Statutes Amendment (Relationships) Bill

The Hon. J.M.A. LENSINK obtained leave and introduced a bill for an act to amend the De Facto Relationships Act 1996, the Family Relationships Act 1975 and various other acts to provide for rights and duties to be extended to certain domestic relationships.

Read a first time.

The Hon. J.M.A. LENSINK: I move:

That this bill be now read a second time.

This bill was introduced in its original form in 2004 by the Rann Labor government as the fulfilment of an election pledge following the adoption of it as Labor policy in October 2000. I refer to what the Labor Party platform stated for the 2002 election, as follows:

Labor supports a comprehensive review of all state legislation to remove discrimination against gay, lesbian, bisexual and transgender people.

Further, it said:

. . . to ensure that same sex relationships are recognised in the same way as heterosexual relationships in terms of the provisions of the Equal Opportunity Act.

Broadly, the government bill sought 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 areas of impact of the bill, which can be followed in greater detail in chapter 2 of the Social Development Committee report, are as follows:

1. General property rights (including 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.

2. 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.

3. Acts which come under the regulation of the professions, and there is quite an extensive number of those.

4. 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.

5. Relevant associations for corporate governance provisions; relevant associations for licence purposes, including items such as the Casino Act, gaming machines and so forth, and racing.

6. Financial recovery provisions under the Hospitals Act and the Environment Protection Act.

7. Some tidy-up provisions regarding state superannuation (and I point out that the bill does not extend any entitlements to superannuation but tidies up certain terms to describe types of relationships).

8. 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.

9. Family responsibilities, such as the ability to take parental leave under the Fair Work Act.

10. Exemption from compulsion to give evidence against a partner.

11. Three rights which affect married people and heterosexual de facto couples as well as same sex couples, those being a reduction in the cohabitation period from five years to three years, changes to declaration procedures and changes to confidentiality provisions regarding declarations.

The history is that, as I have said, the bill was introduced in 2004. In the Legislative Council all Liberal and Independent members, including Family First, voted against government members to refer the bill to the Social Development Committee for further consideration. After reading and hearing all the evidence, Liberal members of the Social Development Committee disagreed with the report of the Labor government members. Our concerns were that the bill deleted the term ‘spouse’ throughout South Australia’s laws and categorised married couples under a new umbrella term of ‘domestic partners’, which included all de facto relationships and thereby potentially undermined the unique status of marriage.

Secondly, independent and denominational schools were at risk of losing some of their religious freedoms in regard to an existing right to discriminate in employment. Thirdly, in seeking to address only perceived discrimination against same-sex couples, we were concerned that effectively the bill ignored the issue of other people who might be in long-term caring relationships—the so-called group of people known as ‘domestic co-dependants’. I was a member of that Social Development Committee. I sat through the evidence and I came to the conclusion that the opportunity to scrutinise that bill in great detail was very useful in allowing a detailed examination of its effects.

That committee received written submissions from nearly 2 500 individuals and some 60 organisations, including a large number of church groups. As a result of the Social Development Committee’s actions, the bill was re-introduced into the Legislative Council in July last year with some amendments. The reference to ‘spouse’, which was proposed to be removed from statutes, was reversed. The independent schools issue was resolved, and 10 acts were added to the original list of 82 so that it became 92.

For the members of this chamber who sat through the long-suffering amendments which I moved, we were able to include people in domestic co-dependent situations to provide them with access to the range of measures that were proposed in the original bill. We did come across some difficulties in determining a model for domestic co-dependants in that the existing laws regarding de factos operate under what we call a ‘presumptive model’, that is, that, in order to establish a relationship, a set of criteria must be met and, if they are met, the couple is assumed to be a couple for the purposes of the law regardless of whether or not that is their wish.

We decided that, in terms of domestic co-dependants and in order to avoid the situation where house mates and so forth might be captured against their will, we would devise an optin model. That was also to avoid the issue of fraud, to ensure their intent, and so forth. We came up with a model (which is already identical except different in terminology) in the current De Facto Relationships Act: it is called a ‘cohabitation agreement’. The amendments in the bill passed last year provide that a certified domestic relationship property agreement must be signed, which would establish that that was the intent of both parties.

The government completely ignored the issue of codependants, which was quite disappointing. The bill was passed in the Legislative Council at a late hour on Monday 21 November last year after extensive debate. At the time, two-thirds of Legislative Council members voted in favour of it. The Legislative Council’s passing of the bill before Tuesday 22 November would have allowed the House of Assembly nearly two clear sitting weeks to deal with that piece of legislation. The Attorney-General introduced the bill in the House of Assembly on Thursday 24 November, and at that stage the House of Assembly still had a full week to pass the legislation.

