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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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STATUTES AMENDMENT (DE FACTO RELATIONSHIPS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 March 2011.)

Ms CHAPMAN (Bragg) (12:12): It is with pleasure that I rise to speak to indicate the opposition's support on the Statutes Amendment (De Facto Relationships) Bill 2011. Why is this a bill that gives me more pleasure than others to support? There are several reasons. One is that the need for consequential amendments to legislation in South Australia arises as a result of our leader, the member for Heysen, introducing a private member's bill, which was ultimately supported by this parliament, to transfer de facto relationship jurisdiction to the commonwealth. That was a matter that was very important for South Australia as we were the only jurisdiction I think at that point who had refused to deal with this matter.

The Hon. J.R. Rau: I think WA.

Ms CHAPMAN: The Attorney-General interjects 'WA'. I think by that stage they had indicated that they would have a state jurisdiction but, as with the Family Law Act, they have their own court. I am not quite sure what model ultimately transpired from Western Australia, but Western Australians have always been a little idiosyncratic—probably not quite to the extreme of Queensland but, nevertheless, they always like to have their own little models.

However, we in South Australia were, I think it is fair to say, in a completely stagnant state. Again, this was a matter which was directly under the jurisdiction of the former attorney-general, the member for Croydon, who for reasons best known to himself was unwilling or unable to even open a file on this issue and consider this legislation, notwithstanding letters and submissions from members of the profession, the public and the opposition.

The Hon. M.J. Atkinson: That's rubbish. Ask Greg Howe what my position on this was.

Ms CHAPMAN: I have read all that correspondence, member for Croydon, from the then chair—

The Hon. M.J. Atkinson: You just make it up as you go along.

The SPEAKER: Order!

Ms CHAPMAN: —of the Family Law Committee. Notwithstanding these submissions, desperate attempts to try and bring South Australia into line so that the people in South Australia who cohabited for a period of time on a domestic basis would enjoy some of the same protections and privileges of others. But no, the former attorney-general—

The Hon. M.J. Atkinson: Why didn't you move it as a private members' bill?

Ms CHAPMAN: I am getting to it.

The SPEAKER: Order!

Ms CHAPMAN: Ultimately, of course, that is exactly what happened. I do not know where the member for Croydon has been and why he is now interjecting, because notwithstanding all of these pleas from the profession, the public and the opposition, the attorney-general of the day refused to consider this matter at all. That is the first tranche of what happened. Then, as I indicated, the opposition, via our leader, the member for Heysen, introduced a private members' bill to bring this matter to a head, because there was a compelling need for it. A very strong argument was presented but it fell on the completely deaf ears of the former attorney-general.

This is a man who had constantly made announcements about how he wanted to be the first in the nation, the best in the nation, the noisiest in the nation, whatever, and presented his profile as being the attorney-general supreme. Nevertheless, on this issue he had his hands over his ears, his head in the sand, and he refused to deal with it. So, having received submissions, including from Mr Greg Howe—

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order, the member for Croydon!

Ms CHAPMAN: —who is not only a personal friend but a colleague in the law for many years, and who presented correspondence to me expressing his concern, as had other members of the profession—

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: You will have an opportunity to speak, member for Croydon. Mr David Burrell sent in a long submission, and I think copies of that went to the attorney-general. There were submissions from those who were concerned that South Australian citizens were continuing to miss out on the opportunity to be protected and to preserve the rights that they were completely alienated from as a result of the attorney-general's utter refusal to deal with this matter.

The private members' bill having been introduced, it placed the then attorney in a position where he had little option but to finally concede that it should be put through. After failing as the attorney-general of the day, with all of the resources of the Attorney-General's Department and the pleas from the community to deal with this matter, he was ultimately embarrassed into its acceptance.

Fortunately, many of his colleagues could see the light and this was a bill on which there was no division. There was support for this bill by all of those here in the parliament and, I suggest, begrudgingly by the member for Croydon. In any event, if he were genuine—as he now protests that in some way he was participatory in a voluntary and willing basis to join in this transfer of power—one would have thought that, while he was still the attorney-general, he would have activated a bill to attend to the consequential matters.

