Relationships Register Bill

Introduction and First Reading

Ms HILDYARD (Reynell) (15:47): Obtained leave and introduced a bill for an act to make provision for the registration of certain relationships; to make consequential, related and other amendments to the Assisted Reproductive Treatment Act 1988; the Births, Deaths and Marriages Registration Act 1996, the Domestic Partners Property Act 1996, the Equal Opportunity Act 1984; the Family Relationships Act 1975; and the Wills Act 1936. Read a first time.

Second Reading

Ms HILDYARD (Reynell) (15:49): I move:

That this bill be now read a second time.

I am so proud to introduce this bill on behalf of our government. This bill is crucial to ensuring that all South Australians, and so many others, are treated with dignity and respect by our laws, to ensuring that all relationships are respected and to ensuring that we continue to move towards a community that is truly equal—goals that all of us in this house should always strive and aspire to achieve.

South Australia has a strong record of ensuring that relationships of all kinds are given the respect and acceptance they deserve through its laws. We have been a state that has rightly responded to the generations of brave activists who have spoken up for equality. Throughout our recent history we have made a number of changes to our legislation and policy in relation to lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people, changes that are focused on including all South Australians in all aspects of South Australian community life.

Whilst we have achieved much, more must be done. What we are doing through this bill is part of that great tradition of striving to achieve equality and inclusivity, and it represents a significant step on the road to finally ending discrimination. In January 2015, our Attorney-General gave the South Australian Law Reform Institute (SALRI) reference to inquire into and report on South Australian laws that discriminated on the grounds of sexual orientation, gender, gender identity and intersex status.

Following their review, SALRI released a number of reports. On 2 June 2016, SALRI released a report, entitled 'Rainbow families: equal recognition of relationships and access to existing laws relating to parentage, assisted reproductive treatment and surrogacy'. The report encapsulated SALRI's review of equal recognition of relationships and parenting rights and surrogacy in South Australia and recommended a number of changes that are indeed well overdue.

On 30 June 2016, SALRI released a report, entitled 'Lawful discrimination: exceptions under the Equal Opportunity Act 1984 to unlawful discrimination on the grounds of gender identity, sexual orientation and intersex status'. Some recommendations made by that report are complex, and consultation will occur to consider those recommendations. However, there are a number of recommendations in that report included in this bill to expedite the removal of discrimination from our legislation.

On 26 July, I was proud that this parliament passed the Statutes Amendment (Gender Identity and Equity) Bill 2016. The bill removed binary notions of sex and gender and amended provisions of South Australia's legislation which previously failed to set out how the law would apply to a person who is intersex or gender diverse. The bill also removed interpretive language in South Australia's legislation that had the potential to discriminate against people based on their relationship status. Today, our parliament is asked to take another important step forward to removing discrimination by passing legislation that will create a formal mechanism to recognise relationships through registration.

This bill, when passed, will create an option for couples in any relationship to more easily demonstrate their status when dealing with various bodies, including government agencies and service providers, in order to have their relationship rightly respected and to access their rights and entitlements. The bill will achieve this through the implementation of the recommendations set out in the SALRI equal recognition of relationships report as they relate to the establishment of a relationships register, amendment of access and eligibility provisions, the rules dealing with surrogacy and the recognition of legal parentage, and the amendment of the Wills Act 1936.

The relationship register, once established, will also ensure that South Australia is in line with the federal government's moves to remove discrimination of unmarried people, whether in heterosexual or non-heterosexual relationships. The commonwealth has amended its Acts Interpretation Act 1901 to define a de facto partner in its legislation to include partners in registered relationships under a prescribed law of a state or territory. This government will work with the commonwealth to have this bill added as a prescribed law once passed by the South Australian parliament.

This bill, once passed, will also bring South Australia into line with other jurisdictions that have relationships registers, including the Australian Capital Territory, New South Wales, Victoria and Tasmania. This bill recognises that people in South Australia choose to enter diverse types of relationships. Unmarried couples, whether in heterosexual or non-heterosexual relationships, will be able to register their relationships, receive a certificate of registration and know that their relationship is respected and recognised here in South Australia.

