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Same-Sex: Same Entitlements: Chapter 4

Same-Sex: Same Entitlements Report


 

Chapter 4 Recognising

Relationships of Same-Sex Couples

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4.1 What

is this chapter about?

It is simple to remove discrimination against same-sex

couples in laws conferring financial and work-related benefits: amend the

definitions describing a couple to include same-sex and opposite-sex couples

alike.

The primary source of discrimination

against same-sex couples in federal laws conferring financial and work-related

entitlements is the way in which terms such as ‘spouse’, ‘de

facto spouse’, ‘partner’, ‘member of a couple’ and

other similar terms are defined in legislation. These definitions routinely

include an opposite-sex partner and exclude a same-sex partner.

The consequence of these narrow definitions is

that same-sex partners are treated differently to opposite-sex partners in a

myriad of laws conferring financial and work-related entitlements. This

differential treatment is contrary to one of the most fundamental principles of

international law: the right to equality.

Some

federal legislation has introduced the concept of an ‘interdependency

relationship’ to allow same-sex couples access to selected entitlements

which are already available to opposite-sex de facto couples. This new category

of relationship has undoubtedly improved access to certain superannuation,

employment and visa entitlements for some same-sex couples. But the introduction

of a new category of relationship is an unnecessary and overly complicated

method of removing discrimination against same-sex couples. It could end up

giving financial entitlements to more people than intended. And it suggests that

a same-sex relationship is unequal to an opposite-sex de facto relationship.

Rather than create a new category of relationship, same-sex couples should be

included in the existing category of couple

relationships.

Where the definition of

‘spouse’, ‘de facto spouse’, ‘partner’, or

‘member of a couple’ already includes a person in an opposite-sex

couple it should also include a person in a same-sex couple. There is no need to

rewrite the entirety of social security, taxation, superannuation,

workers’ compensation, aged care, migration and other legislation. But

there is a need to redefine the way a relationship is recognised under that

legislation.

This type of reform has already

occurred in all states and territories and it should now occur in the federal

jurisdiction.

This chapter discusses how the

definitions currently used in federal law exclude same-sex couples. The chapter

also considers the new ‘interdependency relationship’ provisions in

federal law and discusses the weaknesses of that approach in addressing

discrimination against same-sex couples.

The

chapter summarises how all the states and territories have reformed their laws

to remove discrimination against same-sex couples. It also considers how the

introduction of formal relationship recognition schemes for same-sex couples may

assist in accessing financial and work-related

entitlements.

Finally, the chapter makes

recommendations about how federal law should be amended to remove discrimination

against same-sex couples when accessing financial and work-related

entitlements.

Specifically, this chapter

addresses the following questions:

  • Do federal laws giving financial and work-related

    entitlements currently recognise same-sex relationships?

  • Should the ‘interdependency’ category of

    relationships be extended to all federal laws?

  • How have states and territories removed discrimination

    against same-sex couples?

  • Would formal relationship recognition schemes help

    same-sex couples access financial and work-related entitlements?

  • How should federal law change to ensure same-sex couples

    can access financial and work-related entitlements?

4.2 Do

federal laws giving financial and work-related entitlements currently recognise

same-sex relationships?

There is a wide range of federal legislation which

uses different definitions of ‘spouse’, ‘de facto

spouse’, ‘marital relationship’, ‘member of a

couple’, ‘partner’ and other terms used to describe a couple.

There is also a range of federal legislation which uses terms like

‘spouse’ and ‘de facto spouse’ in substantive

provisions, but does not define those words.

None of these laws recognise same-sex

relationships.

Superannuation and migration

legislation and Australian Defence Force instructions have introduced the

concept of an ‘interdependency relationship’. This new category

recognises a relationship where there is an element of interdependency between

two people – be it between members of a same-sex couple or any other two

people who rely on each other. Legislation including the ‘interdependency

relationship’ category will usually mean that a same-sex couple can access

similar entitlements to an opposite-sex couple. But a same-sex couple is

sometimes required to meet different criteria to qualify for those entitlements

when compared with an opposite-sex couple.

The

following sections discuss the different definitions of ‘spouse’,

‘de facto spouse’, ‘partner’, ‘member of a

couple’, ‘interdependency relationship’ and other such terms,

and how they treat a same-sex couple.

The

discussion is organised according to the features of the definitions which

create the discrimination, rather than the terminology used. The categories

are:

  • definitions using the words ‘opposite

    sex’

  • definitions using the words ‘husband or

    wife’

  • definitions using the words ‘spouse’ or

    ‘de facto spouse’

  • definitions using the words ‘marriage-like

    relationship’

  • definitions using the words ‘interdependency

    relationship’

  • legislation without definitions.

4.2.1 Definitions

using ‘opposite sex’ exclude a same-sex partner

There are some definitions which explicitly use the

words ‘opposite sex’ to identify the second member of a couple.

These definitions unambiguously exclude same-sex

relationships.

The following are examples of

different definitions using these words.

(a) Definitions

of ‘spouse’ and ‘de facto spouse’ using ‘opposite

sex’

Some definitions of ‘spouse’, ‘de

facto spouse’ and ‘de facto relationship’ include a genuine

relationship with a person of the ‘opposite sex’, even though

the woman and man are not married.

For example,

the Defence Force (Home Loans Assistance) Act 1990 (Cth) defines a

‘spouse’ as follows:

a person of the opposite sex to the person who

lives with the person as his or her spouse, on a permanent and bona fide

domestic basis, although not legally married to the

person.[1] (emphasis

added)

The Medicare legislation defines a

‘de facto spouse’ as:

a person who is living with another person of the opposite sex on a bona fide domestic basis although not legally

married to that other person.[2] (emphasis added)

Similarly, the Migration

Regulations 1994 (Cth) state that two people will be in a ‘de facto

relationship’ if they are of the opposite sex to each

other.[3]

(b) Definitions

of ‘partner’ using ‘opposite sex’

The Military Rehabilitation and Compensation Act

2004 (Cth) relevantly defines a member’s ‘partner’ as

follows:

a person of the opposite sex to the member in

respect of whom at least one of the following applies:

...

(b) the person is legally married to the member;

(c) the person lives with the member as his or her partner

on a bona fide domestic basis although not legally married to the

member.[4] (emphasis

added)

(c) Definitions

of ‘member of a couple’ using ‘opposite

sex’

Social security legislation, income tax legislation

and legislation conferring veterans’ entitlements define a

‘partner’ by reference to a person who is a ‘member of a

couple’. The definitions of ‘member of a couple’ specify that

the two people are of the ‘opposite sex’.

For example, the social security legislation

states that a person will be a ‘member of a couple’ if a person is

married, or:

...

(b) all of the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner

is, in the [decision-maker’s] opinion (formed as mentioned in

subsections (3) and (3A)), a marriage-like relationship;

...[5] (emphasis

added)

The legislation goes on to set out

criteria of what constitutes a ‘marriage-like relationship’ (see

section 4.2.4 below).

4.2.2 Definitions

using ‘husband or wife’ exclude a same-sex partner

Some definitions of ‘spouse’, ‘de

facto spouse’ and ‘marital relationship’ use the words

‘husband or wife’ to describe the quality of the relationship

between an unmarried couple.

In Gregory

Brown v Commissioner of Superannuation, the Administrative Appeals Tribunal

found that the terms ‘husband’ and ‘wife’ do not require

that a couple be married.[6] But they

do require a woman and man to be involved in the relationship. Specifically, the

Tribunal stated:

It is unnecessary for us to determine in these proceedings

whether the words ‘husband’ and ‘wife’ now include men

and women who live together in a de facto relationship without having undergone

a formal marriage ceremony. We are inclined to think that they might. If so, the

meaning of the words has indeed moved on since the compilation of the Macquarie

Dictionary. However, any such movement, if it has occurred, reflects changing

social attitudes towards the necessity of undergoing a marriage ceremony in

order to have a marital relationship. It does not, in our view, reflect any

diminution of the gender connotations in these

words.[7]

(a) Definitions

of ‘spouse’ and ‘de facto spouse’ using ‘husband

or wife’

Some of the definitions define a ‘spouse’

or ‘de facto spouse’ to include a person who is not legally married,

but who lives with another person on a genuine domestic basis as

husband or wife’.