In 2009, the legislation passes, we went to the election in March 2010, and the introduction of the commonwealth powers became effective from 1 July 2010. So, for 10 months people who would be eligible in the categories of this matter would not be in a position to have that protection and enjoy the privileges that came with that legislation. Why? Because the attorney-general sat on his hands up until his demise after the election in March 2010. He sat on his hands month after month and failed to deal with this matter, and yet he could have. I think the member for Croydon speaks with forked tongue when it comes to his protests about being effusively supportive of the member for Heysen's private member's bill, because he had every opportunity to demonstrate that commitment—

Mrs Redmond: Because he's changed his mind about living in sin.

Ms CHAPMAN: Of course; that's another matter. In any event, he had that opportunity, and he has demonstrated by his failure to do that that, in fact, he was very resistant to this. He had seven years leading up to this to actually deal with it and he failed to do so. I will now briefly address the bill for the purposes of identifying the problem in the former attorney-general not dealing with this matter, and why we are here 10 months after with arising problems.

The acts that need to be consequently amended as a result of the Commonwealth Powers (De Facto Relationships) Act 2009 include, firstly, the Criminal Assets Confiscation Act 2005 and these amendments clarify what property is to be considered in the context of the proceeds of crime for the purposes of confiscation. For example, property that is ruled out of the scope of this bill includes property of former de facto couples that has been distributed between them at least six years previously under the Family Law Act 1975.

This is an important area of the law. It has been one which has been significantly enhanced—that is, the criminal asset confiscation powers—and, so, the potential for this to overlap and remove from the cake available for division between de facto couples increases and, therefore, it is important that it be looked at. We do not know in respect of that legislation whether any de facto couples will have been caught in that category. We do not know of any attempt by the government to identify whether any couples would have been.

This is perhaps one area where there is more capacity to do that, because there is no registration of de facto couples who enter into these agreements. However, there is identification of whether assets have been confiscated under this act and, if they were confiscated against a person who had been in a de facto relationship, then there is a possibility, at least, of that being identified for the purposes of being able to revisit that issue if it were to have unfairly impinged on the available distribution of assets for that de facto couple.

The second area is in the Family Relationships Act 1975 to include in the criteria to be applied by a court in deciding whether a relationship of domestic partners existed between two people at a given time and whether the couple had made an agreement under the Family Law Act 1975. I do not think that it is likely that there was any exclusion of an opportunity during the lapse of 10 months that could be detrimental. I say that because I do not think in this instance there is any possible way of knowing whether a party had been excluded from access to that jurisdiction prior to that. It would be disappointing if that occurred but the government is probably not, in any capacity, able to hope to identify that.

The third area is under the Stamp Duties Act 1923. The Stamp Duties Act, particularly section 71(c)(a), makes provision already for certain agreements and instruments that relate to property that has been divided up between a married couple or a de facto couple to be exempt from stamp duty. The principle is that, if there is a necessary transaction to effect an agreement at the demise of a relationship, the government should not be able to line up for a second chop of the cherry.

We actually already have another provision under the Stamp Duties Act which enables the transfer of some interest in real estate (for example, between married couples in consideration for love and affection), where there can be a transfer without there being ad valorem stamp duty on it. This is very specific and follows the principle that the government has already had its hand out at the time that the, say, husband and wife acquired the piece of property: it has received its stamp duty and should not, on the dissolution of that relationship, have its hand out again for duty on the other half (if it is a half interest—one undivided moiety, for example—in a title) and recover revenue in those circumstances. That is a matter of public policy, it is a good policy and it is a matter which, under the legislation we are about to pass today, will ensure that amendments to the Stamp Duties Act would be effective for couples in this situation.

The bill also goes a little step further in asking that the exemption be retrospective to 1 July 2010—as it should be. Of course, we are only here and having to deal with this retrospectively because, as I have said, the former attorney-general failed to deal with this matter prior to the effecting of the act at the commonwealth level, although I am never one to rush into supporting retrospective legislation. It was necessary to do so to ensure there is no disadvantage to any individual on this matter.