This register provides an important avenue for all couples to express their commitment to each other in a dignified and legally recognised way. This reform respects the dignity of unmarried couples. It does this by creating a mechanism through which couples can register their relationship with ease, and through this mechanism it will be easier for couples to prove that they are in a genuinely committed relationship. It will make simpler the process of seeking access to entitlements and to asserting their rights as a couple, including in situations of a medical nature.

Couples who choose not to register their relationships will not be disadvantaged, as the provisions regarding de facto relationships will not be altered by this bill. A registered relationship is not, of course, a marriage. Sadly, our South Australian parliament has no constitutional power to legislate in relation to marriage; however, this bill does recognise the freedom of individuals to choose to enter relationships in diverse forms and provides legal recognition and support for that choice.

I turn now to the key features of the bill. The object of the bill is to provide for the legal recognition of persons in a relationship as a couple, regardless of their sex or gender identity, by registration of the relationship. The Registrar of Births, Deaths and Marriages will administer the register. Registration will be voluntary. A couple must apply to the Registry of Births, Deaths and Marriages to have their relationship registered. This recognises individual autonomy, with partners voluntarily choosing to register their relationship and to be bound by the legislation.

The effect of clauses 8 and 9 is that, on receipt of a valid application and after a 28-day cooling-off period, the registrar must register the relationship. The cooling-off period is designed to ensure that the decision to register a relationship is a considered one. Either party may withdraw his or her application during the cooling-off period. This has similarities with the commonwealth Marriage Act 1968, whereby at least one month's notice must be served before a marriage can be lawfully solemnised.

Clause 13 provides for automatic revocation of registration if one of the parties dies or marries. There is also provision in clause 10 to revoke registration of a relationship in cases where a relationship has broken down. To ensure that registrations are not revoked lightly and to encourage people to think carefully before entering into registered relationships, clause 11 creates a 90-day cooling-off period before a registration can be revoked. This is consistent with the New South Wales Relationships Register framework.

The bill also provides for the potential recognition of interstate registered relationships. Clause 26 provides that regulations may declare that a class of relationships registered or recognised under a corresponding law of another state or territory or another country are 'registered relationships' for the purpose of this act. This will ensure that couples who register their relationship in another jurisdiction and then move to South Australia do not have to reregister their relationship in this state. This will also provide for the automatic recognition of recognised overseas non-heterosexual marriages under South Australian law.

This provision is vital to ensuring that circumstances such as those experienced by the family of Mr David Bulmer-Rizzi upon his tragic death in South Australia can be avoided in the future. In our gallery today is David's husband, Marco, whom I had the absolute pleasure of meeting earlier today. Marco has flown from England to be here for the introduction of this bill. His struggle to ensure that his relationship—his deep love and extraordinary commitment—was given the dignity and respect that it deserved has been a driving force for pushing forward this agenda.

I commend you, Marco. I mourn with you. I thank you for your courage in taking up this fight. I offer my deepest apology for what you went through at the most tragic of times, and in moving this bill I give my absolute respect to your relationship and to the love that you shared with your husband. Together, we will ensure that no-one else will go through what you did. Together, we will ensure that all relationships are respected by our parliaments, by our government structure and, most importantly, by our communities.

This bill also makes a number of consequential amendments to other legislation to ensure that all the recommendations of the SALRI report are captured. Following the passage of this bill, a consequential amendments bill will also be introduced to address references to marriage-like relationships throughout South Australia's legislation and to ensure that, where relevant, those references are amended to take into account persons in registered relationships. It is also intended that the remaining recommendations set out in the SALRI report of 30 June 2016 will be fully considered in due course.

This bill is a crucial and strong step towards removing discrimination against unmarried couples, whether they are in a heterosexual or non-heterosexual relationship. It provides a mechanism for demonstrating their love and shared commitment and facilitates the recognition of such relationships for practical purposes. It also demonstrates our respect for the many diverse relationships in our community and across the globe, and rightly promotes a more inclusive South Australia.

Again, I commend Marco, and I recognise and respect his marriage to the love of his life. I commend the bill to this house and the step that it takes towards equality. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Object

The object of this measure is to provide for the legal recognition of persons in a relationship as a couple, irrespective of their sex or gender identity, by registration of the relationship.

