrimination. In this case, discrimination against a person who is a 'married' child of a person.

Item 33

816 This item sets out the application of the amendments made to sections 84 and 87 of the Migration Act and the amendment to the definition of child as it applies to sections 84 and 87.

817 The item applies these amendments to visa applications made on or after commencement of the provisions and to visa applications made but not finally determined (as defined in subsection 5(9) of the Migration Act) before commencement of the provisions.

818 These application provisions have both a beneficial and a detrimental effect as follows:

Beneficial

The amendments made by items 29 and 31 will have a beneficial effect. That is, persons who now fall within the expanded definition of de facto partner (same-sex couples) who lodged a visa application that has not been finally determined before commencement of these provisions, will after commencement be exempt from the potential suspension on visa processing and ban on grant provisions in sections 84 and 87.

The amendment will also be beneficial to children who now fall within the expanded definition of a child in new section 5CA who will after commencement now also fall within the expanded definition of 'dependent child'. For example, children who are the product of a same-sex relationship will after commencement be able to be treated as dependent children. Those children that lodged applications prior to commencement (which have not been finally determined) who were not dependent children as defined, will now be dependant children such that they may be exempt from the potential suspension on visa processing and ban on grant provisions in sections 84 and 87.

Detrimental

The amendments made by items 30 and 32 may have a detrimental affect on a limited class of applicants. They would be those children who fell within the definition of dependent child prior to commencement who were not married but were in a de facto relationship either as a same-sex or opposite-sex relationship. A child that was a visa applicant based on being the dependent child of an Australian citizen etc where the application was not finally determined will no longer be a dependent child for the purposes of the exemptions in sections 84 and 87 of the Act if they are in a de facto partnership (either same-sex or opposite-sex). Thus, prior to commencement they may have been exempt from the potential suspension of processing and ban on grant in sections 84 and 87 whereas after commencement they will no longer be exempt.

819 Under Item 33(2), the application of the definition of 'child' in section 5(1) for the purposes of sections 84 and 87 under the Same-Sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 does not limit the operation of that definition in relation to other provisions of the Migration Act.

Item 34

820 Section 91S of the Migration Act relates to the determination of whether a person has a well-founded fear of being persecuted because of membership of a particular social group that consists of the person's family.

821 This item inserts a note after section 91S of the Migration Act which provides that the tracing rule in section 5G of the Migration Act (inserted by Item 21) may be relevant for determining family relationships for the purposes of this section. Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 35

822 This item repeals the definition of 'member of the family unit' in subsection 134(10) of the Migration Act which states that the phrase has the meaning given by the regulations. This amendment is necessary as Item 16 of this Schedule inserts a new definition of 'member of the family unit' in subsection 5(1) which will apply to all provisions in the Migration Act.

Item 36

823 This item repeals subsection 137T(3) of the Migration Act which provides 'In this section: 'member of the family unit' has the meaning given by the regulations'. This amendment is necessary as Item 16 of this Schedule inserts a new definition of 'member of the family unit' in subsection 5(1) which will apply to all provisions in the Migration Act.

Item 37

824 This item omits '(within the meaning of the regulations)' from subsection 140(1) of the Migration Act. These words are now unnecessary in subsection 140(1) of the Migration Act as a result of the new definition of 'member of the family unit' inserted into subsection 5(1) of the Migration Act by Item 16 of this Schedule.

Item 38

825 Section 192 of the Migration Act relates to detention of visa holders whose visas are liable to cancellation. Subsection 192(5) provides that in certain circumstances a non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained. Paragraph 192(7)(b) provides that any time during which questioning is suspended or delayed in order to allow the non-citizen to communicate with a relative is disregarded for the purposes of subsection 192(5).

826 This item inserts a note after subsection 192(7) of the Migration Act that provides that the tracing rule, in section 5G of the Migration Act (inserted by Item 21) may be relevant for determining family relationships for the purposes of paragraph 192(7)(b) of the Migration Act. Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 39

827 This item inserts the phrase 'or de facto partner' after 'spouse' (wherever occurring) in subsections 199(1) and (2) and 205(1) and (2) of the Migration Act. This amendment is necessary to incorporate the new definition of 'de facto partner' in section 5CB that includes persons in same-sex relationships as well as opposite-sex relationships.