When it came to identifying how many parties to agreements may have been required to pay stamp duty, I got some rather interesting responses at the briefing. I think we started by expecting that there would be some, and there was an estimate. On inquiry as to how many cases there would be, the answer was that no-one knew. The initial estimate of $1 million that might need to be repaid from Treasury back to parties was purely a figure that seems to have been plucked out of the air.

No-one has any idea how many cases this applies to or how they are going to be identified. Of course, if couples in this situation would have been eligible if this legislation had been passed, they would have tendered with their application for exemption of stamp duty a copy of the deed and there would be some record of the stamping being at zero, or the application having been granted or rejected pursuant to section 71CA.

The problem here is that, in the absence of this legislation, couples in those circumstances would not have been able to present their agreement to get exemption because they would not have been able to have it. So what would be the point in presenting it on the basis that the act did not provide for any exemption for them? How do we know? Is the registrar of stamp duty going to go through and check out all the names of parties that might have shown the same address on the documents, or might have owned a property jointly, or may have had the same surname? How on earth is the registrar going to identify, for the purposes of providing a refund, those who should have been eligible had this been dealt with over 10 months ago?

I think that that is something the member for Croydon should reflect on, because there is no easy answer to that. It may be that there will be some little notice in the paper, a story, to say that anybody who has entered into agreements from 1 July 2010 to date may be eligible for a refund and you may wish to inquire at the Attorney-General's office, which will promptly ensure that assistance is given to support a refund. I do not know how it is going to happen, but it seems to me that we did not even need to have this if the Attorney-General's predecessor had actually dealt with this matter, at least in a timely, let alone expeditious, manner.

It lists the criteria when they are domestic partners, but on our own inquiry we have covered that issue. With those comments, I wish the swift passage of the bill in the parliament now that the new age of Rau is with us and we have things being dealt with a little more expeditiously, rather than the dinosaur era.

Mrs REDMOND (Heysen—Leader of the Opposition) (12:32): I thought I would take a couple of minutes to come down and make a very brief contribution on this bill. As the member for Bragg pointed out, it was a matter I had been pursuing in my role as shadow attorney-general prior to becoming the leader, and it was a matter that was consistently thwarted by the now member of Croydon, former attorney-general, for no apparent reason other than his own strange ways of looking at the world, which may have changed—he may have had some blinding road to Damascus moment and suddenly changed his mind. The only thing I could think of was that the former attorney-general did not wish to give de facto relationships the recognition that the rest of the country seemed quite content to give them and allow people in de facto relationships to have the benefit of the Family Court jurisdiction in dividing their property.

I was aware, through a number of sources, particularly those practitioners specialising in family law, that it was a matter of considerable angst for them, simply because the costs that were imposed on de facto couples were so excessive compared with what those couples would otherwise have had to pay if they had had the benefit of this legislation somewhat sooner than has transpired in this place. The member for Bragg has already pointed out of course that other states had already fallen into line, although she did mention the quirkiness of both Western Australia and Queensland, I think, in her comments.

I would have to say that the former attorney-general is well known throughout the country for his quirkiness—amongst lawyers around the country and among politicians around the country. They certainly miss the quirkiness of the former attorney because his bizarre behaviour and bizarre attitudes on a number of things left them quite bewildered for most of the time he was attorney-general.

That said, I could reflect on the fact that that attorney-general, before he got into government, made numerous statements about how Barton Terrace West would be one of his major things to attend to. As soon as he was in government it was going to be the very first thing he did, I think, but obviously, 9½ years later, he still has not done anything about Barton Terrace West and, indeed, I doubt that he ever will do anything about Barton Terrace West.

However, that still does not explain what it was about the particular legislation that we tried to bring through from opposition to correct this anomaly in our legal system; what it was about this legislation that the previous attorney-general found so abhorrent that he would not allow it to go through. I am simply pleased that, finally, South Australia will fall into line and allow de facto couples this benefit, which, as I say, was something which was extremely costly for them and something which I believe should have been addressed sometime ago.