4—Interpretation

This clause sets out the definitions of words and phrases for the purposes of this measure, including the following:

the Registrar is the Registrar of Births, Deaths and Marriages within the meaning of the Births, Deaths and Marriages Registration Act 1996 (the BDMR Act);

a registered relationship is a relationship that is registered under this measure.

Part 2—Registered relationships

Division 1—Registration

5—Eligibility for registration

This clause sets out the eligibility requirements for registration of a relationship under this measure and provides that 2 adults who are in a relationship as a couple, irrespective of their sex or gender identity, may apply to the Registrar for registration of their relationship.

A relationship cannot be registered—

unless at least 1 of the adults resides in South Australia; or

if—

either adult is married; or

either adult is already registered under this Act or a corresponding law as being in a registered relationship or a corresponding law registered relationship; or

either adult is in a relationship as a couple with another person; or

the adults are related by family.

6—Applications for registration

This clause provides for the application procedure for registration. An application for registration of a relationship is to be made in the form approved by the Registrar and must be accompanied by—

a statutory declaration by each person in the relationship stating the following:

that the person wishes to register the relationship;

that the person is in a relationship as a couple with the other person;

that the person is not married;

that the person is not registered under this measure or a corresponding law as being in a relationship or a corresponding law registered relationship;

that the person is not in a relationship as a couple with a person other than the other applicant;

that the person does or does not reside in South Australia;

that the person is not related to the other applicant by family; and

evidence of the identity and age of each person in the relationship; and

the fee prescribed by the regulations; and

any other documents and information prescribed by the regulations.

7—Cooling-off period for registration

This clause provides that the Registrar must not register a relationship before the end of the cooling-off period (being a period ending 28 days after the application is made) for the registration application (which application may be withdrawn at any time during the cooling-off period).

8—Registration of relationships

This clause provides that the Registrar must register a relationship in the Register as soon as practicable after the end of the cooling-off period if—

the Registrar is satisfied that the relationship may be registered under this Act; and

the application has not been withdrawn.

9—Commencement of registered relationships

This clause provides that a registered relationship will be taken to commence when the Registrar makes an entry relating to the relationship in the Register, including any particulars required by regulation.

Division 2—End of registered relationships

10—Applications for revocation of registration by parties

This clause provides for an application to be made by 1 or both persons in a registered relationship to the Registrar to revoke the registration of the relationship. The clause sets out the requirements for making such an application.

11—Cooling-off period for revocation applications

This clause provides that the cooling-off period for a revocation application is the period ending 90 days after the application for revocation is made. An application may be withdrawn during this period.

12—Revocation on application by 1 or both persons

This clause provides that the Registrar must revoke the registration of a registered relationship as soon as practicable after the end of the cooling-off period if an application is made under this Division and the Registrar is satisfied that the application has not been withdrawn.

13—End of registered relationships

This clause provides that the registration of a registered relationship is revoked—

on the death of a person in the relationship;

on the marriage of a person in the relationship;

if an application for the revocation of the registration of a relationship has been made under the Division—when the Registrar makes an entry relating to the revocation of the relationship in the Registrar, including any particulars required by regulation.

14—Void registrations

This clause provides that registration of a relationship is void if—

when the relationship was registered, registration under this measure was prohibited; or

the agreement of 1 or both of the persons in the relationship to the registration was obtained by fraud, duress or other improper means; or

when the relationship was registered, either party was mentally incapable of understanding the nature and effect of the registration.

Part 3—Relationships register

Division 1—Keeping the Register

15—Relationships register

This clause provides that the Registrar must maintain a register of registered relationships (the Relationships Register) which—

must contain the particulars of each registered relationship required under this Act to be included in the Register in a form determined by the Registrar; and

may contain further information if its inclusion is authorised under the regulations.

The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate.

Division 2—Registrar's powers of inquiry

16—Registrar's powers of inquiry

This clause gives the Registrar power to conduct an inquiry to find out—

particulars to verify information given for, or in connection with, an application for registration of a relationship or revocation of registration; or

whether particulars of a registered relationship have been correctly recorded in the Register.

This clause is similar to section 41 of the BDMR Act.