Item 40

828 Subsections 211(1) and (2) of the Migration Act relate to the liability of non-citizens for the costs of their detention. Under these provisions, non-citizens are liable for the costs of their detention and that of their spouse within the meaning of the Migration Regulations, and their dependent children.

829 This item omits 'the spouses of each other within the meaning of the regulations' and substitutes 'spouses or de facto partners of each other' in paragraphs 211(1)(a) and (2)(a) of the Migration Act. This amendment is necessary to incorporate the new definition of 'de facto partner' in section 5CB that includes persons in same-sex relationships as well as opposite-sex relationships.

830 Item 40 also includes a note that amends the heading to section 211 by inserting 'de facto partners' after 'spouses'.

Item 41

831 Subsection 211(3) of the Migration Act relates to the liability of non-citizens for the costs of their detention. Under this provision, where a non-citizen does not have a spouse within the meaning of the Migration Regulations, or their spouse is not detained, the detained non-citizen is liable for the costs of their own detention and that of their dependent children.

832 This item omits 'spouse within the meaning of the regulations' and substitutes it with 'spouse or de facto partner' in subparagraph 211(3)(b)(i) of the Migration Act. This amendment is necessary to incorporate the new definition of 'spouse' and of 'de facto partner' that have been included in new sections 5F and 5CB respectively, and inserted by Items 20 and 21 of this Schedule.

Item 42

833 This item omits 'such a spouse' and substitutes 'a spouse, or a de facto partner,' in subparagraph 211(3)(b)(ii) of the Migration Act. This amendment is necessary to incorporate the new definition of 'de facto partner' in section 5CB that includes persons in same-sex relationships as well as opposite-sex relationships.

Item 43

834 This provides that the application of amendments to section 211 of the Migration Act made by Part 2 of Schedule 10 apply in relation to detention starting on or after the commencement of Part 2. That is, liability for detention costs will extend to same-sex de facto partners for detention which commences after the commencement of Part 2 in addition to married and de facto opposite-sex couples.

Item 44

835 Subsections 212(1) and (2) of the Migration Act relate to the liability of non-citizens for the costs of removal or deportation. Under these provisions, non-citizens are liable for the costs of removal or deportation of themselves, their spouse within the meaning of the Migration Regulations, and their dependent children.

836 This item omits 'the spouses of each other within the meaning of the regulations' and substitutes 'spouses or de facto partners of each other' in paragraphs 212(1)(a) and (2)(a) of the Migration Act. That is, liability for removal and deportation costs will extend to same-sex de facto partners for removal and/or deportation occurring after the commencement of Part 2 in addition to married and de facto opposite-sex couples.

837 Item 44 also includes a note that amends the heading to section 212 by inserting 'de facto partners' after 'spouses'.

Item 45

838 Subsection 212(3) of the Migration Act relates to the liability of non-citizens for the costs of their removal or deportation. Under this provision, where a non-citizen does not have a spouse within the meaning of the Migration Regulations, or their spouse is not removed or deported, the detained non-citizen is liable for the costs of their own removal or deportation and that of their dependent children.

839 This item omits 'spouse within the meaning of the regulations' and substitutes it with 'spouse or de facto partner' in subparagraph 212(3)(b)(i) of the Migration Act. This amendment is necessary to incorporate the new definition of spouse and of de facto partner that have been included in new sections 5F and 5CB respectively, and inserted by Items 20 and 21 of this Schedule.

Item 46

840 This item omits 'such a spouse' and substitutes it with 'a spouse, or de facto partner,' in subparagraph 212(3)(b)(ii) of the Migration Act. This amendment is necessary to incorporate the new definition of 'de facto partner' that includes persons in same-sex relationships as well as opposite-sex relationships.

Item 47

841 This item provides that the application of amendments to section 212 of the Migration Act by this Bill apply in relation to removal and deportation on or after the commencement of this Part. Section 212 deals with liability for the cost of removal or deportation.