I look forward to the member for Croydon's contribution on this bill, because no doubt he has got some important things to say from the backbench about it. No doubt it is now government policy, so, obviously, the member for Croydon has had some sort of an epiphany that has persuaded him as to the entitlements of de facto couples to be treated as others.

I do not know what might have brought about that change in his view of what should constitute a marriage and what should constitute something that is recognised by the law, but I do at least welcome the fact that the Labor Party has at last come into line with what the rest of the country has been saying for a long time. I welcome this bill, and I wish it a speedy passage through the house.

The Hon. M.J. ATKINSON (Croydon) (12:43): The member for Heysen could have worked well in the history department of the Communist Party of the Soviet Union such is her falsification of the historical record. What you would not know, Madam Speaker, if you were listening to the contributions of the member for Bragg and the member for Heysen, is that the member for Heysen moved a bill to refer constitutional power over the property details of de facto relationships such that it would be taken out of the South Australian District Court and adjudicated in the Family Court, which, of course, is a Federal Court.

The member for Heysen put forward a private member's bill. A friend of mine was at table with Greg Howe, who is a family lawyer and who advises the Law Society on family law matters, and he said, 'People tell me that the Attorney-General'—then me—'has a strong moral objection and personal objection to this power being referred from the state to the commonwealth.' My friend was able to say to Mr Howe, 'Well, that's not right. Mick has no objection to that, and I'll tee up a meeting.' So, she did, and that is the first time I met Greg Howe.

During my period as attorney-general (eight years) I had a record of supporting private members' bills, that is, supporting private members' bills from members of the opposition and members of minor parties, or, indeed, Independents. My predecessor, Trevor Griffin, absolutely refused to support any bill other than a government bill in his portfolio.

Indeed, on some occasions what he would do is that, if political circumstances had forced him to support the principle of a private member's bill, he would introduce a government duplicate bill, vote down the private member's bill—or discharge it from the Notice Paper—and put through the government bill.

So, it was an entirely fresh approach when I became attorney-general for the government to be supporting private members' bills. Indeed, I found it sometimes convenient to avoid the necessity to take up government time with matters that I thought required a legislative amendment to use private members' time to get that principle through using the device of a private member's bill. As the member for Fisher will tell you, I supported his private member's bill on hoon driving. I also supported the Hon. Ann Bressington's bill to ban the bong. The bill originated in another place. Indeed, if I recall correctly, the Cheech and Chong of the parliament, the member for Heysen and the former member for Mitchell, attempted to amend that private member's bill so that it would be of no effect. They were not successful.

It turned out that I supported the member for Heysen's private member's bill to refer power to the commonwealth, but just remember the history of this. This government, the Rann government, wanted to refer constitutional power over the property settlement of de facto couples to the commonwealth. We wanted to refer the property matters of both opposite sex and same-sex couples, but the Howard government would not accept a reference that included same-sex couples. That is why the referral could not be made. That is the fact of the matter.

The members for Bragg and Heysen, these new converts to gay rights, are now trying to claim that it was me who was stopping that reference of property settlement matters all the time. The record shows the opposite. I supported the member for Heysen's private member's bill. Crikey Moses, here is an attorney-general who is happy to support a private member's bill by the leader of the Liberal Party, and now I am being condemned—

Ms Chapman: Caught out.

The Hon. M.J. ATKINSON: 'Caught out,' the member for Bragg says; caught out for agreeing with her leader. Well, shame on me! And the criticism is: why didn't I do it before she introduced it? An amazing critique by the member for Bragg. It is a happy conjunction of circumstances that the member for Heysen's private member's bill was supported by me.

As I recall it—forgive me if I do not get all of the details—it became law, and now we have found there are some consequential amendments necessary on this and we are debating that. Well, fine, terrific, but it was not down to me that the principle was not enshrined in legislation earlier. All of this is for the Liberals to cover up their own division on same-sex rights.

