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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Relationships Register Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 November 2016.)

Ms HILDYARD (Reynell) (11:06): I commenced my closing remarks last time in relation to this bill. As I did on the first occasion, I want to place on record my sincere thanks to everybody who spoke in the debate, particularly on the day Marco was in Australia. I thank those who took the time to speak with him and who have taken the time to speak with other community members who have found themselves in similar difficult circumstances, to offer their condolences and their support. Thank you very much to all my parliamentary colleagues who have spoken on this debate and who have reached out to various community members in different ways. It is very much appreciated, and it very much demonstrates the compassion in this place.

In closing the debate, I make mention of another person in our community who has been subject to inequality in our laws, Mr Andrew Birtwistle-Smith, who emailed me earlier this week following my meeting him at a community forum. His words in that email follow—

Ms CHAPMAN: Point of order: I make the point that the closing address is not proposed to introduce new information.

The DEPUTY SPEAKER: That is true, and we will listen very carefully. It would not be the first time people have taken advantage of it, though.

Ms CHAPMAN: Because the Speaker has actually said since then, I have had—

The DEPUTY SPEAKER: Okay, we are listening now and we take your point.

Ms CHAPMAN: I indicate that I want to go into committee to raise some extra matters—not in a confrontational or dispute way—that, in my view, should be dealt with in committee.

The DEPUTY SPEAKER: As I said, we will listen to her remarks, and we will draw her to that point of order and, as I said, it would not be the first time someone has done that.

Ms HILDYARD: Thank you, Madam Deputy Speaker, and thank you to the member for Bragg. I will be very brief in these comments. I do not intend to introduce any additional information but, rather, provide some more context to support what I spoke about in my opening remarks and in the second reading debate. To quote Andrew Birtwistle-Smith:

I have a similar story to Marco around death certificates. My husband of 11 years, partner of 14 years—were legally married…back in 2004 passed suddenly and unexpectedly last August. I am still grieving heavily and most of the time cannot talk about my situation without getting upset.

Luckily, I was in a position to organise and endorse everything around my husband's death. I did not invite his family to advise on his funeral and associated business, etc. I took control and ran with it, no-one challenged me on my authority and everyone was very respectful.

However, I was forced to have on his death certificate either never married or marriage unknown. I had to make this decision at the funeral home a few days after being told my husband was dead. Do you really understand the pain and grief that causes? You feel like you are a nothing, you are torn apart, you feel humiliated, you feel powerless.

The choice I made was to say marriage unknown. To me, it was the less hurtful of the two. I also had to explain that to our three children, that whilst they could be recognised, I am a nobody when it comes to the current government and our formal commitment of love and loyalty through a marriage certificate is just ink on a paper.

The bill we pass today will ensure that Andrew and Marco and so many other couples will not experience the humiliation of being told that their relationship did not exist. This bill is for David and Christopher, and for all the other spouses who have not been recognised in the past but who we will ensure are recognised in the future.

Thank you very much again to the supporters of this bill. Thank you to my staff Rhiannon Newman and Jonathon Louth, to all my colleagues, to Lachlan Cibich and others from the DPC for their tireless work and, most importantly, to the community and advocates who have worked so hard to get us to this point. This is one step further on our journey to full equality.

Bill read a second time.

Ms HILDYARD (Reynell) (11:12): I move:

That it be an instruction to the committee of the whole house on the bill that it have power to divide the bill into two bills, one bill to be referred to as the Statutes Amendment (Surrogacy Eligibility) Bill comprising schedule 1, part 2, clause 2; schedule 1, part 5, clause 5(4); and schedule 1, part 6, clauses 21 to 27 inclusive, and that the second bill to be referred to as the Relationships Register (No. 1) Bill comprising the balance of the bill, and that it be an instruction to the committee of the whole house on the Statutes Amendment (Surrogacy Eligibility) Bill that it have power to insert the words of enactment.

Motion carried.

Ms CHAPMAN: For clarification, I seek a copy of the two bills in their new form to be tabled.

The DEPUTY SPEAKER: I am advised it is impossible to give you that at the moment. I can give you a copy of the motion; we will get copies for members straightaway.

Ms CHAPMAN: Before we go into committee, we are going to be going into committee now for the third reading on the basis of the two split bills. Can we have an indication of which one is going to be dealt with first?

The DEPUTY SPEAKER: We will deal with the bills separately, and I will go through that with you as we are going. Then we will come out of committee and go back into committee. We have very good instructions and we will go through that with you. I know you will rise at any time you are not sure about what is going on, and we will look at that.

Committee Stage

In committee.