For

example, tax and superannuation legislation uses the following definition of

‘spouse’:

a person who, although not legally married to the person,

lives with the person on a genuine domestic basis as the person’s husband or wife.[8] (emphasis

added)

Some employment laws use the words

‘husband or wife’ and ‘opposite sex’ in the same

definition of ‘de facto spouse’. For example the Workplace

Relations Act 1996 (Cth) defines a ‘de facto spouse’ of an

employee as:

a person of the opposite sex to the employee who

lives with the employee as the employee’s husband or wife on a

genuine domestic basis although not legally married to the

employee.[9] (emphasis

added)

It is clear that this type of definition

excludes a same-sex couple by using the terms ‘husband’,

‘wife’ and ‘opposite sex’ to describe the

relationship.

(b) Definitions

of ‘marital relationship’ using ‘husband or

wife’

Some legislation uses the term ‘marital

relationship’ to describe a genuine relationship between two people,

whether or not they are legally married. Those definitions tend to use the words

‘husband or wife’.

For example,

some superannuation legislation uses the following words to describe a marital

relationship:

a person had a marital relationship with another

person at a particular time if the person ordinarily lived with that other

person as that other person’s husband or wife on a permanent and

bona fide domestic basis at that

time.[10] (emphasis added)

4.2.3 Definitions

using ‘spouse’ probably exclude a same-sex partner

Some definitions of ‘spouse’ or ‘de

facto spouse’ include a person who is not legally married, but who lives

with another person:

  • on a genuine domestic basis as a

    spouse’, or

  • in a marriage-like relationship.

For example, the Parliamentary

Entitlements Act 1990 (Cth) defines a ‘spouse’ to

include:

a person who is living with the member as the spouse of the member on a genuine domestic basis although not legally married to

the member.[11] (emphasis

added)

Although these definitions broaden the

coverage of spouse to include a person who is not legally married, they are

unlikely to cover a same-sex partner for several reasons.

Firstly, some of the definitions explicitly

exclude a same-sex partner by including the words ‘opposite sex’ as

well as

‘spouse’.[12]

Secondly,

even where the words ‘opposite sex’ are not used, case law suggests

that using the word ‘spouse’ or ‘marriage-like

relationship’ will exclude a same-sex partner.

In 1998, the Federal Court held in Commonwealth of Australia v HREOC and Muller (Muller’s Case)

that living ‘as a spouse’ meant that a couple, although not married,

must be capable of becoming legally

married.[13] Since a same-sex couple

cannot marry in Australia, they cannot qualify under a definition using the word

‘spouse’.

The reasoning in Muller’s Case is debatable because heterosexual de facto partners

are recognised in numerous federal statutes even if one of them is still in a

current legal marriage with another person. Such couples live ‘as a

spouse’ even though they are not able to

marry.[14]

Further, since 1998, many state laws now

define a ‘spouse’ to include a same-sex

partner.[15] So, it could be argued

that these developments will change the interpretation of the phrase

‘living as a spouse’.

However,

based on the law as it stands in Muller’s Case, using

‘spouse’ in any part of a definition of a couple in federal law is

likely to exclude a same-sex partner.

4.2.4 Definitions

using ‘marriage-like relationship’ probably exclude a same-sex

partner

The Aged Care Act 1997 (Cth) uses the words

‘marriage-like relationship’ to define a ‘member of a

couple’. A person will be a ‘member of a couple’ if he or she

is:

a person who lives with another person in a marriage-like relationship, although not legally married to the other

person.[16] (emphasis

added)

Again, it is arguable that a

‘marriage-like relationship’ could include a genuine same-sex

relationship because some state legislation now describes a same-sex and

opposite-sex de facto relationship as a ‘marriage-like

relationship’.[17] However,

the reasoning in Muller’s Case suggests that this interpretation is

unlikely to be adopted.

The Social Security

Act 1991 (Cth) also uses the words ‘marriage-like relationship’

to help define a ‘member of a

couple’.[18] The legislation

sets out a range of criteria indicating what amounts to a ‘marriage-like

relationship’.[19] While those

criteria do not specifically exclude a same-sex relationship, the precursor to

considering whether a person is in a ‘marriage-like relationship’ is

that he or she is an opposite-sex ‘member of a

couple’.[20]

4.2.5 Laws

where there are no definitions probably exclude a same-sex

relationship

There is some legislation which uses the term

‘spouse’ without defining the

term.[21] Other legislation uses the

term ‘de facto spouse’ without defining that

term.[22]

While each piece of legislation should be

interpreted in the context of its own provisions, it is unlikely that those

terms will include same-sex partnerships. This is because the approach taken in Muller’s Case to the term ‘spouse’ excludes a same-sex

partner. Further, the terms ‘spouse’ and ‘de facto

spouse’ are routinely defined in federal legislation in a way that

excludes same-sex partners.

4.2.6 An

‘interdependency’ relationship generally includes a same-sex

relationship

There are three different areas of federal law which

incorporate an ‘interdependency’ category:

  • superannuation (and superannuation tax) law
  • migration law
  • Australian Defence Force instructions relating to certain

    defence force personnel.

In each of

these three areas, the interdependency category was introduced to broaden who

would qualify for the relevant entitlements and

benefits.[23] These definitions will

generally include people in a same-sex relationship. They may also include

people in other forms of dependency relationships – for example, two

elderly friends or siblings living with, and caring for, each other.
Under migration law and defence force

instructions, a same-sex couple seeking to qualify as an interdependency

relationship must prove similar relationship characteristics as an opposite-sex

couple.[24] However, in

superannuation law, the ‘interdependency’ criteria shifts the focus

towards a carer relationship and away from a couple relationship. This

may mean that some same-sex couples will be excluded from superannuation

benefits which would be available to an opposite-sex couple in the same

circumstances.

The definition of

‘interdependency relationship’ in the Superannuation Industry

(Supervision) Act 1993 (Cth) relevantly reads as follows:

2 persons (whether or not related by family) have an

interdependency relationship if:

(a) they have a close personal relationship; and

(b) they live together; and

(c) one or each of them provides the other with financial

support; and

(d) one or each of them provides the other with domestic

support and personal

care.[25]

The

various interdependency definitions are discussed in more detail in Chapter 6 on

Employment, Chapter 13 on Superannuation and Chapter 15 on

Migration.

4.3 Should

the ‘interdependency’ category of relationships be extended to all

federal laws?

As discussed above, the few areas which give equal

access to same-sex couples do so through the introduction of an

‘interdependency’ category of relationships.

The introduction of this category has meant

that same-sex couples can now access superannuation, migration and certain

defence force employment entitlements that were previously denied to them.

However, the ‘interdependency’ category has not brought about full

equality to same-sex couples.

If the goal of

legislative change is to remove discrimination against same-sex couples, then

there are several reasons why using an ‘interdependency’ category is

inappropriate.

4.3.1 An

‘interdependency’ category will give financial entitlements to

people who are not in a couple

Most of the legislation under discussion in this

report confines rights to members of a couple. There are very few instances

where financial benefits like tax, social security and workers’

compensation are intended to extend to a broader range of non-couple

relationships.

Using an

‘interdependency’ relationship as a tool for including same-sex

couples could have the unintended consequence of covering non-couple

relationships – for example friends or siblings living together and caring

for each other in old age.

4.3.2 An

‘interdependency’ relationship may impose different criteria than a

couple relationship

In order to ensure that the

‘interdependency’ relationship category does not cover too many

people, legislation may (and does in the case of superannuation) impose more

onerous criteria to qualify for a benefit.

This

does not provide equality for same-sex couples because it does not recognise

them on the same terms as opposite-sex couples. It may be more difficult for a

same-sex couple to qualify for the relevant entitlement than it would be for an

opposite-sex couple in the same situation.

4.3.3 An

‘interdependency’ relationship mischaracterises a same-sex

relationship

Some gay and lesbian groups have rejected the use of

‘interdependency’ to describe their relationships, because it does

not characterise same-sex partners as committed and intimate

couples.[26]

The ‘interdependency’ term

suggests that same-sex couples are different to, and lesser than, similarly

situated opposite-sex couples. Put another way, it is an almost de facto

relationship, or a de facto de facto

relationship.

This is not only insulting to the

couple; it imposes an unspoken hurdle in front of a same-sex couple trying to

prove the genuineness of the partnership.