Division 3—Correction of Register

17—Registrar's power to correct Register

This clause allows the Registrar to correct the Register—

to reflect a finding made on inquiry under the previous Division; or

to bring the particulars contained in an entry about a registered relationship into conformity with the most reliable information available to the Registrar of the registered relationship.

This clause is similar to section 42 of the BDMR Act.

Division 4—Access to, and certification of, Register entries

18—Access to Register

19—Search of Register

20—Protection of privacy

21—Issue of certificates

Clauses 18 to 21 mirror sections 43 to 46 of the BDMR Act.

22—Falsification of certificate etc

This clause mirrors section 53 of the BDMR Act.

23—Access policies

This clause mirrors section 47 of the BDMR Act.

24—Fees

25—Power to remit fees

Clauses 24 and 25 mirror sections 48 and 49 of the BDMR Act.

Part 4—Recognition of corresponding law registered relationships

26—General requirements for corresponding laws

This clause provides that the regulations may declare that a class of relationships registered or recognised under a corresponding law are corresponding law registered relationships for the purposes of this measure.

Without limiting the generality of that statement, the general requirements for a relationship to be registered or formally recognised under a corresponding law are that the relationship—

must be between 2 adult persons; and

must have been entered into consensually; and

must not be between persons who are related by family; and

must not be entered into by a person who is already married; and

must not be entered into by a person who is already in a relationship that is registered or formally recognised under that law.

27—Corresponding law registered relationships taken to be registered relationships under this Act

This clause provides that a corresponding law registered relationship, that is not a marriage within the meaning of the Marriage Act 1961 of the Commonwealth, will be taken to be a registered relationship under this measure, and a person who is in a corresponding law registered relationship may apply to the Registrar for a certificate to that effect.

Part 5—General power of review

28—Review

This clause allows a person who is dissatisfied with a decision of the Registrar made in the performance or purported performance of functions under this measure to apply to the Magistrates Court for a review of the decision. On such a review, the Court may—

confirm, vary or reverse the Registrar's decision; and

make consequential and ancillary orders and directions.

Part 6—Miscellaneous

29—False representation

This clause makes it an offence to make a false or misleading representation in an application or document under this Act, knowing it to be false or misleading. The penalty for the offence is a fine of $1,250.

30—Unauthorised access to or interference with Register

This clause makes it an offence (the penalty for which is a fine of $10,000 or imprisonment for 2 years) if a person, without lawful authority—

obtains access to the Register or information contained in the Register; or

makes, alters or deletes an entry in the Register; or

interferes with the Register in any other way.

31—Regulations

This clause makes provision for the making of regulations for the purposes of the measure.

Schedule 1—Consequential, related and other amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Assisted Reproductive Treatment Act 1988

2—Amendment of section 9—Conditions of registration

Section 9 of the principal Act makes provision for the kinds of conditions which must be imposed on the registration of a person authorised to provide assisted reproductive treatment under the principal Act. The first proposed amendment to this section provides for an additional condition of registration prohibiting the person from refusing to provide assisted reproductive treatment to another on the basis only of the other's sexual orientation or gender identity, marital status, or religious beliefs. Currently, a condition of registration prevents the provision of assisted reproductive treatment except where a woman or man is or appears to be infertile. This would be changed by an amendment that provides that such treatment may be provided if it appears to be unlikely that, in the person's circumstances, the person would become pregnant other than by an assisted reproductive treatment. The third proposed amendment achieves gender neutral language.

Part 3—Amendment of Births, Deaths and Marriages Registration Act 1996

3—Amendment of section 6—Registrar's functions

The proposed amendments to section 6 are consequential on the enactment of this measure.

Part 4—Amendment of Domestic Partners Property Act 1996

4—Amendment of section 3—Interpretation

The amendments proposed to section 3 of the principal Act are consequential on the enactment of this measure and make provision for domestic partners to include persons in a registered relationship.

Part 5—Amendment of Equal Opportunity Act 1984

5—Amendment of section 5—Interpretation

The amendments proposed to section 5 of the principal Act are consequential on the enactment of this measure and make provision for domestic partners to include persons in a registered relationship.