Ms HILDYARD: I move:

That it be an instruction to the committee of the whole house on the bill that it have power to divide the bill into two bills, one bill to be referred to as the Statutes Amendment (Surrogacy Eligibility) Bill comprising schedule 1, part 2, clause 2; schedule 1, part 5, clause 5(4); and schedule 1, part 6, clauses 21 to 27 inclusive, and the second bill to be referred to as the Relationships Register (No. 1) Bill comprising the balance of the bill, and that it be an instruction to the committee of the whole house on the Statutes Amendment (Surrogacy Eligibility) Bill that it have power to insert the words of enactment.

Motion carried.

Clause 1.

The CHAIR: It is my intention, therefore, to deal first with the Relationships Register (No. 1) Bill and look at clause 1, which was part of the original bill, the Relationships Register Bill.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Ms CHAPMAN: On eligibility for registration, I will clarify, for the purposes of the record, now that we have split the bills: essentially the part we have excised and are putting into the surrogacy eligibility bill is part 2, which amends the assisted reproductive treatment division; part 5, which amends the Equal Opportunity Act—

Ms Hildyard: No.

The CHAIR: Schedule 1, part 2, clause 2; schedule 1, part 5, clause 5(4); and schedule 1, part 6, clauses 21 to 27.

Ms CHAPMAN: Can I just clarify this: I have schedule 1, part 5, clause 5(4)?

The CHAIR: Yes, but that is after part 2, clause 2.

Ms CHAPMAN: I cannot find that in my bill.

The CHAIR: Page 13, I am advised. Part 2, clause 2 is at the top of page 13 of the original bill.

Ms CHAPMAN: On page 13, we have part 4, Domestic Partners Property Act.

The CHAIR: That is clause 5. Let's go to the top of page 13, part 2, clause 2.

Ms CHAPMAN: Yes. I have that, part 2, clause 2.

The CHAIR: Let me turn the page and look for part 5, clause 5(4), which starts at about line 22 on page 14. Is that is out?

Ms CHAPMAN: Yes.

The CHAIR: Then we are moving to part 6 on page 17 and removing clauses 21 to 27, from about line 25 on page 17 to halfway up page 22, just before part 7. Is that helpful?

Ms CHAPMAN: Yes.

The CHAIR: That is it then. Those parts are removed and now become the Relationships Register (No. 1) Bill for later on. Before we continue, is everybody aware of what we are talking about? Deputy leader, you have a question on clause 5.

Ms CHAPMAN: On clause 5, could the mover of the bill identify whether there is any penalty for registering a relationship, other than for signing a false declaration, which is later referred to in clause 22, giving a $10,000 fine or imprisonment for two years?

Ms HILDYARD: I am sorry, can you please repeat the question?

Ms CHAPMAN: Clause 5 sets out the eligibility for registration. Subclause (3) provides that a relationship cannot be registered in, obviously, the disqualifying circumstances. My question is: what is the penalty for registering of a relationship, by either the applicant or the receiver for that matter, other than the provisions of signing a false certificate in clause 22, which provides for a $10,000 fine or imprisonment for two years?

Ms HILDYARD: If I have heard your question correctly, there are provisions, as you know, for penalties in relation to false or misleading statements. But, no, there is not another penalty, other than that the registrar cannot actually register that relationship.

Ms CHAPMAN: The question then is: is there any penalty to the registrar for doing that? Is he caught by knowingly signing a false declaration? On the face of it, he would not. He or she is not required to actually sign a declaration that they have witnessed evidence of a divorce certificate being produced for someone who had formerly married, etc. Yet, when people marry, there are certain obligations on the marriage celebrant to do certain things, sight certain documents, send in their form of notice of intent to marry, etc., and there are penalties if the marriage celebrant does not do that.

In this case, we are bypassing a ceremony to the extent of a commitment of a relationship, and we are really putting the onus on the registrar or his or her staff. Whilst I completely understand the importance of having false declaration penalties for applicants who purport to try to get around the excluding circumstances, there does not appear to be any provision here for an obligation on the registrar or his or her staff to comply with this provision.

Ms HILDYARD: First of all, at part 5 there is a requirement for anybody who is registering a relationship to sign a statutory declaration about their particulars. In relation to the registrar and any penalties for them, there are no specific penalties, but clause 16 sets out that the registrar has a power of inquiry should they have any issues with a particular declaration. It is of course incumbent upon them to inquire should there be any doubt about any aspect of the declaration or the application from those seeking to register the relationship but, no, there is not a penalty.

Ms CHAPMAN: One of the reasons I ask this is that clause 8 requires:

The Registrar must register a relationship as soon as practicable after the end of the cooling-off period…

Whilst they have a discretionary power to conduct an inquiry in clause 16 that you have referred to, they do not have to do that. At this stage, there are no regulations or guidelines that we know on how that is going to operate. I do not think that it is sufficiently concerning to make the bill fail, and I have indicated that I will support it, but I make the point that it seems to me there must be some process of how this is to operate. Even with the Coroner, we give them very clear guidelines in the act and then in their regulations on how they conduct their inquiry and what options they have.