James Magel describes his feelings about the

term ‘interdependency’ as follows:

This is a prime example of how federal law discriminates

by only allowing the word ‘de facto’ to apply to heterosexual

couples. Furthermore the use of ‘interdependent’ is a demeaning

manner in which to acknowledge a same-sex couple that has been living together

for a long time. It is a ‘cop out’ because the term itself only

wishes to acknowledge some interdependency instead of acknowledging that it is a

bone fide

relationship.[27]

Miranda

Stewart argues that the term ‘interdependency’ should only be used

in relation to non-couples:

While the notion of ‘interdependency

relationship’ in the superannuation law may have a place with respect to

non-couple interdependent relationships, it is not an adequate mechanism for

recognition of same-sex

couples.[28]

4.3.4 A

federal ‘interdependency’ category creates inconsistencies with

state and territory laws

Using an ‘interdependency’ relationship

category instead of a ‘de facto’ relationship category creates

further inconsistencies between federal law and state and territory laws. This

can create uncertainty and difficulties for same-sex couples trying to assert

their right to financial and work-related entitlements in state, territory and

federal jurisdictions.

As discussed in the

following section, all states and territories have amended their laws to ensure

that same-sex and opposite-sex couples are covered in the same category of

relationship – be it ‘de facto relationship’, ‘domestic

relationship’ or ‘significant

relationship’.

Some states and

territories have also introduced a category of relationship which captures

people who are dependent on each other (interdependent) but not in a

couple.

Creating one category for people

who are in a couple (irrespective of gender), and another category for people who are interdependent but not in a couple, is a more appropriate

way to ensure equality for same-sex couples. It is also a better way to contain

the scope of entitlements available to people who are not in a

couple.

4.4 How

have states and territories removed discrimination against same-sex

couples?

The way to remove discrimination against same-sex

couples is to include same-sex couples in the definitions which already cover

opposite-sex couples. This is what occurred in state and territory laws as a

result of law reforms taking place between 1999 and 2006.

As described in more detail below, each state

and territory enacted legislation which simultaneously amended a wide range of

existing legislation (omnibus legislation). In each case, the amending

legislation identified and amended (or replaced) definitions relating to de

facto couples, which otherwise failed to include same-sex

couples.

The effect of these reforms is that,

in almost all circumstances, same-sex and opposite-sex couples can access the

same state and territory financial and work-related entitlements. Where

differences still exist they have been noted elsewhere in this

report.

There is also a far higher degree of

consistency in the definitions used within and between states and territories.

‘De facto relationship’ and ‘de facto partner’ are the

most commonly used terms in state and territory law. The meaning of these terms

is well understood and the courts have developed case law around borderline

determinations which dates back to the

1980s.[29]

The

state and territory reform process provides a useful model for federal law

reform. In particular, it is worth noting that the states and territories did

not add a category of ‘interdependency’ to cover same-sex couples.

Rather, they made sure that the definitions of ‘de facto’,

‘domestic’ or ‘significant’ relationships include

same-sex couples and opposite-sex couples alike.

4.4.1 NSW

reforms (1999)

In NSW, the Property (Relationships) Legislation

Amendment Act 1999 (NSW) inserted a new definition of ‘de facto

relationship’ into what was the De Facto Relationships Act 1984 (NSW) (now the Property (Relationships) Act 1984 (NSW)) and amended

around 20 other pieces of legislation.

These

amendments introduced the terms ‘de facto relationship’ and

‘de facto partner’. A ‘de facto relationship’ is now

defined in NSW as:

a relationship between two adult persons:

(a) who live together as a couple, and

(b) who are not married to one another or related by

family.[30]

There are also criteria setting out what will

constitute a ‘de facto

relationship’.[31]

As a result of these amendments, in some NSW

legislation, ‘spouse’ is now defined to include a party to a

‘de facto relationship’. Thus, in some circumstances, a same-sex

partner will be accessing benefits available to a ‘spouse’ even

though the couple are not married and have no possibility of marrying under

federal

law.[32]

In

2000, the NSW Parliament amended its superannuation legislation to ensure equal

access for same-sex couples.[33] In

2002, the Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW)

amended around 25 additional laws to include same-sex

couples.[34]

The NSW Law Reform Commission and NSW

Anti-Discrimination Board have both identified further areas for

reform.[35]

4.4.2 Victorian

reforms (2001)

In 2001, the Victorian Parliament introduced two

pieces of amending legislation – the Statute Law Amendment

(Relationships) Act 2001 (Vic) and the Statute Law Further Amendment

(Relationships) Act 2001 (Vic). Together they amended around 60 enactments,

introducing the term ‘domestic partner’ and replacing definitions of

‘de facto spouse’ and in some instances

‘spouse’.[36] In some

legislation, the term ‘domestic partner’ has been inserted as an

additional definition of a relationship.

A

‘domestic partner’ of a person is now defined in Victorian law

as:

a person with whom the person is or has been in a domestic

relationship.[37]

A

‘domestic relationship’ means:

the relationship between two people who, although not

married to each other, are living or have lived together as a couple on a

genuine domestic basis (irrespective of

gender).[38]

There

are also criteria setting out what will constitute a ‘domestic

relationship’.[39]

The Statute Law Amendment (Relationships)

Act 2001 (Vic) also adds a new category of relationship to certain laws for

couples who do not live with each other. This category is also called

‘domestic partner’:

‘domestic partner’ of a person means an

adult person to whom the person is not married but with whom the person is in a

relationship as a couple where one or each of them provides personal or

financial commitment and support of a domestic nature for the material benefit

of the other, irrespective of their genders and whether or not they are living

under the same roof, but does not include a person who provides domestic support

and personal care to the person—

(a) for fee or reward; or

(b) on behalf of another person or an organisation

(including a government or government agency, a body corporate or a charitable

or benevolent

organisation).[40]

This

definition applies to health-related legislation, legislation dealing with

criminal law and consumer and business

legislation.

The submission from the Equal

Opportunity Commission of Victoria identifies further areas for reform in the

future.[41]

4.4.3 Queensland

reforms (2002)

In 2002, the Discrimination Law Amendment Act

2002 (Qld) amended a wide range of existing Acts to introduce the term

‘de facto partner’ as a category of ‘spouse’ or to

replace the term ‘de facto spouse’ with ‘de facto

partner’.[42] The new

definition of ‘de facto partner’ (which is very similar to the NSW

definition) is as follows:

either 1 of 2 persons who are living together as a couple

on a genuine domestic basis but who are not married to each other or related by

family.[43]
There

are also criteria setting out what will constitute a ‘de facto

partner’.[44]

Importantly, these amendments also made

changes to the Acts Interpretation Act 1954 (Qld). This Act now says that

any reference to a ‘spouse’ in other legislation includes a

‘de facto partner’ unless the particular legislation expressly

states the contrary.[45] Thus, a

same-sex partner in Queensland now has access to entitlements available to a

‘spouse’.

The submission from the

Anti-Discrimination Commission Queensland identifies further potential areas for

reform.[46]

4.4.4 Western

Australian reforms (2002-2003)

In 2002 and 2003, the Western Australian Parliament

passed the Acts Amendment (Lesbian and Gay Reform) Act 2002 (WA) and the Acts Amendment (Equality of Status) Act 2003 (WA). These Acts removed

discriminatory definitions from many pieces of Western Australian legislation.

This was largely done through introducing the terms ‘de facto

partner’ and ‘de facto relationship’, for example by replacing

the words ‘de facto spouse’ with ‘de facto

partner’.[47]

Unlike

other states, the definition of ‘de facto relationship’ under the Interpretation Act 1984 (WA) refers to a ‘marriage-like

relationship’ as follows:

a relationship (other than legal marriage) between 2

persons who live together in a marriage-like

relationship.[48]

A

later subsection clarifies that the two persons can be of the same

sex.[49]

There

are also criteria setting out what will constitute a ‘de facto

relationship’.[50]

In

some cases, these amendments gave same-sex couples the same entitlements as a

‘spouse’, by including a ‘de facto partner’ in the

definition of ‘spouse’ or inserting a reference to a ‘de facto

partner’ directly after a reference to

‘spouse’.[51]

A

number of people spoke to the Inquiry about the positive impact of de facto laws

in Western

Australia.[52]

4.4.5 Northern

Territory reforms (2003)

In 2003, the Northern Territory Parliament enacted the Law Reform (Gender, Sexuality and De Facto Relationships) Act 2003 (NT).

