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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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COMMONWEALTH POWERS (DE FACTO RELATIONSHIPS) BILL

Second Reading

Hidden_Subproceeding:Second Reading

Adjourned debate on second reading.

(Continued from 16 July 2009. Page 3570.)

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (10:45): The Rann government welcomes this bill. We think it is a wise measure. We have never been opposed to doing this, but the difficulty that presented itself to the government was that South Australia had different de facto legislation from other jurisdictions.

Much as the Leader of the Opposition will not want to hear this, the reason we have different de facto legislation from the other states is that her party, led by the former member for Hartley, Mr Joe Scalzi, insisted, when we were doing our same-sex legislation, that the legislation recognise domestic partners who did not have a sexual relationship. That was insisted upon, not merely by the former member for Hartley but by a majority of the parliamentary Liberal Party. They insisted, if we were to get equality for same-sex couples, that also non-sexual domestic partners were to be part of the arrangement.

I understand that the member for Heysen did not support that personally, but her party did—and it insisted on it. The difficulty in referring the law about de factos to the commonwealth is that they will not accept the full reference if it includes non-sexual domestic partners. As Attorney-General, I have been trying to seek some way around that, and now I have. So I will be moving amendments to the leader's bill, but I emphasise that on the principle of the bill we are of one mind. Indeed, the Rann government would have done this much earlier if it had found the legal means to do it.

We now have and, as I have said in the past and demonstrated by any number of examples, the Rann government is happy to support private members' legislation wheresoever it comes from. We have supported private members' bills from Independents; we have supported private members' bills from minor parties, and we have supported private members' bills from the Liberal opposition. We did it only at the last sitting, supporting the member for Davenport. This is something the Liberal Party would never ever do when it was in office. When the Liberal Party was in office, it would adjourn private members' bills from the Labor opposition into oblivion.

Mrs REDMOND: I rise on a point of order. The Attorney is rabbiting on about things which have absolutely nothing to do with the bill before the house and, given that he has already taken up a fair bit of private members' time in his previous ministerial statement, with our consent—

The SPEAKER: No; there is no point of order.

Mrs REDMOND: Relevance, sir, is a relevant point of order, I would have thought.

The SPEAKER: Second reading speeches have always been given a certain amount of latitude. The Attorney is speaking on the subject which is the referral of powers. The Attorney.

The Hon. M.J. ATKINSON: The whole house and the member for Heysen in particular gave me leave to make that ministerial statement, so it was done with her consent. When she says it was done without consent, that is completely false.

Members interjecting:

The SPEAKER: Order!

Mrs Redmond: I never said that.

The Hon. M.J. ATKINSON: You did say that.

The SPEAKER: The leader and the Attorney!

The Hon. M.J. ATKINSON: You said I did it without consent.

The SPEAKER: The Attorney! The Attorney needs to stick to his second reading speech.

The Hon. M.J. ATKINSON: The Rann government has a long record of conceding that it does not have a monopoly on legislative wisdom. It has again and again used private members' bills as the vehicle to change the statute law of this state and it did it only yesterday when the member for Fisher's bill on spent convictions passed both houses of parliament.

We have a long record, a record that the Liberal Party does not have in government, because the Liberal Party would either adjourn private members' bills from the opposition into oblivion or it would oppose them, vote them down and then introduce substantially the same bill as a government bill. I invite members opposite to go and look at the record during the Brown and Olsen government. With those words, the government supports the bill.

Mr HANNA (Mitchell) (10:51): I rise to support this important measure for South Australia. The Liberal opposition has moved a bill to allow the property and other issues arising from de facto relationships to be adjudicated in the Family Court rather than the District Court. The Family Court is a more appropriate jurisdiction in a number of ways.

The Attorney-General, it seems, cannot help but take a partisan approach to every point that comes up in this chamber. One wonders whether that is a suitable qualification for an attorney-general, but the fact is that this measure should have been introduced by the government, as other states have done.

I appreciate the point about South Australia having different de facto legislation, but with the resources available to the government, this is something that should have been brought in by the government at least six months ago—and it was about that time the opposition brought in this bill. It is true that the government has amendments which improve the bill. I am happy to support the bill and the amendments.

Mrs REDMOND (Heysen—Leader of the Opposition) (10:52): First, I acknowledge, finally, the government's support for this bill, which I note I introduced when I was the shadow attorney-general in May, and I only did that then because this government had failed to respond in any way to a lengthy letter from the Law Society of South Australia in which they had detailed the many reasons why it was a very good idea for us to fall in line with the other states and refer the power to make decisions over de facto property settlements to the federal sphere.

I notice in his opening comments that the Attorney-General said that the 'government welcomes it', 'considers it a wise measure' and that they never opposed it. Technically, that is true, they never did oppose it, but for the Attorney to imply that they did not have the resources to attend to this matter because it was such a complex issue because of the difficulty that our state has because of the definitions—and I accept what the Attorney says about what went through in the earlier de facto relationships legislation—and that that little problem created such an enormous difficulty that this state was unable to move for all that time, forcing me to bring in this matter as a private members' bill in May—and I do thank the government for finally acceding to our request to get this through so that it will pass through this session of the parliament—is just a nonsense.

