Inquiry Into Legal Recognition of Significant Personal Relationships
DCI-Australia’s
Submission to the House of Assembly Community Development Committee
Parliament of Tasmania
Hobart TASMANIA
February 2000
1. The Australian Branch of Defence for Children International (DCI-Australia) is the local link in a worldwide chain of non-government
organisations dedicated to the advancement of children’s rights. The Convention on the Rights of the Child focuses on people under 18 years of age. It sets out the principles which guide
DCI's actions and campaigns: children's rights to protection, provision, promotion and participation.
2. DCI-Australia is a nation-wide organisation independent of government. We are an incorporated association that relies on subscriptions and
donations. Apart from some specifically funded projects, DCI-Australia's activities are undertaken by volunteers from within its ranks. We have no core funding and no paid staff.
3. Our National Committee is comprised of members with longstanding practice and research expertise in the fields of developmental psychology,
early childhood development, social policy formulation, legal advocacy, criminology, and social work. We also have the benefit of a wide-ranging expert Advisory Panel and our National Parton,
broadcaster and columnist, Mr Phillip Adams.
4. We welcome the opportunity to make a submission to the Committee’s Inquiry Into Legal Recognition of Significant Personal
Relationships and request that this correspondence is treated as a submission to the Inquiry.
5. We congratulate the Parliament of Tasmania for considering this issue which encompasses the recognition of gay and lesbian
relationships. It is the logical next step in Tasmania’s legal history following the passage of the Defacto Relationships Act 1999 (Tas.). As pointed out by Millbank:
“In the past 10 years gay and lesbian equality claims in Western liberal democratic states have come to rest on family. In the
most general way, lesbian and gay legal initiatives seem to have shifted from the right to be privately sexual, that is the right to have same-sex relationships at all (mostly, but not entirely a
male issue), to the right to be individual civic subjects, protected from discrimination in the work place and in the provision of services, toward the right to have relationships given status by
the law.” (Jenni Millbank, "Which, then, would be the 'husband' and which the 'wife'?": Some Introductory Thoughts on Contesting 'the Family' in
Court” Murdoch University Electronic Journal of Law, 1996 Vol 3(3) at http://www.murdoch.edu.au/elaw/issues/v3n3/millbank.html)
6. Children as well as their carers are disadvantaged under the current state of the law. They suffer pointless and pervasive economic and
social discrimination that is contrary to the public interest. See Jenni Millbank “If Australian Law Opened Its Eyes to Lesbian and Gay Families, What Would it See?” (1998) Vol 12(1) Australian
Journal of Family Law.
7. The best interests of children are not served by a legal system which treats some family units as privileged by marriage or the heterosexual
nature of the caring unit.
8. It is from this footing that DCI-Australia has supported similar reconsiderations of the state of the law in other parts of Australia, e.g. Domestic
Relationships Act 1994 (ACT), Property (Relationships) Legislation Amendment Act 1999 (NSW), Equal Opportunity (Same Sex Relationships) Bill 1999 (Vic).
9. Such changes to law are not radical. They go only some way to ensuring equal treatment for children in the care of a gay or lesbian
parent and his or her partner. The areas of law addressed by these reforms should be incorporated in a Tasmanian bill.
10. In our view, the changes that have been initiated elsewhere do not actually go far enough from a children’s rights and best interests
point of view.
11. Same sex couples do not have equal status for adoption applications. Their ineligibility leaves the law containing the prejudiced
assumption that same sex couples could never be the best adoptive parents in a particular case. That assumption has been shown to be wrong. There is no research basis for denigrating the
capacity of gay and lesbian couples or individuals to parent effectively. That fact has been recognised by courts and legislatures both here and overseas. See the discussion in Danny Sandor
“Same Sex Couples Can Adopt in Ontario” (1997) Vol 11(1) Australian Journal of Family Law.
12. The legislative reforms initiated elsewhere also fail to give same sex couples lawful access to reproductive technology services that
provide the screened clean sperm that is available to heterosexual couples. This circumstance imperils the physical and emotional health of children because mothers are legally denied the relatively
cheap technology of screening donor semen for transmissible diseases. Yet we know that children are born to lesbian mothers despite the current law. These children and their mothers are
made to bear the consequences of the law’s prejudice, and the life and death risks that it causes. See the discussion in Danny Sandor “Children Born From Sperm Donation” (1997) Vol
4(1) Australian Journal of Human Rights.
13. So far as the meaning of “significant personal relationships” is concerned, we draw the Committee’s attention to the
limitations inherent in merely extending the definition of “defacto spouse” so as to incorporate same sex couples.
14. We suggest that the Committee should look closely at the definition of “personal relationship” found in the Domestic
Relationships Act 1994 (ACT). The Act does not cover the wide range of matters which are under the Committee’s attention. It introduced a property division regime for the ACT that did not limit
eligibility to heterosexual couples, cohabitees, or couples at all. A “domestic relationship” is defined in section 3(1) as:
“a personal relationship (other than a legal marriage) between 2 adults in which 1 provides personal or financial commitment and
support of a domestic nature for the material benefit of the other, and includes a de facto marriage.”
