Date: Sun, 4 Oct 1998 23:57:15 -0700 (PDT) From: Ron Buckmire Subject: qrd/world/pacific/australia Date: Fri, 2 Oct 1998 08:48:53 -0400 (EDT) From: Kenneth Sherrill Subject: *QL-ED*: Same Sex Relationship Recognition, Australia - Bill in NSW Upper House (fwd) ---------- Forwarded message ---------- Date: Thu, 1 Oct 1998 22:15:26 -0700 (PDT) From: Jenni Millbank To: queerlaw@abacus.oxy.edu Subject: *QL-ED*: Same Sex Relationship Recognition, Australia - Bill in NSW Upper House Australia - Bill in NSW Upper House In June of this year, a minor party, the Australian Democrats, introduced a Bill into the NSW Upper House to recognise same sex relationships: the De Facto Relationships Amendment Bill 1998 . The Bill was drafted by the NSW Gay and Lesbian Rights Lobby, and is directed to ensure equal recognition of same sex relationships on par with heteroseuxal cohabiting relationships across 53 pieces of law, as well as recognition in some circumstances of non sexual and non cohabiting relationships. At present the NSW Labor Government, headed by Premier Bob Carr have not even allowed the Bill on for debate. If you wish to support the debate and passage of the Bill, please fax Bob Carr on 61-2-9383 8137 to urge him to give equal rights to lesbians and gay men. If you are interested in the contents of the Bill, a summary follows. You can also visit information about the Bill and the G&L Rights Lobby on our website http://www.rainbow.net.au/~glrl/ --------------------------- OVERVIEW OF DE FACTO RELATIONSHIPS AMENDMENT BILL 1998 The Bill introduces two key changes across certain NSW laws. Firstly, same sex cohabiting couples are included in the definition of "de facto relationships" in various acts. The regime by which de factos have been recognised in NSW legislation for many years is unchanged except to include same sex relationships. Secondly, "domestic relationships" are included in a few limited areas, to provide access to legal redress for people who have a close relationship of interdependence, which may not be sexual. I DE FACTO RELATIONSHIPS Same sex couples are included in 53 NSW Acts on the same footing as heterosexual de facto couples. De facto relationship is redefined as "the relationship between two persons who live together as a couple on a bona fide domestic basis". The explanatory notes affirm that these amendments are intended to cover "persons of the same sex who are in a stable, committed and cohabiting relationship". Currently the definition in the De Facto Relationships Act 1984 is as follows (section 3): de facto partner means: (a) in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him, and (b) in relation to a woman, a man who is living or has lived with the woman as her husband on a bona fide domestic basis although not married to her. de facto relationship means the relationship between de facto partners, being the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other. This definition is carried through in many other pieces of legislation. Major changes: Property division on relationship breakdown 1. De Facto Relationships Act 1984, District Court Act 1973: to provide access to a property division regime on relationship breakdown. 2. De Facto Relationships Act 1984: to include a person who has taken parental responsibility for their partners child as someone who may claim child maintenance for a child under the age of 16 years or have a claim made against them. 3. Duties Act 1997: extends duty concessions to partners sharing property who transfer property at the end of a relationship in accordance with an order of the court or a separation agreement (section 68). Provide for or protect a partner on death or injury 1. Wills, Probate and Administration Act 1898: provide automatic inheritance on the death of a partner who had no will: 2. Family Provision Act 1982: provides eligibility to claim part of a partner's estate 3. Electricity (Pacific Power) Act 1950, Public Sector Management Act 1988, Sydney Cove Redevelopment Authority Act 1968, Teaching Services Act 1980, Transport Administration Act 1988, Waste Recycling and Processing Service Act 1970: extend right to inherit unpaid balance of a deceased spouse's unpaid long service leave. 4. Compensation to Relatives Act 1897, Law Reform (Miscellaneous Provisions) Act 1944, Motor Vehicle Accidents Act 1988: to provide a right to sue in negligence for the wrongful death of a partner, and the ability to claim for nervous shock and psychological injury: 5. Police Service Act 1990, Sporting Injuries Insurance Act 1978, Workers Compensation Act 1987, Workers' Compensation (Dust Diseases) Act 1942: extend provision of death or injury benefits paid to employees or insured's partner. 6. Insurance Act 1902: exempt insurance proceeds left to a partner from the estate on death (ie do not form part of the estate). 7. Liquor Act 1982: allow a partner to carry on business for one month after death of licensee (s63) (or apply for license when s/he is disqualified (s69)) as can other members of the family and others. 8. Trustee Companies Act 1964: give a partner a right to apply to court for account. Note this is only a right to apply (court will not render an account if no sufficient case or sufficient account already). Decisionmaking in incapacity and after death 1. Guardianship Act 1987: includes a partner as party to guardianship proceedings in instances of incapacity, and eligible for a guardianship order. 2. Anatomy Act 1977, Human Tissue Act 1983, Coroners Act 1980: include a partner as next of kin who may lodge objections to anatomical examination or donation of the bodies of deceased person, request an inquest and make representations at an inquest. 3. Mental Heath Act 1990: include a partner as someone who must be contacted or consulted regarding a patient. 4. Protected Estates Act 1983 deals with management of the affairs and property of persons incapable of managing their own affairs. Section 28 deals with the ways in which the Protective Commissioner may apply monies of the protected person (eg towards his/her maintenance, clothing, payment of debts) and includes provision to make payments from the estate of a protected person to a spouse (or child or other person who is dependent). 5. Adoption Information Act 1990: to provide a partner with access to adoption records after the death of an adopted person or birth parent [does not give a 'right' to information as such but states that Director-General may give relatives (broadly defined and including de factos) information]. 