That legislation amended Northern Territory legislation by redefining the term

‘de facto partner’ to include same-sex

couples.

Northern Territory law had already

established a distinction between the definition of ‘spouse’ (people

who are married) and the definition of a de facto ‘partner’ (people

who are not married) so the legislative terminology did not need to change, just

the scope of the definition of de facto

‘partner’.[53]

The

new definition of de facto partner is similar to the definition used in WA, in

that it refers to a ‘marriage-like relationship’:

2 persons are in a de facto relationship if they are not

married but have a marriage-like

relationship.[54]

A later subsection clarifies that the two

persons can be of the same sex.[55]

There are also criteria setting out what will

constitute a ‘de facto

relationship’.[56]

4.4.6 Tasmanian

reforms (2003)

In 2003, the Tasmanian Parliament amended around 70

laws through the Relationships Act 2003 (Tas) and the Relationships

(Consequential Amendments) Act 2003 (Tas).[57]

There are three main differences between the

Tasmanian reforms and the reforms in other states and territories.

Firstly, the Tasmanian legislation is the only

one that uses the term ‘significant relationship’ to describe an

unmarried

couple.[58]

Secondly,

the Tasmanian reforms introduce a relationship register alongside the

introduction of the term ‘significant

relationship’.[59] A couple

(same-sex or opposite-sex) who registers their relationship as a significant

relationship will have prima facie proof of the existence of that

relationship.[60]

Thirdly,

Tasmanian law does not require the couple to live together in order to

prove a significant relationship. This is probably because of the registration

scheme. A registered couple has prima facie proof of the existence of their

relationship, so cohabitation need not be a fundamental element of proving a

‘significant relationship’.

The

definition of ‘significant relationship’ is:

a relationship between two adult persons

(a) who have a relationship as a couple; and

(b) who are not married to one another or related by

family.[61]

There

are also criteria setting out when a ‘significant relationship’

exists even if the relationship has not been

registered.[62]

4.4.7 Australian

Capital Territory reforms (2003-2004)

Although the ACT Parliament had already made some

legislative amendments in 1994, more sweeping reforms occurred in 2003 and

2004.[63]

The Legislation (Gay, Lesbian and

Transgender) Amendment Act 2003 (ACT) and the Sexuality Discrimination

Legislation Amendment Act 2004 (ACT) together amended a wide range of ACT

legislation. Among the amendments was the replacement of the term

‘spouse’ with ‘domestic

partner’.[64]

The

definition of ‘domestic partnership’ is very similar to the

definition of ‘de facto partnership’ in other states except that it

explicitly includes people of the same sex. The definition reads as

follows:

the relationship between 2 people, whether of a different

or the same sex, living together as a couple on a genuine domestic

basis.[65]

An

earlier subsection provides that ‘domestic partner’ refers to a

person who lives with another person in a ‘domestic partnership’ and

also a spouse.[66] There are also

criteria setting out what will constitute a ‘domestic

relationship’.[67]

4.4.8 South

Australian reforms (2006)

South Australia was the last state to enact reforms in

the area of de facto relationships. The Statutes Amendment (Domestic

Partners) Act 2006 (SA) was assented to on 14 December 2006. However,

the Act had not come into force as at 10 April

2007.

The legislation will amend around 90

South Australian enactments by introducing the concept of a ‘domestic

partner’, which is defined as follows:

A person is, on a certain date, the domestic partner of

another person if he or she is, on that date, living with that person in a close

personal relationship and—

(a) he or she—

(i) has so lived with that other person continuously for

the period of 3 years immediately preceding that date; or

(ii) has during the period of 4 years immediately

preceding that date so lived with that other person for periods aggregating not

less than 3 years; or

(b) a child, of whom he or she and the other person are

the parents, has been born (whether or not the child is still living at that

date).[68]

The

Act also allows for two people to apply to the Court for a declaration of

domestic partnership.[69] However,

this declaration has limited impact as:

[i]t must not be inferred from the fact that the Court has

declared that 2 persons were domestic partners 1 of the other, on a certain

date, that they were domestic partners at any prior or subsequent

date.[70]

There

are also criteria setting out what will constitute a ‘domestic

partnership’.[71]

4.5 Would

formal relationship recognition schemes help same-sex couples access financial

and work-related entitlements?

Many submissions to the Inquiry discuss the importance

of formal recognition of same-sex relationships through registration schemes,

civil unions or marriage.[72] They

also discuss some of the advantages and disadvantages of the different

recognition models.

Recent consultations and

surveys by a variety of gay and lesbian lobby groups note general support for

formal relationship recognition schemes. However, there does not appear to be

consensus about the most appropriate way to recognise same-sex relationships

when given the choice between registration schemes, civil unions, or same-sex

marriage.[73]

On

the other hand, there is absolute consensus that gay and lesbian couples should

have the same rights to financial and work-related entitlements as their

opposite-sex counterparts. This is the primary goal of this

Inquiry.

The following discussion focuses on

whether formal systems of relationship recognition of same-sex couples could

assist those couples in accessing financial and work-related entitlements. In

particular, the discussion highlights how formal relationship recognition may

assist a same-sex couple to prove the existence of their relationship for the

purposes of accessing financial and work-related

entitlements.

The Inquiry recognises that

formal relationship recognition is an important issue to many people for reasons

other than access to financial entitlements.The recent report of the

Gay and Lesbian Rights Lobby (NSW), All Love is Equal, highlights that

for some people, formal relationship recognition is seen not only as a path to

legal rights and equality, but as an important symbolic expression of love

between two people.[74] Several

written submissions and many of the people who attended the Inquiry’s

forums and hearings expressed a similar

view.[75]

Further, while only some people in same-sex

relationships wish to formalise their relationships through marriage, civil

union or registration, many wish to have the option to do so, just like an

opposite-sex couple.[76]

These are all valid and important arguments.

However, the focus of this Inquiry is on how formal relationship recognition

might help or hinder access to financial and work-related

entitlements.

4.5.1 Three

possible models of relationship recognition

Submissions to the Inquiry discuss three models of

formal relationship recognition for same-sex couples:

  • relationship registration schemes
  • civil unions
  • same-sex

    marriage.

Of these models, only

relationship registration currently exists as an option for some same-sex

couples in Australia.

(a) Relationship

registration for same-sex couples

Registration of a relationship does not confer legal

rights in itself but it may assist in demonstrating the existence of a de facto

relationship.

Tasmania introduced registration

for ‘significant relationships’ under the Relationships Act 2003 (Tas). Both same-sex and opposite-sex couples can register their

relationship.[77] Some city councils

have also introduced relationship registration

schemes.[78]

However, it seems that few couples have

registered under these

schemes.[79]

(b) Civil

union for same-sex couples

Civil unions may provide greater ceremony and

symbolism than relationship registration. However, there is currently no civil

union scheme in Australia.

The ACT government

introduced legislation for civil unions in early 2006. Shortly after the Civil Unions Act 2006 (ACT) passed through the ACT Legislative Assembly,

it was disallowed by the federal government pursuant to the Australian

Capital Territory (Self-Government) Act 1988 (Cth).[80]

In

disallowing the legislation, the federal Attorney-General stated that the civil

union scheme proposed by the ACT government was ‘deliberately intended to

make the ACT arrangements as close as possible to marriage; when the marriage

power is clearly vested in the

Commonwealth’.[81]

On

12 December 2006, the ACT Attorney-General presented the Civil Partnerships

Bill 2006 to the ACT Legislative Assembly. The new Bill is similar to the

disallowed Civil Unions Act 2006 (ACT) but with modifications designed to

address the concerns expressed by the federal Attorney-General. The Bill uses

the term ‘civil partnership’ to avoid using the language of

marriage.[82] However, the federal

Attorney-General has indicated that the new Bill still does not address the

federal government’s

concerns.[83]

There

are various models of civil unions in other

countries.[84]

(c) Marriage

for same-sex couples

In 2004, the federal government amended the Marriage Act 1961 (Cth) to clarify that ‘marriage’ is

‘the union of a man and a woman to the exclusion of all

others’.[85]

Same-sex

marriage is permitted in a range of other

countries.[86] However, the Marriage Amendment Act 2004 (Cth) clarified that same-sex marriages

taking place overseas will not be recognised under Australian

law.[87]

Marriage

is clearly the most politically contentious of the three models. Many of the

submissions to the Inquiry emphasised the utmost importance of giving same-sex

couples and opposite-sex couples the same right to affirm their relationship in

marriage.[88] Other submissions

argued that same-sex marriage: ‘promotes different models, values and

behaviours’ compared to opposite-sex

marriage,[89] is ‘highly

unstable’,[90] and is not in

the best interests of children.[91]

4.5.2 Formal

recognition can provide evidence of a relationship

While there are many

persuasive and valid reasons for introducing formal relationship recognition for

same-sex couples, the focus of this Inquiry is on how formal relationship

recognition could help a same-sex couple prove the right to financial

entitlements.