Item 48

842 Section 237 of the Migration Act describes the reason for the enactment of offence provisions in Subdivision B of Division 12 of the Migration Act relating to the abuse of laws allowing spouses and de facto partners of Australian citizens or of permanent residents to become permanent residents.

843 This item omits 'married to, or is the de facto spouse of, and has a genuine and continuing marital relationship' and substitutes 'the spouse or de facto partner of, and has a genuine and continuing relationship, involving a shared life to the exclusion of all others' in paragraph 237(a) of the Migration Act. This amendment is necessary to incorporate the new definition of spouse and of de facto partner that have been included in new sections 5F and 5CB inserted by Items 20 and 21 of this Schedule.

Item 49

844 This item repeals paragraph 237(b) of the Migration Act. Paragraph 237(b) refers to criteria in the Regulations relating to interdependent relationships which were used to recognise same-sex relationships. As the Migration Act and Regulations will now recognise same-sex partners as de facto partners, this provision is no longer necessary.

Item 50

845 This item repeals subparagraphs 237(c)(i), (ii) and (iii) of the Migration Act and substitutes: '(i) entering into a married relationship that is not intended to be a genuine and continuing relationship involving a shared life to the exclusion of all others; or (ii) pretending to be a de facto partner of another person.' This provision has been rationalised to pick up language consistent with the definition of spouse in new section 5F, and to pick up the definition of de facto partner in new section 5CB.

Item 51

846 This item repeals the definition of 'interdependency relationship' in section 238 of the Migration Act. The definition of 'interdependency relationship' applied to people in same-sex relationships, and is no longer relevant with the insertion 'de facto partner' in section 5CB of the Migration Act which applies to couples in de facto relationships of the same or opposite sex.

Item 52

847 Section 241 of the Migration Act provides that it is an offence to arrange a pretended de facto relationship to obtain permanent residence. Where a person knows or believes on reasonable grounds that 2 other persons are not de facto spouses of each other for the purposes of the Migration Regulations, the person must not make arrangements that make, or help to make, it look as if those other persons are such spouses with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of being such spouses.

848 This item omits 'de facto spouses of each other for the purposes of the regulations' and substitutes 'de facto partners of each other' in subsection 241(1) of the Migration Act. This is a consequential amendment flowing from Item 20, which inserts a definition of de facto partner in new section 5CB.

Item 53

849 This item omits 'such spouses' (wherever occurring) and substitutes 'such de facto partners' in subsection 241(1) of the Migration Act. This is a consequential amendment flowing from Item 20, which inserts a definition of de facto partner in new section 5CB.

Item 54

850 This item repeals section 242 of the Migration Act which is redundant with the commencement of Item 53 of Part 2 of Schedule 10. As the Migration Act and Regulations will now recognise same-sex partners as de facto partners, this provision is no longer necessary.

Item 55

851 This item omits 'married to, or being, for the purposes of the regulations, the de facto spouse of,' and substitutes 'the spouse or de facto partner of' in subsection 243(1) of the Migration Act. This is a consequential amendment flowing from the new definitions of 'spouse' and 'de facto partner' that have been included in new sections 5F and 5CB respectively, and inserted by Items 20 and 21 of this Schedule.

Item 56

852 Section 243 of the Migration Act provides for offences relating to an application for permanent residence in Australia because of marriage or de facto relationship. Subsection 243(1) requires that a person must not apply for a stay visa (as defined in section 238) on the basis of satisfying a criterion for the visa because of being married to, or being, for the purposes of the Migration Regulations, the de facto spouse of, another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a genuine and continuing marital relationship. 'Marital relationship' is defined in the Migration Regulations to include de facto relationships. The effect of the provision is that it is an offence to seek a stay visa based on a 'sham' marriage or de facto relationship.

853 This item omits 'genuine and continuing marital relationship' and substitutes 'married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate' in subsection 243(1) of the Migration Act. The amendment updates the language of subsection 243(1) to reflect the inclusion of definitions of 'spouse' and 'de facto partner' inserted into the Migration Act as sections 5F and 5CB by Items 20 and 21 of this Schedule.