As we know, the final sitting week can be a marathon affair when the government places a high priority on its own legislation, but the times that the House of Assembly adjourned are telling. On Monday of the final week the House of Assembly adjourned at 4.38 p.m.; Tuesday, 10.41 p.m.; Wednesday, 12.50 a.m; and Thursday, 7.11 p.m. In contrast, on its last day, the Legislative Council sat until 1.30 the following Friday morning. I note from the debate in the House of Assembly in that final sitting week that reference was made to a deal not to progress the bill. The Attorney- General rather disingenuously likes to blame the Liberal Party for it, but as his own Treasurer stated in Hansard ‘the deal sticks’.

The bill was then listed for completion of debate on the final sitting day, Thursday 1 December. By this stage the parliament had run out of time. Clearly, the government did not want to sit late in order to deal with it. It had the opportunities and it would have had the numbers to pass it with the support of a minority of Liberals, but it did not. We had the election and the government was returned. During the election campaign the government quite clearly stated in writing that the bill would be introduced in the first session.

The first session of this parliament has been and gone, and I would have to say that it has not been a very heavy session of legislative agenda. We are now in the second session and we are still waiting for the hundreds of bills the Premier has been promising us. Parliamentary counsel has been able to redraft this measure in less than a week. I was very disappointed when, a few weeks ago, The Australian broke the news that it was the intent of crossbench members of this chamber to reintroduce the bill, and the Attorney-General chose to go into scare campaign mode and accuse the Hon. Sandra Kanck and me of having a radical bill which would include a great deal of additional clauses and which, I think, was designed to scare the churches.

As he had stated in his previous comments on the government’s bill, the Attorney tried to have a bob each way and pretend to be a friend of the churches while believing in reducing the unconscionable hardship of people in same-sex relationships. Also, he said that church views should be considered. I do not disagree with that statement at all. In fact, the Social Development Committee did receive a number of representations from churches, and those views were well and truly aired. I must say that, had it not been for the referral of the bill to the Social Development Committee and the committee’s examination of it (which this government resisted), the reference to ‘spouse’ would still not have been in the bill and neither would the independent schools have had their issue addressed.

I would like to see the Attorney-General stop playing games on this measure and be straightforward about what is really in it, which brings me to the point of what is in the bill. Anybody who cares to go through it chapter and verse will find that it is identical to the bill that passed last year, the only changes being that the test clauses, which reside in the amendments to the De Facto Relationships Act and amendments to the Family Relationships Act, have been moved to the front of the bill, so that they are the test clauses rather than appearing in alphabetical order. It then goes into alphabetical order following that.

I can report for the benefit of members that, because we have changed some legislation and some bills have now been gazetted, five bills have been added and five subtracted, so it is still 93. The Carers Recognition Act, which came into operation in December last year, has been added; the Criminal Law (Sentencing) Act has been added, and the relevant section is 9C, relating to sentencing of Aboriginal defendants, which came into operation in December last year.

The Fire and Emergency Services Act came into operation in October last year. The Heritage Places Act, section 38A, relating to ERD Court orders, came into operation in November last year, and the Road Traffic Act, section 9, relating to associates, was assented to in June this year. The following acts have been omitted from this bill: the Chiropractors Act and the Citrus Industry Act have been repealed, and the Physiotherapists Act has been repealed in favour of the Physiotherapy Practice Act.

There are also two acts in these areas that I flag and will need to discuss in greater detail with parliamentary counsel: the Housing Improvement Act and the Residential Tenancies Act have been omitted because there is a question of whether the definitions of a de facto partner and domestic co-dependant are incongruent with provisions relating to allowing a landlord to eject a tenant.We can examine that in due course and reach a decision.

The bill does not touch IVF or adoption. It is identical in all ways to the bill as passed. I will be happy to discuss the clauses in committee, but as the Hon. Nick Xenophon described in relation to his display advertising bill that he moved previously, we are just trying to get the government to hurry up and address this issue. I am not sure what the delay is for, as it is well outside the electoral cycle. I hope that the rumour that has been circulating, about which the Hon. Isobel Redmond, the member for Heysen, questioned the Attorney on 31 August, is incorrect. There is a rumour that the Attorney has done a deal with Family First that the bill will not be progressed in exchange for the Attorney not to have to face the re-establishment of the Atkinson/ Ashbourne affair select committee. I find that an extraordinary set of circumstances if that is the case.

The Hon. D.G.E. Hood: It’s slander and it’s rubbish.

The Hon. J.M.A. LENSINK: It’s slander and it’s rubbish—I am pleased to hear that.

The Hon. B.V. Finnigan: It is a reflection on a minister of the crown.

Members interjecting:

The Hon. J.M.A. LENSINK: I don’t think you want to go there. I am pleased if the government and Family First are happy to say that it is not true, because if it were it would insinuate that the government is quite happy to trade the rights of individuals in this state for political purposes to save somebody’s skin.

In my concluding remarks I point out that this bill is not about sexuality but about equality before the law. It is about how two people choose to manage their own personal affairs, and as a Liberal I support those principles and commend the bill to the council. I move: That standing orders be so far suspended as to enable the bill to pass through its remaining stages without delay.

Motion carried.