Sometimes it is difficult for a

couple to provide the evidence necessary to prove the criteria for a genuine

domestic relationship. This may be particularly difficult for a same-sex couple

who has not yet declared their sexuality to friends, family or workplaces for

fear of the public reaction. Further, some same-sex couples have told stories of

decision-makers who are resistant to the possibility that a same-sex couple can

be a genuine couple.

Several people told the

Inquiry that a formal ‘piece of paper’ could assist same-sex couples

in proving the genuineness of their relationship and in asserting the rights

that flow from such a relationship.

The NSW Law

Reform Commission believes that the advantages of registration schemes include

greater certainty and recognition. They comment:

Registration has the benefit of certainty. That certainty

removes the need for legislative preconditions such as requiring cohabitation.

The parties to a relationship can be readily identified, and have demonstrated

that they know about, and agree to be bound by, the legislation and its

provisions. It would give people who do not wish or are legally unable to marry,

such as gay and lesbian couples,the opportunity to have their

relationship registered and formally recognised by the State. It also provides a

system of recognition for people who do not wish to live together, but want to

acknowledge their relationship of mutual

support.[92]

A

woman from PFLAG Brisbane told the Inquiry about how civil unions could help her

gay son assert his rights under law:

I want the government to relent on the issue of civil

unions. It would give my son and his partner instant recognition and give them

the rights that the rest of us take for

granted.[93]

Doug

Pollard told the Inquiry of the advantages that marriage might have brought him

in proving his relationship for visa purposes:

You are accepted as someone’s heterosexual partner

if you can provide ONE piece of paper – a marriage certificate. To prove

our interdependency took a blizzard of paper – bank statements, phone

bills, rent receipts, credit card statements, letters, airline tickets, hotel

and restaurant bills etc. etc. - and a major intrusion into our private

life.[94]

As

this example suggests, if a same-sex couple were entitled to marry, those who

did in fact marry could by-pass the ‘de facto relationship’ or

‘interdependency relationship’ definitions and qualify automatically

as a ‘spouse’.

4.5.3 Formal

relationship recognition is helpful but not necessary to access financial

entitlements

Almost all of the financial entitlements discussed

throughout this report are available to opposite-sex couples, whether or not

they are married. The goal of this Inquiry is to ensure that same-sex couples

also have access to all financial entitlements, whether or not they are married.

Even if there were formal relationship

recognition schemes for same-sex couples, only some same-sex couples will choose

to formalise their relationships. This is no different to opposite-sex couples,

only some of whom choose to formalise their

relationships.

So,

while marriage, civil unions or relationship registration might help some

same-sex couples prove a genuine relationship, formal recognition is not, and

should not be a necessary prerequisite.

Thus,

the following recommendations focus on ensuring that same-sex couples can access

the same financial entitlements available to opposite-sex couples –

irrespective of formal recognition schemes.

4.6 How

should federal law change to ensure same-sex couples can access financial and

work-related entitlements?

The primary source of discrimination against same-sex

couples is the way in which federal law describes who constitutes a legitimate

couple.

Same-sex couples are excluded from all

definitions describing a couple-like relationship, except where the

‘interdependency’ category has been introduced. While that category

has brought improvements, it still treats same-sex couples differently to

opposite-sex de facto couples.

Discrimination

will continue for as long as the definitions continue to limit their scope to

opposite-sex couples. Discrimination will disappear as soon as the definitions

include same-sex couples.

All of the states and

territories have enacted broad-based law reform to achieve this goal. They have

done this by inserting new definitions of ‘de facto’,

‘domestic’ or ‘significant’ relationship into the

relevant state and territory laws. Federal Parliament should also amend the

definitions in federal laws to remove discrimination against same-sex

couples.

4.6.1 Introduce

omnibus legislation replacing discriminatory definitions in federal law

The Inquiry recommends that the federal Parliament

enact legislation which ensures that all discriminatory definitions are amended

to include same-sex couples. Such legislation should be ‘omnibus’

legislation that simultaneously amends all discriminatory federal laws –

including those laws set out in Appendix 1 to this

report.

The following sets out two possible

ways that this omnibus legislation could amend the laws to remove

discrimination. However, the Inquiry prefers the first approach.

(a) Preferred

approach: retain current terminology and introduce the concept of a ‘de

facto relationship’

This first option for amendment is to:

  • retain the current terminology used in federal

    legislation

  • redefine the terminology in the legislation to include

    same-sex couples

  • insert new definitions of ‘de facto

    relationship’ and ‘de facto partner’ which include same-sex

    couples (as set out in section 4.6.2(b)

    below).

For example, the Income Tax

Assessment Act 1997 (Cth) currently defines a ‘spouse’ as

follows:

‘spouse’ of a person includes a person who, although not legally married to the person,

lives with the person on a genuine domestic basis as the person's

husband or wife.[95] (emphasis

added)

This definition has been interpreted to exclude

same-sex couples because of the reference to a ‘husband or wife’.

There is no need to change the term

‘spouse’, but it must be redefined to include a same-sex couple. A

new definition of ‘spouse’ could read:

‘spouse’ of a person includes a person who is in a de facto relationship.

But

‘de facto relationship’ must also be defined in the legislation to

include a same-sex relationship.

The main

advantage of this strategy is that minimal changes are required to the existing

legislation. For the most part, the only amendments necessary would be in the

‘interpretation’ or ‘definitions’ sections in the

relevant legislation.

For example, if this

approach is adopted, the substantive provisions of the tax legislation which

confer rights on a ‘spouse’ need not be amended, because

‘spouse’ will remain the term to describe married and unmarried

couples. But the term will now also incorporate same-sex couples (and

opposite-sex couples) in a ‘de facto

relationship’.

Appendix 1 to this report

sets out the relevant sections which would need to be amended if this approach

were taken.

(b) Alternative

approach: change current terminology describing married and unmarried

couples

This alternative approach makes a clearer distinction

between the way a married couple is described and an unmarried couple is

described, because it amends both the terminology and the substantive

provisions. This approach is in line with that taken in several states and

territories.

This approach involves:

  • narrowing the scope of marriage-related terms to apply

    only to people who are (or were) legally married (for example

    ‘spouse’ only includes a person who is married)

  • introducing the terms ‘de facto partner’ and

    ‘de facto relationship’ to apply to unmarried opposite-sex and

    same-sex couples

  • amending all sections conferring substantive entitlements

    to ensure that they include both the marriage-related terms and de facto-related

    terms.

There will need to be many more

amendments to the existing legislation if this approach is taken, because the

substantive provisions relying on current terminology must be amended to

recognise the new terminology.

For example,

some of the changes which may need to occur pursuant to this approach

include:

  • Legislation will need to add a new definition of

    ‘de facto relationship’.

  • Where there is currently a definition of

    ‘spouse’, that term should only describe a person who is legally

    married; a definition of ‘de facto partner’ should be inserted to

    cover a person who is unmarried but in a genuine relationship, irrespective of

    gender.

  • Wherever there is a reference to a ‘spouse’

    in the substantive provisions of legislation, there should also be a reference

    to a ‘de facto partner’.

  • Wherever there is a reference to a ‘de facto

    spouse’ that term should be replaced with the term ‘de facto

    partner’.

  • Wherever there is a definition of ‘member of a

    couple’ that definition should include a person in a ‘de facto

    relationship’.

  • Wherever there is a reference to a ‘marital

    relationship’ or ‘marriage-like relationship’, ‘de facto

    relationship’ should either replace that term or be added to that term.

  • Wherever there is a reference to a person who lives with

    another person ‘on a bona fide (or genuine) domestic basis,

    although not legally married to the employee’, that phrase can be replaced

    with the phrase ‘in a de facto

    relationship’.

