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Wednesday, 12 November 2008
Page: 6777


Senator WONG (Minister for Climate Change and Water) (5:41 PM) —by leave—I move government amendments (4) and (1) on sheet QH400:

(1)    Clause 2, page 2 (table item 3), omit the table item, substitute:

3. Schedule 2, Parts 1 and 2

At the same time as the provision(s) covered by table item 2.

3A. Schedule 2, Part 3

The day on which this Act receives the Royal Assent.

3B. Schedule 3

At the same time as the provision(s) covered by table item 2.

(4)    Schedule 2, page 12 (line 2) to page 17 (line 8), omit the Schedule, substitute:

   Schedule 2—Attorney-General’s amendments

   Part 1—Amendment of the Acts Interpretation Act 1901

   Acts Interpretation Act 1901

1  After section 22

Insert:

   22A  References to de facto partners

                  For the purposes of a provision of an Act that is a provision in which de facto partner has the meaning given by this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

              (a)    the person is in a registered relationship with the other person under section 22B; or

              (b)    the person is in a de facto relationship with the other person under section 22C.

   22B  Registered relationships

                  For the purposes of paragraph 22A(a), a person is in a registered relationship with another person if the relationship between the persons is registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

   22C  De facto relationships

         (1)    For the purposes of paragraph 22A(b), a person is in a de facto relationship with another person if the persons:

              (a)    are not legally married to each other; and

              (b)    are not related by family (see subsection (6)); and

              (c)    have a relationship as a couple living together on a genuine domestic basis.

         (2)    In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances:

              (a)    the duration of the relationship;

              (b)    the nature and extent of their common residence;

              (c)    whether a sexual relationship exists;

              (d)    the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

              (e)    the ownership, use and acquisition of their property;

               (f)    the degree of mutual commitment to a shared life;

              (g)    the care and support of children;

              (h)    the reputation and public aspects of the relationship.

         (3)    No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c).

         (4)    For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of:

              (a)    a temporary absence from each other; or

              (b)    illness or infirmity of either or both of them.

         (5)    For the purposes of subsection (1), a de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section 22B) with someone else or is in another de facto relationship.

         (6)    For the purposes of paragraph (1)(b), 2 persons are related by family if:

              (a)    one is the child (including an adopted child) of the other; or

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

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

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

         (7)    For the purposes of subsection (6), adopted means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.

   Part 2—Amendment of other Acts

   Federal Magistrates Act 1999

2  Section 5

Insert:

marital or couple relationship has the meaning given by subclause 9E(5) of Schedule 1.

3  Section 5 (definition of marital relationship)

Repeal the definition.

4  Section 5

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

5  Subclauses 9E(2), (3) and (4) of Schedule 1

After “marital” (wherever occurring), insert “or couple”.

6  Subclause 9E(5) of Schedule 1

After “marital”, insert “or couple”.

Note:   The heading to subclause 9E(5) of Schedule 1 is replaced by the heading “Meaning of marital or couple relationship”.

7  Subclause 9E(5) of Schedule 1

After “husband or wife” (wherever occurring), insert “or partner”.

8  Subclause 9E(6) of Schedule 1

After “marital”, insert “or couple”.

9  After paragraph 9E(7)(b) of Schedule 1

Insert:

            (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

10  At the end of paragraph 9E(7)(c) of Schedule 1

Add:

              or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

11  After subparagraph 9F(1)(b)(i) of Schedule 1

Insert:

                  (ia)    the person is a child of the Magistrate within the meaning of the Family Law Act 1975;

12  Application of amendments of the Federal Magistrates Act 1999

The amendments of the Federal Magistrates Act 1999 made by this Schedule apply in relation to any payment payable under clause 9D of Schedule 1 to that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person:

              (a)    held office as a Federal Magistrate; or

              (b)    was a retired disabled Federal Magistrate.

   Judges’ Pensions Act 1968

13  Subsection 4(1)

Insert:

child of a marital or couple relationship, in relation to a marital or couple relationship, means:

              (a)    a child born of the marital or couple relationship; or

              (b)    a child adopted by the people in the marital or couple relationship during the period of the relationship; or

              (c)    someone who is, within the meaning of the Family Law Act 1975, a child of both of the people in the marital or couple relationship.

14  Subsection 4(1) (definition of child of a marital relationship)

Repeal the definition.

15  Subsection 4(1)

Insert:

marital or couple relationship has the meaning given by section 4AB.

16  Subsection 4(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

17  Subsection 4(1)

Insert:

spouse has a meaning affected by section 4AC.

18  After paragraph 4AA(a)

Insert:

            (aa)    the child is a child of the deceased Judge within the meaning of the Family Law Act 1975; or

19  Subsection 4AB(1)

After “marital”, insert “or couple”.

Note:   The heading to section 4AB is replaced by the heading “Marital or couple relationship”.

20  Subsections 4AB(1) and (2)

After “husband or wife” (wherever occurring), insert “or partner”.

21  Subsection 4AB(3)

After “marital”, insert “or couple”.

22  After paragraph 4AB(4)(b)

Insert:

            (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

23  At the end of paragraph 4AB(4)(c)

Add:

              or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

24  Subsections 4AC(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

25  Subsections 10(2), 11(3) and 12(3)

After “marital” (wherever occurring), insert “or couple”.

26  Application of amendments of the Judges’ Pensions Act 1968

(1)    The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was a Judge or a retired Judge.

(2)    The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under the Building and Construction Industry Improvement Act 2005 in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was or had been the ABC Commissioner.

   Law Officers Act 1964

27  Subsection 16(1)

Omit “other than subsection 6(3) (including the provisions relating to widows and children)”, substitute “other than subsection 4(2) (including the provisions relating to spouses and children)”.

28  Application of amendments of the Law Officers Act 1964

The amendments of the Law Officers Act 1964 made by this Schedule apply in relation to any pension payable under section 16 of that Act because of the application of the Judges’ Pensions Act 1968 in respect of a person who:

              (a)    was appointed as Solicitor-General before 1 January 1998; and

              (b)    dies on or after the commencement of this Schedule.

   Part 3—Regulations

29  Regulations may deal with transitional, saving or application matters

The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments and repeals made by this Schedule or any other Schedule to this Act.

Government amendment (4) omits previous schedule 2 to the bill and replaces it with a new schedule 2. Amendment (4) effects a number of amendments to the content of schedule 2. These include the following specifically. Item 1 of schedule 2 will now insert the definition of ‘de facto partner’ into the Acts Interpretation Act. Items 2, 5, 6, 8, 13, 15, 19, 21, 24 and 25 of schedule 2 will refer to a marital or couple relationship rather than a couple relationship. Items 7 and 20 will adopt the term ‘husband or wife or partner’. Items 9 and 22 will refer to regulations made under the Acts Interpretation Act rather than the Judges’ Pensions Act. Items 10, 11 and 13, 18 and 23 will refer to a child within the meaning of the Family Law Act rather than the ‘product of a relationship’ definition of a child. Item 29 will insert a power for the Governor-General to make regulations of a transitional nature that relate to amendments made by schedule 2 or any other schedule to the act. Further, items 1, 5, 19, 20 and 29 of schedule 2 to the bill, as introduced, are no longer required as a consequence of the new approach to the definition of a child and do not have equivalents in the amended schedule 1.