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Same-Sex: Same Entitlements: Chapter 16

Same-Sex: Same Entitlements Report


Chapter 16 Additional

Federal and State Legislation

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16.1 What

is this chapter about?

As part of the Inquiry’s audit of federal, state

and territory laws, the Inquiry has identified a range of laws which potentially

discriminate against same-sex couples and families, but do not fall within the

previous topic-specific chapters.

The following

list of legislation sets out those laws, identifies the potentially

discriminatory definitions and notes some of the substantive financial and

work-related provisions which rely on those terms.

The laws cover a range of topics including

insurance, trusts, foreign investment restrictions, investment disclosure rules,

bankruptcy, licensing arrangements and diplomatic privileges, amongst others.

Not all of the legislation will be to the

disadvantage of same-sex couples, but it all appears to treat same-sex and

opposite-sex families differently.

For some of

the laws in the following lists, the relevant definitions of

‘spouse’, ‘relative’, ‘partner’, ‘de

facto spouse’ and ‘child’ clearly exclude a same-sex couple,

the child of a lesbian or gay co-parent or the lesbian or gay co-parents

themselves.

For other laws in the list, there

is no definition of the terms which describe a person’s partner or child.

Chapter 4 on Recognising Relationships and Chapter 5 on Recognising Children

provide some guidance on why federal legislation without definitions may

discriminate against same-sex couples and their children.

The Inquiry has not investigated the possible

interpretations of state and territory legislation without definitions. However,

a number of state and territory laws are listed here to highlight them for

analysis by state and territory

authorities.

The Inquiry notes that there may

be further discriminatory laws in addition to those in this list and the lists

of legislation at the end of each chapter. In particular, there may be

additional federal, state and territory laws which fail to treat the children of

same-sex and opposite-sex couples equally.

The

Inquiry therefore encourages federal, state and territory governments to conduct

their own audits and remedy the remaining discrimination.

16.2 What

additional federal legislation may discriminate against same-sex couples and

their children?

The following list identifies federal laws containing

definitions which appear to discriminate between same-sex and opposite-sex

couples and their children.

The list notes the

sections of the relevant legislation which:

  • contain the relevant definitions (where there are

    definitions)

  • suggest an impact on financial or work-related benefits.

This list should be read in

conjunction with Chapter 4 on Recognising Relationships and Chapter 5 on

Recognising Children. Those chapters will assist in the interpretation of the

relevant definitions.

A brief description of

the financial impact of this legislation can be found in the Inquiry’s

Research

Paper.[1]

Aboriginal

Councils and Associations Act 1976 (Cth)

Definition of ‘spouse’ (s 3) excludes a

same-sex partner. This affects the operation of s

49(1).

Aboriginal Land Grant (Jervis Bay

Territory) Act 1986 (Cth)

Definition of ‘spouse’ excludes a same-sex

partner for the purposes of the definition of ‘relative’ (s 37(1)).

The definition of ‘relative’ (s 37(1)) also excludes a lesbian

co-mother or gay co-father and their children. This impacts on the operation of

s 42.

Australian Meat and Live-Stock

Industry Act 1997 (Cth)

No definition of ‘spouse’ or ‘de facto

spouse’ in the Act. This impacts on the definition of

‘associate’ (s 3) and affects the operation of s

25A.

Bankruptcy Act 1966 (Cth)

No definition of ‘spouse’ in the Act

generally. This will exclude same-sex couples from the operation of ss 60(4),

116, 120, 121, 134(1)(ma) and 139T.

Definition of ‘spouse’ in s 139K excludes a

same-sex partner. The impact of that definition is limited to div 4B.

Definition of ‘de facto spouse’ (s 5) excludes

a same-sex partner. This impacts on the definition of ‘relative’,

which in turn impacts on the definition of ‘related entity’ (s 5).

This affects the operation of ss 73-73C, 120, 139CA, 189A, 194A(5) and

215A(3)-(4).

Definition of ‘child’ (s 5) does not include

the child of a lesbian co-mother or gay co-father (unless adopted). The

definition of ‘relative’ includes a ‘child’. This may

impact on sections using the expression ‘child’ (ss 139L, 139N,

139T(2)(e)), as well as provisions using the expression ‘related

entity’, the definition of which includes a

‘relative’.

Broadcasting

Services Act 1992 (Cth)

No definition of ‘spouse’, ‘de facto

spouse’, ‘parent’ or ‘child’ in the Act. This

impacts on the definition of ‘associate’ (s 6) and will affect the

operation of ss 70(7), 116 and sch

1.

Civil Aviation

(Carriers’ Liability) Act 1959 (Cth)

No definition of ‘spouse’ in the Act. This

will affect the operation of ss 15(d), 38(d).