These are broad

guidelines only. There needs to be special care in ensuring that the amendments

do not alter the nature of the entitlements described by these terms, other than

to put opposite-sex and same-sex de facto relationships on the same

footing.

4.6.2 Introduce

an inclusive definition of ‘de facto relationship’ into federal law

In developing the following definition of ‘de

facto relationship’ the Inquiry has considered definitions and criteria

used in state and territory laws; criteria used in federal law definitions of

‘interdependency’; and the criteria for a ‘marriage-like

relationship’ in social security law.

(a) Important

features of the model definition

The Inquiry has used the term ‘de facto’

because it is the most common of the terms used in state and territory law.

However, the Inquiry has no strong preference for the term ‘de facto

relationship’ above terms such as ‘domestic relationship’ or

‘significant relationship’.

The

Inquiry is concerned to ensure that a new definition has the following

features:

  • Inclusiveness. The focus of the definition is on

    the genuineness of the relationship between two people rather than their

    gender.

  • Flexibility. The definition considers a range of

    factors relevant to a relationship with no one determinative factor. Further,

    the definition starts with the assumption that the couple must live together,

    but allows for the possibility that they may be temporarily

    separated.

  • Consistency. The federal definition should be

    consistent with definitions in state and territory jurisdictions to reduce the

    uncertainty currently facing same-sex couples.

  • Evidentiary guidelines. The definition should

    indicate the type of evidence that can assist a couple in proving the

    genuineness of the relationship, including statutory declarations and other

    formal recognition schemes if available.

(b) A

model definition of ‘de facto relationship’ and ‘de facto

partner’

The following is the definition of ‘de facto

relationship’ which the Inquiry recommends be introduced into federal laws

conferring financial and work-related entitlements.

(1) ‘De facto relationship’ means the

relationship between two people living together as a couple on a genuine

domestic basis.

(2) In determining whether two people are in a de facto

relationship, all the circumstances of the relationship must be taken into

account, including any of the following:

  • (a) the length of their relationship
  • (b) how long and under what circumstances they have

    lived together

  • (c) whether there is a sexual relationship between

    them

  • (d) their degree of financial dependence or

    interdependence, and any arrangements for financial support, between or by them

  • (e) the ownership, use and acquisition of their

    property, including any property that they own individually

  • (f) their degree of mutual commitment to a shared life
  • (g) whether they mutually care for and support

    children

  • (h) the performance of household duties
  • (i) the reputation, and public aspects, of the

    relationship between them

  • (j) the existence of a statutory declaration signed by

    both persons stating that they regard themselves to be in a de facto

    relationship with the other person.

(3) No one factor, or any combination of factors, under

(2) is necessary to establish a de facto relationship.

(4) A de facto relationship may be between two people,

irrespective of gender.

(5) Two people may still be in a de facto relationship

if they are living apart from each other on a temporary

basis.

If the various states and

territories adopt a relationship registration scheme (like that which exists in

Tasmania), subsection (6) could be added to the definition of ‘de facto

relationship’ along the following lines:

(6) If a relationship is registered under a state or

territory law allowing for the registration of relationships, registration is

proof of the relationship from that date.

If the various states and territories

adopt a civil union scheme, subsection (7) could be added along the following

lines:

(7) If two people enter into a civil union under a

state or territory law, evidence of that civil union is proof of the

relationship from that date.

If

relationship registration or civil unions become relevant to the definition,

subsection (3) should change to read:

(3) No one factor, or any combination of factors, under

(2), (6) or (7) is necessary to establish a de facto

relationship.

The Inquiry further

recommends the following definition of ‘de facto

partner’:

‘de facto partner’ means one of two

people in a de facto relationship.

4.6.3 Summary

of recommendations

The Inquiry recommends that the federal Parliament

amend federal law to ensure equal access to financial entitlements and benefits

for all couples – be they married or unmarried, opposite-sex or

same-sex.

The federal Parliament should

introduce ‘omnibus’ legislation to simultaneously eliminate

discrimination against same-sex couples in all federal laws identified in

Appendix 1 to this report.

The Inquiry’s

preferred approach to amendments is that the omnibus legislation:

  • retain the current terminology used in federal

    legislation

  • redefine the current terminology to include same-sex

    couples

  • insert a new definition of ‘de facto

    relationship’ and ‘de facto partner’ following the model

    definition in section 4.6.2(b) above.


Endnotes

[1] Defence Force (Home Loans Assistance) Act 1990 (Cth), s 3. Examples of

legislation using minor semantic variations on this definition: Corporations

Act 2001 (Cth), s 9; Bankruptcy Act 1966 (Cth), s 5(1); Pooled

Development Funds Act 1992 (Cth), s

4(1).
[2] National Health Act 1953 (Cth), s

4.
[3] Migration Regulations 1994 (Cth), reg 1.15A(2). Note, however, that the

Migration Regulations include same-sex couples within the definition of an

‘interdependency

relationship’.
[4] Military Rehabilitation and Compensation Act 2004 (Cth), s

5.
[5] Social Security Act 1991 (Cth), s 4(2); A New Tax System (Family

Assistance) Act 1999 (Cth), s 3(1); Income Tax Assessment Act 1997 (Cth), s 61.490(1)(b); Veterans’ Entitlements Act 1986 (Cth), s

5E(2).
[6] Gregory Brown v Commissioner of Superannuation (1995) 21 AAR 378. See also Re: The Roll-over Relief

Claimant and Commissioner of Taxation [2006] AATA

728.
[7] See Gregory Brown v Commissioner of Superannuation (1995) 21 AAR 378 at

[33].
[8] Income Tax Assessment Act 1936 (Cth), s 6(1); Income Tax Assessment

Act 1997 (Cth), s 995.1(1); Fringe Benefits Tax Assessment Act 1986 (Cth), s 136(1). Minor semantic variations: Passenger Movement Charge

Collection Act 1978 (Cth), s 3; Superannuation Industry (Supervision) Act

1993 (Cth), s 10; Retirement Savings Accounts Act 1997 (Cth), s

20(2); Life Insurance Act 1995 (Cth), sch 1, s 8; Foreign Acquisition and

Takeovers Regulations 1989 (Cth), reg 2; Superannuation Act 1990 (Cth),

sch 1, r 1.1.1. Definition used as a subset of ‘relative’ in: Financial Sector (Shareholdings) Act 1998 (Cth), sch 1, s 2; Insurance

Acquisitions and Takeovers Act 1991 (Cth), s 4. Other context: Income Tax

Assessment Act 1936 (Cth), s

251R(2).
[9] Workplace Relations Act 1996 (Cth), ss 240, 263. Minor semantic

variations: Sex Discrimination Act 1984 (Cth), s 4(1); Military

Superannuation and Benefits Act 1991 (Cth), sch 1, r 7(4); Evidence Act

1995 (Cth), Dictionary, pt

1.
[10] Superannuation Act 1976 (Cth), s 8A(1); Defence Force Retirement and

Death Benefits Act 1973 (Cth), s 6A(1); Governor-General Act 1974 (Cth), s 2B(2); Judges’ Pensions Act 1968 (Cth), s 4AB(1); Parliamentary Contributory Superannuation Act 1948 (Cth), s

4B(1).
[11] Parliamentary Entitlements Act 1990 (Cth), s 3. Minor semantic

variations: Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth),

s 37(1); Aboriginal Councils and Associations Act 1976 (Cth), s 3; Commonwealth Electoral Act 1918 (Cth), s 4(1); Safety, Rehabilitation

and Compensation Act 1988 (Cth), s

4(1).
[12] Defence Force (Home Loans Assistance) Act 1990 (Cth), s 3; Corporations Act 2001 (Cth), s 9; Bankruptcy Act 1966 (Cth), s

5(1); Pooled Development Funds Act 1992 (Cth), s

4(1).
[13] Commonwealth of Australia v Human Rights and Equal Opportunity Commission and

Anor [1998] 138 FCA (27 February

1998).
[14] A number of federal acts discussed in this paper make specific provision for

exactly this situation (i.e. where there is both a de jure and a de facto

spouse): see, for example, Superannuation Act 1976 (Cth), s 110; Military Superannuation and Benefits Act 1991 (Cth), sch 1, r 47; Defence Force Retirement and Death Benefits Act 1973 (Cth), s 41; Parliamentary Contributory Superannuation Act 1948 (Cth), s