My bill is four clauses long. You have five amendments taking up 1½ pages. You have the entire resources of government at your disposal. You could have addressed it—and well you know it, Attorney, had you chosen to—but for some perverse reason the government chose, through you, to take no action on this matter over months. The Law Society wrote an extensive letter detailing that not only they but the legal profession and, indeed, the judges, who are always complaining that they have too much work and this would actually relieve them of some of the work that they fill ill-equipped to do because it is not stuff that they would normally be having to do—they would much rather be getting through the case lists which are already too heavy in our criminal and civil system—agreed that it was a good idea.

Yet, in spite of those requests, the Attorney remained mute for months and months and months, and even after our bill was introduced in May, did nothing to help this bill get passage. I had to send a copy of the letter from the Law Society to every member of this place so that everyone could see that this government was just trying to block things by not proceeding, and now the government has finally decided it will accede—and I do thank the government for that. However, to suggest that it is a great thing for this government to say, 'We take these private members' bills'—you sure do. I mean, you have taken private members' bills like the one from the member for Schubert and said, 'Oh, our great initiative about drug driving.' You have taken private members' bills and then call it your own initiative when you finally get dragged kicking and screaming, as usual, to follow the initiatives of other people in this place and then claim it as your own initiative—

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order!

Mrs REDMOND: I will simply close by saying that I do welcome, finally, that the government has seen the sense of this measure. I only wish they had seen it a lot sooner, but I look forward to letting the members of the legal profession know that we have finally seen some sense in the chamber and the matter will proceed.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

New clause 1A.

The Hon. M.J. ATKINSON: I move:

Page 2, after line 3—After clause 1 insert:

1A—Commencement

(1) This Act will come into operation on a day to be fixed by proclamation.

(2) Section 7(5) of the Acts Interpretation Act 1915 does not apply in relation to the commencement of this Act or any provision of this Act.

This amendment is to enable constitutional authority over companion couples to be referred to the commonwealth when the commonwealth is inclined to accept the referral, whenever that may be.

Mrs REDMOND: Madam Chair, I indicate that the opposition will be agreeing to the amendments as tabled, and therefore I am happy for us to deal with all the amendments en bloc if possible.

The CHAIR: No, they deal with separate clauses. We have to take them clause by clause, but we can do it quickly.

New clause inserted.

Clause 2.

The Hon. M.J. ATKINSON: I move:

Page 2, lines 5 to 26 [clause 2(1), (2) and (3)]—Delete subclauses (1), (2) and (3) and substitute:

(1) In this Act—

companion couple relationship means the relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis, but does not include—

(a) the relationship between a legally married couple; or

(b) a de facto relationship; or

(c) a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or an behalf of some other person or an organisation of whatever kind;

de facto relationship has the same meaning as in section 4AA of the Family Law Act 1975 of the Commonwealth;

financial matters—

(a) in relation to the parties to a de facto relationship—means any or all of the following matters:

(i) the maintenance of 1 of the parties;

(ii) the distribution of the property of the parties or of either of them;

(iii) the distribution of any other financial resources of the parties or of either of them;

(b) in relation to the parties to a companion couple relationship means any or all of the following matters;

(i) the maintenance of 1 of the parties;

(ii) the distribution of the property of the parties or of either of them;

(iii) the distribution of any other financial resources of the parties or of either of them.

(2) Words or phrases in the definition of financial matters that are defined in the Family Law Act 1975 of the Commonwealth have the meaning set out in that Act.

These amendments set out definitions that take into account South Australian companion couples and introduce definitions to bring the bill in line with the commonwealth language and definition.

Amendment carried; clause as amended passed.

Clause 3.

The Hon. M.J. ATKINSON: I move:

Page 3—

Lines 7 to 9 [clause 3(1)(a)]—Delete:

'de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes' and substitute:

the parties to de facto relationships arising out of the breakdown (other than by reason of death) of those de facto relationships.

Lines 10 to 12 [clause 3(1)(b)]—Delete paragraph (b) and substitute:

(b) financial matters relating to the parties to companion couple relationships arising out of the breakdown (other than by reason of death) of those companion couple relationships.

The member for Heysen would make an outstanding ministerial staffer, keeping me up to the mark on the committee stage. The amendments recognise and separate the two types of relationships to be recognised in the bill: de facto couples and companion couples. The amendments also adopt commonwealth language.

Amendments carried; clause as amended passed.

Clause 4 passed.

Title.

The Hon. M.J. ATKINSON: I move:

Delete 'matters relating to de facto relationships to the parliament of the commonwealth' and substitute:

Financial matters relating to the breakdown of certain relationships to the parliament of the commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth.

This amendment is self-explanatory and also adopts commonwealth language.

Amendment carried; title as amended passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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