6—Amendment of section 29—Criteria for discrimination on ground of sex, gender identity, sexual orientation or intersex status

It is proposed to amend section 29 to prohibit discrimination on the ground of a person's intersex status and substitute binary language for gender neutral language.

7—Amendment of section 30—Discrimination against applicants and employees

8—Amendment of section 31—Discrimination against agents and independent contractors

9—Amendment of section 32—Discrimination against contract workers

10—Amendment of section 33—Discrimination within partnerships

11—Amendment of section 34—Exemptions

12—Amendment of section 35—Discrimination by associations

13—Amendment of section 36—Discrimination by qualifying bodies

14—Amendment of section 37—Discrimination by educational authorities

15—Amendment of section 38—Discrimination by person disposing of an interest in land

16—Amendment of section 39—Discrimination in provision of goods and services

17—Amendment of section 40—Discrimination in relation to accommodation

18—Amendment of section 45—Charities

19—Amendment of section 47—Measures intended to achieve equality

The amendments proposed in clauses 7 to 19 are consequential on the proposed inclusion in section 29 of the protection against discrimination based on a person's intersex status.

20—Insertion of Part 6A

It is proposed to insert a new Part after section 91 of the principal Act.

Part 6A—Practice guidelines

91A—Commissioner may issue practice guidelines

New section 91A makes it clear that the Commissioner may issue practice guidelines (to be published on the Commissioner's website) on any matter relating to the principal Act. In preparing practice guidelines, the Commissioner should consult with persons or bodies that the Commissioner considers represent the areas or persons to whom the practice guidelines will relate.

91B—Effect of practice guidelines

New section 91B clarifies that practice guidelines are not legally binding but a court or the Tribunal may consider evidence of compliance with practice guidelines if relevant to any matter before the court or Tribunal under the principal Act.

Part 6—Amendment of Family Relationships Act 1975

21—Amendment of section 10A—Interpretation

This amendment proposes to substitute the definition of qualifying relationship that is not substantially different from the current definition but uses language consistent with other proposed amendments.

22—Amendment of section 10C—Rules relating to parentage

This proposed amendment would amend new section 10C(3a) (which commences operation on 23 September 2016) to ensure the use of consistent language.

23—Amendment of section 10F—Interpretation

Part 2B of the principal Act provides for certain surrogacy agreements to be legal. Currently, the scheme envisages that there will be 2 commissioning parents in relation to a surrogacy contract. The proposed amendments to this Part (to be effected by clauses 24 to 27) will, subject to the conditions set out in section 10HA, allow persons in a registered relationship to enter into a recognised surrogacy agreement as commissioning parents and allow for a single person to be considered as a commissioning parent.

24—Amendment of section 10HA—Recognised surrogacy agreements

25—Amendment of section 10HB—Orders as to parents of child born under recognised surrogacy arrangements

26—Amendment of section 10HC—Ability to discharge order

27—Amendment of section 10HD—Court to notify Registrar of Births, Deaths and Marriages

The amendments to these clauses are consequential on the policy that would allow a single person to enter into a recognised surrogacy agreement as a sole commissioning parent.

Part 7—Amendment of Wills Act 1936

28—Insertion of section 19A

It is proposed to insert a new section 19A at the beginning of Division 4 of Part 2 of the principal Act dealing with the revocation of wills. It is intended that the action of entering into a registered relationship or revoking a registered relationship will have the effect of revoking a will just as getting married or terminating a marriage has that effect.

19A—Interpretation

New section 19A inserts definitions of partner and registered relationship for the purposes of the Division.

29—Amendment of section 20—Will to be revoked by certain events

The amendments proposed to section 20 of the principal Act use gender neutral language and provide that the entering into a registered relationship by a person will revoke any will previously made by the person in the same way that getting married revokes a previously made will. However, a will made in contemplation of the registration of a relationship will not be revoked by the commencement of the registered relationship contemplated.

30—Amendment of section 20A—Effect on will of termination of a marriage or registered relationship

31—Amendment of section 22—In what cases wills may be revoked

These proposed amendments are consistent with the amendments proposed to sections 19, 20 and 20A of the principal Act.

Debate adjourned on motion of Ms Chapman.