Item 57

854 This item omits 'married to, or being, for the purposes of the regulations, the de facto spouse of,' and substitutes 'the spouse or de facto partner of' in subsection 243(3) of the Migration Act as a consequence of the insertion of definitions of 'spouse' and 'de facto partner' inserted into the Migration Act as sections 5F and 5CB by Items 20 and 21 of this Schedule.

Item 58

855 Section 243 of the Migration Act provides for offences relating to an application for permanent residence in Australia because of marriage or de facto relationship. Subsection 243(3) requires that a person must not nominate an applicant for a stay visa (as defined in section 238) on the basis of the applicant satisfying a criterion for the visa because of being married to, or being, for the purposes of the Migration Regulations, the de facto spouse of, the person if, at the time of the application, the person does not intend to live permanently with the applicant in a genuine and continuing 'marital relationship'. 'Marital relationship' is defined in the Migration Regulations to include de facto relationships.

856 This item omits 'genuine and continuing marital relationship' and substitutes 'married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate' in subsection 243(3) of the Migration Act. The amendment updates the language of subsection 243(3) to reflect the inclusion of definitions of 'spouse' and 'de facto partner' inserted into the Migration Act as sections 5F and 5CB by Items 20 and 21 of this Schedule.

Item 59

857 This item repeals subsection 244 of the Migration Act. As the Migration Act and Regulations will now recognise same-sex partners as de facto partners, this provision is no longer necessary.

Item 60

858 Section 245 of the Migration Act provides for offences of making statements or providing information that is false or misleading in a material particular to the effect that a person is in a married, de facto or interdependency relationship. This item omits 'have a genuine and continuing marital relationship between them' and substitutes 'are in a married relationship (within the meaning of subsection 5F(2))' in paragraph 245(1)(a) of the Migration Act to reflect the definition of 'spouse' inserted as section 5F by Item 21 of this Schedule.

Item 61

859 This item repeals paragraphs 245(1)(b) and (c) of the Migration Act, which relate to de facto relationships and interdependency relationships, and substitutes a new paragraph (b) to cover de facto relationships as defined in section 5CB. The paragraph will provide that a person must not make statements or provide information that is false or misleading in a material particular to the effect that other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another.

860 New paragraph 245(1)(b) incorporates the requirements of the new definition of 'de facto partner' in section 5CB inserted by Item 20 of this Schedule. The repeal of paragraph 245(1)(c) is necessary to remove the reference to interdependency relationships, which are now covered by the definition of de facto partner.

Item 62

861 This item omits 'have a genuine and continuing marital relationship between them' and substitutes 'are in a married relationship (within the meaning of subsection 5F(2))' in paragraph 245(3)(a) of the Migration Act to reflect the definition of 'spouse' inserted as section 5F by Item 21 of this Schedule.

Item 63

862 Subsection 245(3) of the Migration Act requires that a person must not make statements or provide information that is false or misleading in a material particular to the effect that a person is in a married, de facto or interdependency relationship. This item repeals paragraphs 245(3)(b) and (c) of the Migration Act, which relate to de facto relationships and interdependency relationships, and substitutes a new paragraph (b) to cover de facto relationships as defined in section 5CB. The paragraph will provide that a person must not make statements or provide information that is false or misleading in a material particular to the effect that other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another.

863 New paragraph 245(3)(b) incorporates the requirements of the new definition of 'de facto partner' in section 5CB inserted by Item 20 of this Schedule. The repeal of paragraph 245(3)(c) is necessary to remove the reference to interdependency relationships, which are now covered by the definition of de facto partner.

Item 64

864 This item is an application provision that provides that the amendments to Subdivision B of Division 12 of Part 2 of the Migration Act made by Items 48-63 of this Schedule apply in relation to visas applied for on or after the commencement of this Part.