We in the Labor Party have differences about same-sex marriage, but we do not have differences about same-sex rights in their capacity as de facto couples. However, the Liberal Party did have deep divisions about the rights of same-sex couples. Does the member for Bragg recall the lion of Hartley, Joe Scalzi, and the position he took? She shakes her head. Perhaps she knows not the man. Anyway, there were great divisions in the Liberal Party about the rights of same-sex couples.

Indeed, in order to accommodate that section of the Liberal Party and Family First and bring them on board, I had, as attorney-general, to agree to same-sex legislation that made no reference to sexual activity. 'No sex please, we're South Australian.' That was the principle we had to embrace in order to get sections of the Liberal Party on board to get the same-sex legislation—

Ms Chapman interjecting:

The Hon. M.J. ATKINSON: The domestic co-dependents—exactly! So, all the criteria had to make no reference to sex in order to keep sections of the Liberal Party happy. I can recall one late afternoon here on a Thursday. We were trying to get the bill through before a recess. The now Leader of the Opposition was in the chair as the Liberal spokesperson on the Attorney-General's portfolio. I was doing my job as the attorney-general. Normally, the two of us would be alone in the chamber together for hours on end, but on this occasion we had quite an audience because of the controversial—perhaps they were just chaperoning us. I reminded the member for Heysen on that occasion of the divisions in the Liberal party about same-sex rights, and that the 'lion of Hartley' and others had necessitated this compromise that we were now trying to get through the parliament.

Well, the member for Heysen—the lady who tells talkback radio that she never swears—she lost her rag, and she shouted out to the chamber, 'We're going to be here all night because of that dick over there!', pointing to me. Fortunately—

Ms Chapman: That'd be right.

The Hon. M.J. ATKINSON: The member for Bragg says, 'That'd be right.' Exactly. That's what she said, but fortunately her colleagues calmed her down, and we got the legislation on same-sex equality through. That is the authentic and true history of this topic.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (12:46): Where should I begin? I know roughly when I expect to end, but anyway—

Ms Chapman: We're doing this next.

The Hon. J.R. RAU: Are we? Oh, that relieves me somewhat. In that happy event, can I say that I have enjoyed all of the contributions. I thought, however, the member for Bragg (atypically today) was a little unfair on the member for Croydon. I thought it was only reasonable that the member for Croydon have the opportunity to set the record straight, which I thought he did, as far as I was concerned, completely convincingly. I am only distressed that the member for Heysen did not have the opportunity to hear all of it herself because, had she had that opportunity, I am sure she would have been much—

An honourable member: Uplifted?

The Hon. J.R. RAU: 'Uplifted' is not the word I had in mind. It was more like 'shamed', shamed, after having been so unkind to the honourable member in relation to his work in this important area. The one matter I would raise is that, for the member for Bragg and the member for Heysen to be overly critical of the member for Croydon on the basis that a bill, which was in fact the member for Heysen's bill, did not contain things that it should have contained at the relevant time, is a little bit odd. As generous as the member for Croydon was in allowing the member for Heysen to move, as a private member, this piece of legislation, it did not actually encumber him with the responsibility for making sure it contained all relevant provisions; which it clearly did not, which is why we are here today. And so—

The Hon. M.J. Atkinson: Voice of reason.

Ms Chapman interjecting:

The Hon. J.R. RAU: But I think it is good that this has been sorted out. It is a—

Ms Chapman interjecting:

The Hon. J.R. RAU: I am sorry, honourable member for Bragg, I had not got to the important bit, which was the questions that the honourable member asked. I am advised as follows. RevenueSA will attempt to contact people in the following ways. First of all, they will send out an information circular, and place on their website, and contact their subscribers, to the effect that this change has occurred. I think probably more significantly, from the point of view of contacting the correct people, there will be sent out what is called a RevNet (which I assume means 'Revenue Net') Alert, which goes to conveyancers and solicitors. I would expect that, inasmuch as we can try to communicate with the people who might be affected by these changes, that would appear to be the best way to do it, and I am advised that that is the intention of RevenueSA. If that satisfies the honourable member, then I think that covers all the matters.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (12:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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