14. Section 3(2) clarifies that:
“(a) a personal relationship may exist between persons although they are not members of the same household; and
(b) a personal relationship shall not be taken to exist between persons only because one of them provides a service for the
other-
(i) for fee or reward;
(ii) on behalf of another person (including a government or body corporate); or
(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.”
15. In doing so, the Act departs from a trend of law reform in Australia which included non-married partners on the basis that they were
“de facto” spouses. The essence of de facto spousal recognition was that such couples were married in fact although not in law, and were in every other respect emulating the married
state. This Act was therefore revolutionary in two respects:
· it included same sex partners on the same footing as unmarried heterosexual partners by making a non-gendered law of general application;
and
· it effected a paradigm shift away from the “marriage-like” state, specifically from the indices of sex and cohabitation,
towards the more flexible and inclusive criteria of interdependence.
16. A similarly conceived definition was proposed by the New South Wales Gay and Lesbian Rights Lobby through the De Facto Relationships
Amendment Bill 1998 (NSW) but not ultimately adopted in the Property (Relationships) Legislation Amendment Act 1999 (NSW). Jenni Millbank (personal communication) has identified the
following legislative effects had the Lobby’s model been adopted:
“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 53 acts. The various laws
by which heterosexual de factos have been recognised in NSW for many years are unchanged except to include same sex relationships.
Secondly, “domestic relationships” are included in 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
Currently the definition in the De Facto Relationships Act 1984 (NSW) 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.
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”.
This definition is carried through in many other pieces of legislation. Same sex couples are included in 53 NSW Acts on the same footing
as heterosexual de facto couples.
Areas of major change are as follows:
Property division on relationship breakdown
1. De Facto Relationships Act 1984, District Court Act 1973: provide access to a property division regime on
relationship breakdown.
2. 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.
Provide for or protect a partner on death or injury
1. Wills, Probate and Administration Act 1898: provides 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 on death.
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 partner’s unpaid long service
leave.
4. Compensation to Relatives Act 1897, Law Reform (Miscellaneous Provisions) Act 1944, Motor Vehicle Accidents Act 1988: 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: extends provision of death or injury benefits paid to employees or insured’s partner.
6. Insurance Act 1902: exempts insurance proceeds left to a partner from the estate on death (ie do not form part of the estate).
7. Liquor Act 1982: allows a partner to carry on business for one month after death of licensee, or apply for license when s/he is
disqualified.
8. Trustee Companies Act 1964: gives a partner a right to apply to court for account.
Decision making 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: includes 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.
5. Adoption Information Act 1990: provides a partner with right to apply for access to adoption records after the death of an
adopted person or birth parent
6. Local Courts (Civil Claims) Act 1970: extends to a partner the right to appear before a Local Court
Outlaw Discrimination
1. Anti-Discrimination Act 1977: includes discrimination against same sex couples
2. Health Insurance Levies Act 1982: gives partners with children access to the family rate of contribution
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: require disclosure of a partner’s interests by a
committee or board member:
2. Legal Profession Act 1987: includes partners in the definition of “associate” of a solicitor for some purposes.
3. Bail Act 1978: includes 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: extend a lease to a remaining partner if a tenant quits residential
premises and to a partner who is resident in a retirement home
5. Rural Lands Protection Act 1989: includes partner as someone who is prohibited from buying property sold to account for a debt.
6. Pre Trial Diversion of Offenders Act 1985: includes a partner in diversionary scheme for sexual offences against children.
7. Credit Act 1984: extends 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
8. Criminal Assets Recovery Act 1990: extends the scope of the Supreme Court to question witnesses regarding criminal assets.
Miscellaneous
1. Dentists Act 1989: allows dentists to practise as a corporation if all the shareholders are dentists or family members of
dentists
2. Duties Act 1997: extends duty concessions to partners sharing property who transfer title to the other.
3. Door to Door Sales Act 1967: extends the right of a partner to cancel certain purchase agreements.
4. Defamation Act 1974, Evidence Act 1995: includes the privilege to ask court that one be allowed to refuse to answer questions
incriminating a partner.
5. Industrial Relations Act 1996: extends 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: includes 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. Also lifts the amount an applicant may earn if their partner is dependant upon them.
7. Trustee Act 1925: includes partners in 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.
Domestic relationship is 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.
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:
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
2. Adoption Information Act 1990: provides a domestic partner with the right to apply for access to adoption records after the death
of an adopted person or birth parent.
3. Bail Act 1978: includes a domestic partner as someone whose interests should be considered protecting when a person in custody
applies for bail.
4. Family Provision Act 1982: provides eligibility to claim part of a domestic partner’s estate.
5. Wills, Probate and Administration Act 1898: provides 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: extends eligibility for provision of death or injury benefits paid to employee’s
domestic partner.”
17. We understand that the current scope of the Property (Relationships) Legislation Amendment Act 1999 (NSW) and the definitions therein
are the subject of a reference to the NSW Law Reform Commission and suggest that the Committee may derive benefit from discussions with the Commissions.
18. DCI-Australia hopes this submission is of assistance and wishes the Committee well in its deliberations. We would welcome receiving
information about the recommendations arising.
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