Item 65

865 Subsection 338(6) of the Migration Act provides that a decision to refuse a non-citizen a visa is reviewable by the Migration Review Tribunal where a number of conditions are satisfied, including that a parent, spouse, child, brother or sister of the non-citizen is an Australian citizen or an Australian permanent resident. This item inserts 'de facto partner,' after 'spouse' in paragraph 338(6)(c) of the Migration Act. This amendment is consequential to the inclusion of the new definition of 'de facto partner' in section 5CB of the Migration Act made by Item 20 of this Schedule.

Item 66

866 This item inserts a note at the end of subsection 338(6) of the Migration Act that states that section 5G may be relevant for determining family relationships for the purposes of subsection 338(6). Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 67

867 This item inserts 'de facto partner,' after 'spouse,' in paragraph 338(7)(b) of the Migration Act. This amendment is consequential to the inclusion in the Migration Act (by Item 20) of the new definition of 'de facto partner' in section 5CB.

Item 68

868 This item inserts a note at the end of subsection 338(7) of the Migration Act that states that section 5G may be relevant for determining family relationships for the purposes of subsection 338(7). Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 69

869 This item is an application provision that provides that the amendments to section 338 of the Migration Act made by Part 2 of Schedule 2 apply in relation to decisions made on or after the commencement of that Part.

Item 70

870 Paragraph 347(2)(c) of the Migration Act provides that if a decision that is reviewable by the Migration Review Tribunal is covered by subsection 338(6) or 338(7), an application for review of that decision may only be made by the relative referred to in subsection 338(6) or 338(7).

871 This item inserts a note at the end of subsection 347(2) of the Migration Act that states that section 5G may be relevant for determining family relationships for the purposes of subsection 347(2). Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 71

872 Section 431 of the Migration Act provides that the Migration Review Tribunal Registrar must ensure the publication of Migration Review Tribunal decisions (including the decision of the Tribunal, the reasons for its decision, the findings on any material questions of fact, and references to the evidence or any other material on which the findings of fact were based) that the Principal Member thinks are of particular interest. Subsection 431(2) provides that the Tribunal must not publish any such decision which may identify an applicant or any relative or dependent of an applicant.

873 This item inserts a note at the end of subsection 431(2) of the Migration Act that section 5G may be relevant for determining family relationships for the purposes of this subsection. Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 72

874 This item omits ', 243 or 244' in subsection 492(2) of the Migration Act and substitutes 'or 243' and is a consequential amendment as a result of the amendment by Item 59 to repeal section 244 of the Migration Act.

Item 73

875 Subsection 501K(2) of the Migration Act provides that the Administrative Appeals Tribunal must not publish any information which may identify an applicant for a protection visa or a protection-related bridging visa, or a person whose protection visa or protection-related bridging visa has been cancelled. In addition, the Tribunal must not publish any information relating to a relative of the person.

876 This item inserts a note at the end of subsection 501K(2) of the Migration Act that section 5G may be relevant for determining family relationships for the purposes of this subsection. Section 5G extends the meaning of ordinary concepts of family and relatives by allowing these relationships to be traced through relationships which arise because of the extended definition of 'child' in section 5CA, and because of the definition of 'de facto partner' in section 5CB, in addition to relationships which are already recognised. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 74

877 This item omits 'married or being the de facto spouse' and substitutes 'the spouse or de facto partner' in subsection 507(1) of the Migration Act. This amendment is necessary to incorporate the new definition of 'spouse' and of 'de facto partner' that have been included in new sections 5F and 5CB respectively, and inserted by Items 20 and 21 of this Schedule.

Item 75

878 This item omits 'de facto spouse' and substitutes 'de facto partner' in paragraph 507(1)(a) of the Migration Act. This amendment is consequential to the inclusion in the Migration Act of the new definition of 'de facto partner' in new section 5CB inserted by Item 20 of this Schedule.

Division 2 - Consequential amendment

Australian Citizenship Act 2007

Item 76

879 This item is a consequential amendment and omits ', 243 or 244' in subparagraph 34(6)(a)(i) in the Citizenship Act 2007 and substitutes 'or 243, or former section 244 (as in force before its repeal by the Same-sex Relationships (Equal Treatment in Commonwealth Laws-General Law Reform) Act 2008 ),'. This maintains the ability of the Minister to revoke a person's Australian citizenship if the person obtained the Minister's approval to become an Australian citizen as a result of migration-related fraud by being convicted (at any time) of an offence against current provisions of the Migration Act and former section 244.