21AA.
[15] For a full discussion of the changes to state and territory laws needed to

recognise same-sex couples, see J Millbank, ‘Recognition of Lesbian and

Gay Families in Australian Law – Part One: Couples’, Federal Law

Review, vol 34, no 1, 2006,

pp1-35.
[16] Aged Care Act 1997 (Cth), s

44.11(b).
[17] See Interpretation Act 1984 (WA), s 13A(1); Commonwealth Powers (De

facto Relationships) Act 2003 (NSW), s 3(1); Commonwealth Powers (De

facto Relationships) Act 2003 (Qld), s 3(1); De facto Relationships

(Northern Territory Request) Act 2003 (NT), s

3A(1).
[18] Social Security Act 1991 (Cth), s

4(2)(b)(iii).
[19] Social Security Act 1991 (Cth), s

4(3)-(3A).
[20] Social Security Act 1991 (Cth), s

4(2)(b)(i).
[21] Disability Discrimination Act 1992 (Cth); Financial Transactions

Reports Act 1988 (Cth); Australian Citizenship Act 1948 (Cth); Foreign States Immunities Act 1985 (Cth); International Organisations

(Privileges and Immunities) Act 1963 (Cth); Proceeds of Crime Act

2002 (Cth); Higher Education Funding Act 1988 (Cth); Higher

Education Support Act 2003 (Cth).
[22] Age Discrimination Act 2004 (Cth); Health Insurance Act 1973 (Cth); Education Services for Overseas Students Act 2000 (Cth); Broadcasting Services Act 1992 (Cth); Australian Meat and Live-Stock

Industry Act 1997 (Cth); Financial Transactions Reports Act 1988 (Cth); Civil Aviation (Carriers Liability) Act 1959 (Cth).
[23] See Minister for Revenue and the Assistant Treasurer, Fairer Treatment for

Interdependent Relationships, Media Release, 27 May 2004, concerning

superannuation

legislation.
[24] Migration Act 1958 (Cth), s 238; Migration Regulations 1994 (Cth), regs

1.09A(2), 1.09A(5)-(6); Australian Government Department of Defence, Defence

Instructions (General) Personnel 53-1 (1 December 2005), issued pursuant to

s 9A of the Defence Act 1903 (Cth), amended the Defence Instruction

(General) Manual and the ADF Pay and Conditions Manual; Defence

Act 1903 (Cth). In order to be recognised, a person must first

complete a statutory declaration and attach documentary evidence from a

prescribed list: see Item 9 and Annex A and B of the

Instructions.
[25] Superannuation Industry (Supervision) Act 1993 (Cth), s 10A(1). The

Superannuation Industry (Supervision) Regulations 1994 (Cth), reg 1.04AAAA(1),

sets out the criteria for satisfying this definition which, although onerous, do

not specify the sex of the two people involved in the

relationship.
[26] See ACON, Sydney Hearing, 26 July 2006; Brian Greig, Perth Hearing, 9 August

2006; Law Institute of Victoria, Melbourne Hearing, 26 September 2006; Good

Process, Submission 284; Miranda Stewart, Submission 266; Tasmanian Gay and

Lesbian Rights Group, Submission 233; Victorian Gay and Lesbian Rights Lobby,

Submission 256; Women’s Health Victoria, Submission

318.
[27] James Magel, Submission

245.
[28] Miranda Stewart, Submission

266.
[29] See for example, Roy v Sturgeon (1986) 11 NSWLR 454; Weston v Public

Trustee (1986) 4 NSWLR 407. See also Australian De Facto Relationships Cases

(looseleaf) (2005)

9-695.
[30] Property Relationships Act 1984 (NSW), s 4(1). See also

Anti-Discrimination Board of NSW, Submission

317.
[31] Property Relationships Act 1984 (NSW), s

4(2).
[32] See for example Anatomy Act 1977 (NSW), s 4(2)(d); Coroners Act 1980 (NSW), s 4(1); Guardianship Act 1987 (NSW), s 3(1). See also J

Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

p11.
[33] The Superannuation Legislation Amendment (Same Sex Partners) Act 2000 (NSW) amended the Parliamentary Contributory Superannuation Act 1971 (NSW); Police Association Employees (Superannuation) Act 1969 (NSW); Police Regulation (Superannuation) Act 1906 (NSW); State Authorities

Non-contributory Superannuation Act 1987 (NSW); State Authorities

Superannuation Act 1987 (NSW); Superannuation Act 1916 (NSW). See J

Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

p13.
[34] Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW). See J

Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006, p13. See also Anti-Discrimination Board of NSW, Submission

317.
[35] NSW Law Reform Commission, Discussion Paper 44 (2002) - Review of the

Property (Relationships) Act 1984 (NSW),

http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp44chp3#H8, viewed 1 March 2007;

Anti-Discrimination Board of NSW, Submission

317.
[36] J Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006, p15. See also

Attorney-General of Victoria, Submission 343; Equal Opportunity Commission of

Victoria, Submission 327; Law Institute of Victoria, Submission 331; Victorian

Gay and Lesbian Rights Lobby, Submission

256.
[37] Property Law Act 1958 (Vic), s

275(1).
[38] Property Law Act 1958 (Vic), s

275(1).
[39] Property Law Act 1958 (Vic), s

275(2).
[40] See Statute Law Amendment (Relationships) Act 2001 (Vic), schs

4-6.
[41] Equal Opportunity Commission of Victoria, Submission

327.
[42] A large number of amendments also removed references to ‘husband’

and ‘wife’ and replaced them with ‘spouse’. See, for

example, Discrimination Law Amendment Act 2002 (Qld), ss 53-57, 59. J

Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006, p19. See also

Action Reform Change Queensland and Queensland AIDS Council, Submission

270.
[43] Acts Interpretation Act 1954 (Qld), s

32DA(1).
[44] Acts Interpretation Act 1954 (Qld), s

32DA(2).
[45] Acts Interpretation Act 1954 (Qld), s

32DA(6).
[46] Anti-Discrimination Commission Queensland, Submission

264.
[47] See for example Acts Amendment (Equality of Status) Act 2003 (WA), ss 29,

59.
[48] Interpretation Act 1984 (WA), s

13A(1).
[49] Interpretation Act 1984 (WA), s

13A(3).
[50] Interpretation Act 1984 (WA), s

13A(2).
[51] See, for example, Acts Amendment (Lesbian and Gay Reform) Act 2002 (WA),

ss 69(2), 102; Acts Amendment (Equality of Status) Act 2003 (WA), ss 40,

48,

63.
[52] See Rod Swift, Perth Hearing, 9 August 2006; Speaker, Perth Forum, 10 August

2006; Equal Opportunity Commission of Western Australia, Submission 342;

Samantha and Kelly Pilgrim-Byrne, Submission 13; The Hon Penny Sharpe MLC,

Submission 341; Giz Watson MLC, Submission

262.
[53] J Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

p25.
[54] De Facto Relationships Act 1991 (NT), s

3A(1).
[55] De Facto Relationships Act 1991 (NT), s

3A(3).
[56] De Facto Relationships Act 1991 (NT), s

3A(2).
[57] J Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

p26.
[58] Relationships Act 2003 (Tas), s

4(1).
[59] Relationships Act 2003 (Tas), pt

2.
[60] Relationships Act 2003 (Tas), s

4(2).
[61] Relationships Act 2003 (Tas), s

4(1).
[62] Relationships Act 2003 (Tas), s 4(3).
[63] Domestic Relationships Act 1994 (ACT), s 3(1), introduced the concept of

a ‘domestic relationship’ in the context of property rights. The

definition was intended to include same-sex couples. See J Millbank,

‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

pp29-30.
[64] See for example Legislation (Gay, Lesbian and Transgender) Amendment Act

2003 (ACT), sch 1, amendments 1.23-1.25, 1.32, 1.28, 1.62, 1.55; Sexuality Discrimination Legislation Amendment Act 2004 (ACT), sch 1,

amendments 1.14, 1.55,

1.63.
[65] Legislation Act 2001 (ACT), s

169(2).
[66] Legislation Act 2001 (ACT), s

169(1).
[67] Legislation Act 2001 (ACT), s

169(2).
[68] Statutes Amendment (Domestic Partners) Act 2006 (SA), s 5 will insert

this definition into the Family Relationships Act 1975 (SA), s 11A. This

Act had not commenced as at 5 April

2007.
[69] Statutes Amendment (Domestic Partners) Act 2006 (SA), s 5 will insert

this provision into the Family Relationships Act 1975 (SA), s 11B. This

Act had not commenced as at 5 April

2007.
[70] Statutes Amendment (Domestic Partners) Act 2006 (SA), s 5 will insert

this provision into the Family Relationships Act 1975 (SA), s 11B(5).

