Michelle Lensink

Statutes Amendment (Relationships) Bill

This speech is in relation to the Statutes Amendment (Relationships) Bill.

The Hon. J.M.A. LENSINK: I rise to make a second reading speech on my own behalf today because, given that this is a conscience issue for all Liberal members, each of us will present our own views as we see fit. This is quite an extensive bill and it is quite complex, and I think it is fair to say that all members would have been lobbied on this in a way that they have not been lobbied on a number of other things, and certainly my emails, along with a number of other people's, have been filled with people urging me to do one thing or another in the best interests of South Australia.

I think it is also fair to say that it is the sort of issue which evokes a strong amount of passion on either side of the debate and, along with that, which I think is part of the nature of it, perhaps some misinformation has been promulgated in favour of various arguments put forward. I would like to say that I think that we need to do our utmost to be objective about these issues and to look at the facts that are before us.

The bill was first introduced into the House of Assembly on 15 September 2004 by the Attorney-General, and then, curiously, an identical bill was introduced in the Legislative Council on 9 November 2004 while the second reading was in progress in the House of Assembly. Then, on 23 November 2004, the government decided to withdraw the bill from the House of Assembly after only three members had had the opportunity to speak.

The bill in this chamber was referred to the Social Development Committee, and I propose to give a separate speech on that this evening. I would like to say, for the record, that I did want to give those two speeches in close proximity because, in my view, they are intertwined. The bill was referred to the committee and it has reported, and that motion is still before us. So the bill is back in this chamber with some amendments, and 10 new acts have been added to the list. Originally it was 82; and it is now 92. Broadly, the effect of the amendments is to extend to same-sex couples a series of rights and responsibilities which currently apply to married couples and those in heterosexual de facto relationships.

The following areas that will have some impact are largely drawn from chapter 2 of the report. First, there are general property rights (which include stamp duty exemptions); binding agreements about property; property division upon separation; housing-related entitlements; and a new category which is exemption or partial exemption of certain land from land tax. Secondly, we move on to rights as next of kin, which includes: inheritance, property and entitlement rights; rights to contest a will; rights to claim compensation if a partner is wrongfully killed; a right to veto cremation; a right to consent or refuse consent to organ donation and post-mortem examination; guardianship orders; rights if a partner is detained under the Mental Health Act; rights to consent to forensic procedures; problem gambling orders; criminal behaviour; domestic violence orders and common assault; and assumptions regarding principal place of residence.

There are a number of other acts which come under regulation of the professions, and some of those acts we have dealt with recently in this chamber, so the revised acts have been included as well as the old acts. I will not read that particular list. There is also a large number of acts that come under the area of conflict of interest through being considered an associate, a relative, or the like of someone who may need to declare their interest. Further, there are relevant associa¬tions for corporate governance provisions; relevant associa¬tions for licensing purposes—which includes the Casino Act, gaming machines and so forth, and racing; financial recovery provisions under the Hospitals Act and the Environment Protection Act; and some tidy-up provisions regarding state superannuation. I note that parliamentary counsel has advised me that this bill does not further extend any entitlements to superannuation but is a bit of a tidy-up in relation to use of certain terms to describe types of relationships.

Also included are: rights under the Equal Opportunity Act; other rights relating to care which affect people who may reside in retirement villages or be captured by the Supported Residential Facilities Act; family responsibilities—the ability to take parental leave under the fair work act; and exemption from compulsion to give evidence against a partner. There are also three rights which affect married people and heterosexual de facto couples as well as same-sex couples, and they are: the reduction in the cohabitation period from five years to three years; changes to declaration procedures; and changes to confidentiality provisions regarding declarations.

I also state for the record that I have been somewhat bemused by the government's attitude in relation to this bill. Perhaps it is in some sort of tetchy mood, but I have felt some sort of compulsion to move on this quickly this week, and I would like to state that I believe on this side we have been very cooperative in the last two weeks in trying to get legislation through in a reasonable time. Perhaps the govern¬ment does not realise that it does not necessarily have a mandate in this chamber and needs to respect the institutions of the parliament.

I have sought parliamentary counsel's assistance in drafting some amendments to the bill which, broadly speaking, would include the issue of co-dependents, which has been completely excluded from the bill. I think it is fair to say that it is generally known that a number of other members also have sought similar amendments. So I think there is some sort of broad agreement that a compromise ought to be able to be reached on this issue. As is often the case, the devil is in the detail. We agree on a number of issues in principle but whether or not it is a simple thing to do remains to be seen, and I am grateful for the advice of parliamentary counsel. I understand that they are under considerable pressure, particularly this week, and they have been extremely cooperative in trying to accommodate all members and have sought to assist us in that way.

I am also not necessarily convinced about the proposed reduction in the cohabitation period, that is, from where it is at the moment under the Family Relationships Act, which is five years continuously or six years aggregated, to three and four years. I say that not from any wowser point of view, but because I think there would be a number of people who would end up being classified as being in de facto relationships when that may not have been their intent. Presently, if a child is produced in the relationship then de facto status applies immediately, but I am not convinced that, without a child having been produced, reducing the period of cohabita¬tion will serve people in any way.

In relation to various models and perhaps some of the history in this state, in 1975 South Australia brought in the Family Relationships Act which gave some recognition to de facto couples, and my understanding is that that was largely to assist in the situation where a child had been produced in that relationship and the child and either dependent member of that couple ought to be provided for financially. In that same year, interestingly enough, we had decriminalisation of homosexuality. I think that, because South Australia led the way in recognition of de factos in that year, perhaps that five-year cohabitation period applied, whereas I note that a number of states have reduced that cohabitation period to three years and some states have reduced it to two years.

There are a couple of different models to be considered. This bill and our current laws provide what is called a `presumptive model' for de facto relationships; that is, a set of criteria must be met, whether or not that is the intent of the couple. In some other models in other states and overseas, people can also be required to register their relationship or make some statement of intent. That again is the quandary we face with the issue of domestic co-dependents. I do not believe anybody would want to increase the likelihood of fraud, but there are a number of people in this chamber who believe very strongly that the needs of domestic co-depen¬dents should be encapsulated in this bill, and if we can all get our heads together we should be able to reach some form of agreement. I must say I have been disappointed with the attitude of the government towards the issue of co-dependents, because I think we missed an opportunity in the report, but I will speak further to that when I speak on the motion.

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