Part 3

Immigration (Education) Act 1971

880 The purpose of the Immigration (Education) Act 1971 is to facilitate in some cases, or require in others, the provision of English courses, English tuition and citizenship courses to certain non-citizens by the Minister for Immigration and Citizenship or the Commonwealth.

881 The Immigration (Education) Act provides for access to English courses and citizenship courses, or teaching and learning materials only to a child under 18 in certain circumstances and dependent on whether the child has a parent who has held or holds a permanent entry permit or a permanent visa. In order to maintain consistency with the Migration Act and to remove discrimination against same-sex de facto couples and their children, amendments provide for the terms 'child' and 'parent' to take their meaning from the Migration Act.

Item 77

882 This item inserts a definition of 'child' into the Immigration (Education) Act referring to the definition in the Migration Act. Item 20 of this Schedule amends the definition in the Migration Act to be non-discriminatory in relation to the children of married, same-sex de facto and opposite-sex de facto couples.

Item 78

883 This item inserts a definition of 'parent' into the Immigration (Education) Act referring to the definition in the Migration Act. Item 18 of this Schedule amends the definition in the Migration Act to be non-discriminatory to cover married parents, opposite sex and same-sex de facto parents.

Part 4

Immigration (Guardianship of Children) Act 1946

884 The purpose of the Immigration (Guardianship of Children) Act 1946 is to ensure that unaccompanied non-citizen minors have a legal guardian in Australia. The Minister for Immigration and Citizenship is the legal guardian of minors to whom the Immigration (Guardianship of Children) Act applies.

885 The Immigration (Guardianship of Children) Act provides for an unaccompanied minor entering Australia to have a legal guardian in Australia. From the commencement of these amendments the non-biological parent of a minor, or the non-biological birth mother and her partner where neither of them are biologically related to the child and the child is the product of their relationship, will be recognised as the legal guardian of the minor. These amendments also provide for relatives of the minor to include those who would be relatives were they married to the minor's blood relatives but who are instead in a de facto relationship with the minor's blood relative (including a same-sex de facto relationship).

Item 79

886 This item inserts a definition of 'parent' into section 4 of the Immigration (Guardianship of Children) Act. The definition expands the classes of person that may be taken to be a parent of a child. The definition does not limit who can be considered to be a parent of a person for the purposes of the Immigration (Guardianship of Children) Act.

887 The definition provides that a parent includes a person who is a parent of a child where that child is the product of a relationship the person has or had as a couple with another person. The other person making up the couple may be the same sex or the opposite sex of the other person. To be a 'product of the relationship', the child must be the biological child of one of the persons in the relationship or have been born to a woman in the relationship. This definition draws on the key definitions of 'child' and 'parent'. A description of these definitions can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 80

888 This item inserts a new definition of 'relative' in the Immigration (Guardianship of Children) Act. The definition expands the ordinary meaning of 'relative' to include someone within the expanded definition of 'parent' in section 4 of the Immigration (Guardianship of Children) Act, and anyone who is a step-parent of the person or who would be except that he or she is not legally married to his or her de facto partner within the meaning of that term in the Acts Interpretation Act. That definition includes persons in a same-sex or opposite-sex de facto relationship.

889 In addition, paragraph (c) of the definition includes a tracing rule that allows relationships to be traced through the relationships in paragraphs (a) and (b). For example, in relation to a child, the other children of the parent are that child's siblings, and are therefore relatives for the purposes of this definition. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 81

890 This item amends section 6 of the Immigration (Guardianship of Children) Act to replace the gender-specific terms 'father and mother' with the gender-neutral term 'parents'. This also gives recognition to the new definition of parent in section 4 inserted by Item 79 of this Schedule.

Item 82

This item provides that the amendments made by Part 4 of Schedule 10 apply in relation to persons under 18 who enter Australia on or after commencement.