No definition of ‘de facto spouse’ in the Act.

This will affect the operation of ss 12(3), 12(5), 35(3), 35(5).

No definition of ‘child’ in the Act. This will

affect the operation of ss 12(3), 12(5), 15(d), 35(3), 35(5) and

38(d).

No definition of ‘parent’,

‘step-parent’ or ‘step-child’. This will affect the

operation of ss 12(3), 12(5), 35(3),

35(5).

Corporations Act 2001 (Cth)

Definition of ‘de facto spouse’ (s 9) excludes

a same-sex partner. This affects the operation of ss 213, 228(2), 440J, 601JA

and 601JB.

No definition of ‘spouse’ in the Act. This

impacts on the operation of ss 200C, 200D, 213, 228(2), 440J, 556(2), 567(1),

567(2), 708(12)(a), 1012(9B) and 1346. It also affects the definition of

‘relative’ (s 9), which impacts on the operation of ss 200C, 200D,

228, 440J, 556(2), 567(1), 567(2), 601JA(2)(f), 601JB(2)(e) and

1012H(3)(b).

No definition of ‘parent’ or

‘child’ in the Act, which affects the operation of ss 228(3),

708(12)(a) and 1346.

The definition of ‘relative’ (s 9) excludes a

lesbian co-mother or gay co-father and their children.

The definitions of ‘relative’, ‘de facto

spouse’ and ‘spouse’ impact on the definition of a

‘close associate’ (s 9), which affects the operation of s 588FDA.

These definitions also impact on the definition of ‘related entity’

(s 9), which affects the operation of ss 486A, 588FE, 588FH, 600A, 792A, 795B,

821A and 824B.

The definitions of ‘de facto spouse’ and

‘spouse’ affect the definition of ‘immediate family

member’ (s 9). This impacts on the operation of ss 324CE(5), 324CF(5),

324CG(9) and 324CH(6).

Diplomatic Privileges

and Immunities Act 1967 (Cth)

No definition of ‘member of the family’, as

appearing in ss 9 and 10B.

Education

Services for Overseas Students Act 2000 (Cth)

No definition of ‘spouse’, ‘de facto

spouse’, ‘child’ or ‘parent’ in the Act. This

impacts on the definition of ‘associate’ (s 6) and affects the

operation of ss 9, 11, 17, 83 and

97.

Financial Sector (Shareholdings) Act

1998 (Cth)

No definition of ‘spouse’,

‘parent’, ‘son’ or ‘daughter’ in the Act.

This impacts on the definition of ‘relative’ (sch 1, cl 2), which in

turn affects the definition of ‘associates’ (sch 1, cl 4), affecting

the operation of pt 2 and sch 1 of the

Act.

Foreign Acquisitions and Takeovers Act

1975 (Cth)

No definition of ‘spouse’ or

‘parent’ which impacts on the definition of ‘associate’

in s 6(a). This affects the operation of ss 9-9A, 17A, 17D, 18-21 and

21A.[2]

Foreign

Acquisitions and Takeovers Regulations 1989 (Cth)

Definition of ‘spouse’ (reg 2) excludes a

same-sex partner for the purposes of reg

3(t).

Foreign States Immunities Act 1985 (Cth)

No definition of ‘spouse’ in the Act. This

affects the operation of s 36.

Higher

Education Funding Act 1988 (Cth)

No definition of ‘spouse’ or

‘relative’ in the Act. This impacts on the definition of an

‘overseas student’ (s 3) and affects the operation of ss 13(5),

35(4) and 54.

Higher Education Support Act

2003 (Cth)

No definition of ‘spouse’ or

‘relative’ in the Act. This will impact on the definition of an

‘overseas student’ (sch 1, cl 1) and affects the operation of s

19.102.

Insurance Acquisitions and

Takeovers Act 1991 (Cth)

No definition of ‘spouse’ or

‘parent’ for the purposes of the definition of

‘relative’ (s 4). This will affect the definition of

‘associate’ (s 7) and impact on the operation of ss 5, 14, 36 and

50.

International Organisations (Privileges

and Immunities) Act 1963 (Cth)

No definition of ‘spouse’, which affects the

operation of the Second Schedule, pt 1; Third Schedule, cl 5; and Fourth

Schedule, cls 3 and 6.

No definition of ‘children’ in the Second

Schedule, pt 1.

No definition of ‘dependent relatives’,

affecting the operation of the Fourth Schedule, cls 3 and

6.

Life Insurance Act 1995 (Cth)

Definition of ‘spouse’ (sch 1) excludes a

same-sex partner. This will affect the operation of ss 204, 211 and 212.

No definition of ‘child’. This will affect the

operation of ss 211, 212, 218, 219 and 220.