6. Local Courts (Civil Claims) Act 1970: extend to a partner the right to appear before a Local Court ie a person may appear in person, by solicitor or barrister or by a spouse or employee (the later 2 only if authorised in writing). [Not confined to circumstances of incapacity]. Outlaw Discrimination 1. Anti-Discrimination Act 1977: include discrimination against a same sex couple in certain circumstances as marital status discrimination. 2. Health Insurance Levies Act 1982: give partners with children access to the family rate of contribution ie single contributes the prescribed rate and family contributes double the prescribed rate. Public Protection 1. Albury-Wodonga Development Act 1974, Co-operatives Act 1992, Financial Institutions Commission Act 1992, Friendly Societies (NSW) Act 1997, Growth Centres (Development Corporations) Act 1974, Local Government Act 1993, Sydney Cricket and Sports Ground Act 1978: to require disclosure of a partner's interests by a committee or board member: 2. Legal Profession Act 1987: to include partners in the definition of "associate" of a solicitor for some purposes. This mainly deals with failure to account. 3. Bail Act 1978: to include a partner as someone whose interests should be considered protecting when a person in custody applies for bail. 4. Landlord and Tenant Act 1899, Retirement Villages Act 1989; to extend a lease to a remaining partner if a tenant quits residential premises and to a partner who is resident in a retirement home eg section 15 Retirement Villages Act gives a resident (which includes a de facto partner of the person with a residential contract) the right of occupation) except in specified circumstances. 5. Rural Lands Protection Act 1989: to include partner as someone who is prohibited from buying property sold to account for a debt. 6. Pre Trial Diversion of Offenders Act 1985: include a partner in diversionary scheme for sexual offences against children. 7. Credit Act 1984: to extend the scope of credit providers to accept guarantees; change the circumstances in which a credit provider may charge more than the statutory maximum interest rate [under section 170 this can be done if (among other things) the credit provider has not provided credit to the debtor; debtor's spouse or any member of the debtor's family in the last 2 years]. 8. Criminal Assets Recovery Act 1990: to extend the scope of the Supreme Court to question witnesses regarding criminal assets. Miscellaneous 1. Dentists Act 1989: to allow dentists to practice as a corporation if all the shareholders are dentists or family members of dentists (family member defined to include de facto). 2. Duties Act 1997: extend duty concessions to partners sharing property who extend title. Thus transfer of property which is the couple's residence from one partner to both is exempt from duty (section 67). 3. Door to Door Sales Act 1967: to extend the right of a partner to cancel certain purchase agreements. 4. Defamation Act 1974, Evidence Act 1995: to include the privilege to ask court that one be allowed to refuse to answer questions incriminating a partner. 5. Industrial Relations Act 1996: extend unpaid leave to non-biological parent of a child born to or adopted by a lesbian or gay man. 6. Legal Aid Commission Act 1979: to include partners in the definition of a person "associated with the applicant". If either the person or such an associate does not satisfy the means test, aid is refused. 7. Trustee Act 1925. Section 45 relates to protective trusts, which may currently be made for the benefit of a wife/husband, children or remote issue of the principal beneficiary. II DOMESTIC RELATIONSHIPS Domestic Relationships are included in 7 Acts. They are defined as "a relationship between two persons, whether or not they live together or share a sexual relationship, where there is emotional and financial interdependence, and which may or may not be a de facto relationship". It does not include any caring relationship done for fee or reward. If there is any doubt over the existence of a domestic relationship the court may make a declaration as its existence having regard to the factors listed under s 13A. These factors are exactly the same (although in reverse order) as the factors currently listed in the federal Migration Regulations to permit decision makers to determine whether there is a relationship of interdependence for migration purposes. It is important to note that this is a tight definition and that there must be emotional and financial interdependence. Similar laws are operating in the ACT. Where there is a possible conflict of interest, such as where a person dies without a will, cohabiting couples and close relatives are given priority over domestic partners. The effect of these changes is to: 1. De Facto Relationship Act 1984, District Court Act 1973: include a domestic partner as someone who may make a claim to property, based on contribution, under statutory property regime ie this provides assistance to disentangle finances which are entangled on relationship breakdown. It will also include a person who has taken parental responsibility for another's child as someone who may claim child maintenance for a child under the age of 16 years or have a claim made against them. 2. Adoption Information Act 1990: to provide a domestic partner with access to adoption records after the death of an adopted person or birth parent. 3. Bail Act 1978: to include a domestic partner as someone whose interests should be considered protecting when a person in custody applies for bail. 4. Family Provision Act 1982: to provide eligibility to claim part of a domestic partner's estate. 5. Wills, Probate and Administration Act 1898: to provide automatic inheritance on the death of a domestic partner who had no will but only where s/he left no spouse, no children and no parents. 6. Workers Compensation Act 1987: extend eligibility for provision of death or injury benefits paid to employee's domestic partner. Jenni Millbank Kathy Sant 24 September 1998 =========================================================================== = To post to the list, email QUEERLAW@abacus.oxy.edu = =========================================================================== ********** To unsubscribe, send mail to majordomo@queernet.org; put a line saying unsubscribe kenslist in the body. 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