This Act had not commenced as at 5 April

2007.
[71] Statutes Amendment (Domestic Partners) Act 2006 (SA), s 5 will insert

this provision into the Family Relationships Act 1975 (SA), s 11B(3).

This Act had not commenced as at 5 April

2007.
[72] See Action Reform Change Queensland and Queensland AIDS Council, Submission 270;

Associate Professor Jenni Millbank, Submission 27; Australian Coalition for

Equality, Submission 228; Australian Marriage Equality, Submissions 238 and

238a; Gay and Lesbian Equality (WA), Submission 251; Gay and Lesbian Rights

Lobby (NSW), Submission 333; Lesbian and Gay Solidarity (Melbourne), Submission

89a; Gilbert and Tobin Centre of Public Law, Submission 179; Good Process,

Submission 184; Let’s Get Equal Campaign (SA), Submission 260; Tasmanian

Gay and Lesbian Rights Group, Submission 233a; ALSO Foundation, Submissions 307

and 307f; Victorian Gay and Lesbian Rights Lobby, Submissions 233 and

233a.
[73] For more discussion on the importance of such schemes to gay and lesbian

communities and the advantages and disadvantages of each scheme, see Gay and

Lesbian Rights Lobby (NSW), All Love Is Equal ... Isn’t It? The

recognition of same-sex relationships under federal law, Consultation

Report, February 2007; R McNair and N Thomacos, Not Yet Equal, Report of

the Victorian Gay and Lesbian Rights Lobby, Same Sex Relationships Survey 2005,

July 2005; Gay and Lesbian Legal Rights Service, The Bride Wore Pink, Legal

Recognition of our Relationships, Discussion Paper, 2nd ed,

February

1994.
[74] See Gay and Lesbian Rights Lobby (NSW), All Love Is Equal ... Isn’t

It? The recognition of same-sex relationships under federal law,

Consultation Report, February 2007; R McNair and N Thomacos, Not Yet

Equal, Report of the Victorian Gay and Lesbian Rights Lobby, Same Sex

Relationships Survey 2005, July 2005; Gay and Lesbian Legal Rights Service, The Bride Wore Pink, Legal Recognition of our Relationships, Discussion

Paper, 2nd ed, February 1994; K Anthony and T Drabsch, Legal

Recognition of Same-Sex Relationships, NSW Parliamentary Library Research

Service, Briefing Paper No. 9/06, June

2006.
[75] See Speaker, Adelaide Forum, 28 August 2006; Speaker, Melbourne Forum, 26

September 2006; Speaker, Brisbane Forum, 10 October 2006; Let’s Get Equal

Campaign (SA), Adelaide Hearing, 28 August 2006; David Bocabella, Submission 4;

Ralph Barrand and Douglas Collins, Submission

258.
[76] See for example, Gay and Lesbian Rights Lobby (NSW), All Love Is Equal ...

Isn’t It? The recognition of same-sex relationships under federal

law, Consultation Report, February 2007; R McNair and N Thomacos, Not Yet

Equal, Report of the Victorian Gay and Lesbian Rights Lobby, Same Sex

Relationships Survey 2005, July 2005; Gay and Lesbian Legal Rights Service, The Bride Wore Pink, Legal Recognition of our Relationships, Discussion

Paper, 2nd Ed, February 1994; K Anthony and T Drabsch, Legal

Recognition of Same-Sex Relationships, NSW Parliamentary Library Research

Service, Briefing Paper No. 9/06, June

2006.
[77] Relationships Act 2003 (Tas), s

11(1).
[78] In September 2005, the City of Sydney adopted a Relationships Declaration

Program. While making a relationship declaration does not confer legal rights in

the way marriage does, it may be used to demonstrate the existence of a de facto

relationship within the meaning of the NSW Property (Relationships) Act 1984 (NSW) and other legislation: City of Sydney, Relationship Declaration

Program Information Pack, 2005, p2. Melbourne City Council launched a

Relationship Declaration Register on 2 April 2007: City of Melbourne, Relationship Declaration Register,

http://www.melbourne.vic.gov.au/info.cfm?top=208&pg=3483, viewed 20 April

2007.
[79] As at 1 January 2006, 57 couples had registered a ‘significant

relationship’ in Tasmania. Of these relationships, 45 were same-sex

couples (24 gay male and 21 lesbian couples) and 12 were opposite-sex couples: J

Millbank, ‘Lesbian and Gay Families in Australian Law – Part One:

Couples’, Federal Law Review, vol 34, no 1, 2006,

p27. There is evidence of a low take up of registration regimes internationally,

‘with a much lower take up by women, and a high urban

concentration’: K Anthony and T Drabsch, Legal Recognition of Same-Sex

Relationships, NSW Parliamentary Library Research Service, Briefing Paper

No. 9/06, June 2006,

pp4-5.
[80] Australian Capital Territory (Self-Government) Act 1988 (Cth), s 35(2).

See Commonwealth of Australia, Special Gazette No S93, 14 June 2006.
[81] The Attorney-General, Transcript of Interview, Doorstop Interview, House of

Representatives Alcove, Parliament House, Canberra, 13 June 2006,

http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/Page/Interview_Transcripts_

2006_

Transcripts_13_June_2006_-_Transcript_-_

Doorstop_Interview_-

_

House_of_Representatives_Alcove_-_Parliament_House_-_Canberra,

viewed 30 March

2007.
[82] Chief Minister, Australian Capital Territory, Corbell Introduces Civil

Partnerships Bill, Media Release, 12 December 2006,

http://www.chiefminister.act.gov.au/media.asp?

media=2031&section=52&title=Media%20Release&id=52,

viewed 30 March

2007.
[83]The

Attorney-General, ACT Civil Partnerships Bill does not

remove concerns, Media Release, 6 February 2007. See also The

Attorney-General, Transcript, ABC Local Radio Canberra, 7 February 2007, http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/

Page/Interview_

Transcripts_2007_Transcripts_7_February_2007_-_Transcript_-_

ABC_Local_Radio_Canberra,

viewed 30 March

2007.
[84] Countries with civil unions include Denmark, New Zealand and the UK: K Anthony

and T Drabsch, Legal Recognition of Same-Sex Relationships, NSW

Parliamentary Library Research Service, Briefing Paper No. 9/06, June 2006,

pp45-48. See also Public Interest Advocacy Centre (PIAC), Submission

328.
[85] Marriage Act 1961 (Cth), s 5(1), amended by the Marriage Amendment Act

2004 (Cth), sch 1, cl

1.
[86] Countries with same-sex marriage include Canada, Spain, the Netherlands, and

Belgium: K Anthony and T Drabsch, Legal Recognition of Same-Sex

Relationships, NSW Parliamentary Library Research Service, Briefing Paper

No. 9/06, 2006, p41. See also Public Interest Advocacy Centre (PIAC), Submission

328.
[87] Marriage Act 1961 (Cth), s 88EA, amended by the Marriage Amendment Act

2004 (Cth), sch 1, cl

3.
[88] See Anthony Brien, Submission 64a; Australian Lawyers for Human Rights,

Submission 286; Australian Marriage Equality, Submissions 238 and 238a; Castan

Centre for Human Rights Law, Monash University, Submission126; Frank Gomez,

Submission 216; Walter Lee, Submission 250a; Russell Pollard, Submission 300;

Tasmanian Gay and Lesbian Rights Group, Submission 233a.
[89] Marriage and Family Office, Catholic Archdiocese of Sydney, Submission

364.
[90] Festival of Light Australia, Submission

31.
[91] Festival of Light Australia, Submission 31, Marriage and Family Office, Catholic

Archdiocese of Sydney, Submission 364, Lutheran Church of Australia, Submission

494; Australian Family Association, South Australian Branch, Submission

399.
[92] NSW Law Reform Commission, Review of the Property (Relationships) Act 1984 (NSW), Discussion Paper 44, 2002, para 2.73,

http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp44toc, viewed 30 March 2007. See

also K Anthony and T Drabsch, Legal Recognition of Same-Sex

Relationships, NSW Parliamentary Library Research Service, Briefing Paper