Passenger Movement Charge Collection Act

1978 (Cth)

Definition of ‘spouse’ (s 3) excludes a

same-sex partner. This affects the operation of s 5.

Definition of ‘child’ (s 3) excludes the child

of a lesbian co-mother or gay co-father. This affects the operation of s 5.

Pooled

Development Funds Act 1992 (Cth)

Definition of ‘de facto spouse’ (s 4(1))

excludes a same-sex partner. This affects the definition of

‘associate’ in s 31(2) and the operation of s 31.

No definition of ‘child’ or

‘parent’ in the Act. This also affects the definition of

‘associate’ (s 31(2)) and the operation of s 31.

Proceeds of Crime Act 2002 (Cth)

No definition of ‘spouse’ in the Act. This

affects the operation of ss 180(1) and 181(1). This also impacts on the

definition of ‘dependant’ (s 338) which affects the operation of ss

24(1), 24A(2), 72.

No definition of ‘de facto spouse’. This

affects the operation of ss 180(1) and 181(1).

No definition of ‘de facto partner’ or

‘child’ in the Act. This also impacts on the definition of

‘dependant’ (s 338) and affects the operation of ss 24(1), 24A(2),

72.

16.3 What

additional state legislation may still discriminate against same-sex couples and

their children?

As discussed in Chapter 4 on Recognising

Relationships, all states and territories have substantially addressed the

discrimination between same-sex and opposite-sex couples.

However, Chapter 5 on Recognising Children

notes that state and territory reforms have been less comprehensive regarding

recognition of the children of same-sex couples.

The focus of this Inquiry has been to audit federal laws. However, the following are some of the state laws identified

in submissions to the Inquiry and as a result of the Inquiry’s research,

which may still discriminate against same-sex couples and their

children.

The Inquiry emphasises that it has

not investigated the various possible interpretations of these state and

territory laws – especially those which do not define the relevant terms.

It may be that state and territory courts will interpret potentially

discriminatory legislation in light of the law reforms removing discrimination

against same-sex couples. However, the Inquiry notes the following laws in order

to attract further investigation.

The Inquiry

also notes that there may be many more state and territory laws which restrict

the financial and work-related entitlements available to same-sex parents and

their children than those in the following list and in the topic-specific

chapters.

16.3.1 New

South Wales

Local Government Act 1993 (NSW)

No definition of ‘spouse’.

Definition of ‘de facto partner’ excludes

same-sex couples, which affects the definition of ‘relative’ (see

Dictionary scheduled to the Act).

Definition of ‘relative’ in relation to

children does not include the child of a lesbian co-mother or gay co-father

(unless adopted).

This impacts on the operation of ss 443, 448, 449, 454 and

664.

Rural Lands Protection Act 1998 (NSW)

No definition of ‘spouse’ or ‘de facto

partner’ in the Act. This impacts on the operation of schs 1 and 5.

Testator’s Family Maintenance and

Guardianship of Infants Act 1916 (NSW)

No definition of ‘husband’,

‘wife’, ‘widow’ or ‘child’ under the Act.

This impacts on the operation of ss 2, 3 and 5.

16.3.2 Victoria

Aboriginal Lands Act 1970 (Vic)

No definition of ‘husband’,

‘wife’, ‘child’ or ‘parent’ under the Act.

This impacts on the operation of s

14.

Members of Parliament (Register of

Interests) Act 1978 (Vic)

No definition of ‘spouse’ or

‘child’ for the purposes of the definition of ‘family’

(s 2). This impacts on the operation of s

6.

Rural Finance Act 1988 (Vic)

No definition of ‘spouse’ under the Act. This

impacts on the operation of ss 32, 35 and 44.

No definition of ‘child’ under the Act. This

impacts on the operation of ss 32, 33, 35 and 44.

No definition of ‘widow’ under the Act. This

impacts on the operation of s 33.

16.3.3 Queensland

Aboriginal Land Act 1991 (Qld)

No definition of ‘husband’ or

‘wife’ under the Act. This impacts on the operation of ss 39 and 76.

Trusts Act 1973 (Qld)

No definition of ‘husband’ or

‘wife’ under the Act. This impacts on the operation of s 64. There

is also no definition of a beneficiary’s ‘issue’ as that term

is used in s 64.

16.3.4 South

Australia

Law of Property Act 1936 (SA)

No definition of ‘husband’ or

‘wife’ under the Act. This impacts on the operation of ss 40, 42,

94, 95, 95A, 96, 98, 100, 101,102, 104, 105, 105A, 106, 108, 109 and 111.

No definition of ‘child’ or

‘children’ under the Act. This impacts on the operation of ss 60, 61

and 100.

16.4 What

are the Inquiry’s recommendations regarding these additional federal and

state laws?