Whilst there is some discretion there, we do not want to make this overly complicated. I make the point that clause 8 says to the registrar that he or she must do this and, unless they thought there was something a bit dodgy with an application and had determined that they would conduct an inquiry, and then they have the power to do that, they do not have any choice: they have to register it. There needs to be some clear guidelines in the regulatory arrangement to make sure that that is potentially not abused or, as one can look at it from the other side, ensure that it is sufficiently robust to ensure that there is no negligence or failure to adequately inquire.

Ms HILDYARD: I do take your point. Obviously, there is that requirement to make a statutory declaration, which would of course hold some weight with the registrar. However, I take your point about perhaps exploring regulations to that effect.

Clause passed.

Clause 6.

Mr KNOLL: Member for Reynell, do you have any understanding of the application cost that can be associated with making an application under the register?

Ms HILDYARD: We have inquired about that question because I know you raised it in a briefing. Our understanding is that it would be the registrar's intention to make it consistent with the application fee for a marriage.

Mr KNOLL: I think I know the answer to this question, but I want to flesh it out. Is there any understanding of a minimum time period that people need to be together before they can register a relationship?

Ms HILDYARD: No.

Mr KNOLL: Given that there are cooling-off periods on both sides—going in and going out—is there a restriction on how many times people can make an application to be on the register?

Ms HILDYARD: Just as in the case of a marriage, there is no time period you have to wait, nor is there any limit on the number of marriages you can have. The only limitations are in terms of that notice period, which is consistent with the notice period required for a marriage.

Clause passed.

Clauses 7 to 9 passed.

Clause 10.

Mr KNOLL: Referring to the same line—and I think it could be the same answer—I assume that when it comes to the fee prescribed by the regulations we are again looking at the same fee.

Ms HILDYARD: Yes. We have inquired about that and there is an intention for the registrar to make it consistent with other procedures.

Mr KNOLL: Following on from that, does the current fee structure cover the cost of processing an application?

Ms HILDYARD: I will seek advice to clarify that. My understanding is that, in relation to any of the fees incurred for any business with the births, deaths and marriages registrar, processing fees are contemplated in setting that fee, but we will check for you.

Ms CHAPMAN: The registration fee for a marriage or, indeed, a dissolution of marriage is quite a simple process. Under other laws, the document essentially speaks for itself and is ultimately the valid evidence in court, unless evidence is produced to the contrary. It is quite a simple process for someone at the births, deaths and marriages office to receive a marriage certificate, record it, file it and, obviously, comply with all the records act obligations—as simple as it is with the dissolution of marriage document. The difference is going to be where any inquiry is conducted under the powers of clause 16.

There may be a more extensive inquiry to assess whether the cooling-off period notices have been given and all the matters that go with that, which is quite different. It may be that the Registrar of Births, Deaths and Marriages can have a simple registration process where there is no inquiry. Where there is an inquiry, there is no provision under clause 16. Again, there may need to be a staggered and structured costs allocation or the capacity to charge fees to deal with any mischief or, indeed, negligence on the part of an applicant, as distinct from bureaucracy on the other part. I think it can be cured by the regulations, but it needs to be looked at.

Ms HILDYARD: Yes, and again that is a very valid point and something we can convey to the registrar, so thank you.

Clause passed.

Clauses 11 to 14 passed.

Clause 15.

Mr KNOLL: We create a relationships register, someone makes an application and the application is approved. I assume that they get a bit of paper saying that X is in a relationship with Y, and they get a bit of paper. I understand from other clauses that you will also be able to get a bit of paper that, on a death certificate, somebody is recognised as that. Are there any rights conferred, as part of this bill, by that piece of paper?

Ms HILDYARD: I think we might have touched on that in the briefing that you came along to. Having registered relationship status would give you the same rights as domestic partner status. If you need me to summarise them, I can, but it would give those same rights.

Mr KNOLL: To follow on from that, is there a need to review the statutes in order to understand more specifically what rights are conferred, or is there somewhere else that more neatly summarises what domestic partner status confers upon people?

Ms HILDYARD: Across a number of pieces of legislation the status of domestic partner, and the legal rights that that confers, is articulated. The statutes amendment committee is currently reviewing all those pieces of legislation where domestic partner status is referred to. Certainly, that is something that I anticipate would occur in the way that you have described over coming months, next year, etc.

Mr KNOLL: Are same-sex couples afforded domestic partnership status currently?

Ms HILDYARD: To answer that question I will go back to one of your previous questions. It is only if they satisfy the requirements under the Family Relationships Act, and there are particular requirements in there around cohabitation for three years, etc. I want to go back to my answer to your previous question to make it clear that we are drafting statutes amendment legislation to review all those places where domestic partner is referred to. I think I mentioned a committee, but we are actually drafting that legislation, not a committee.

Ms CHAPMAN: Can I clarify this. Whilst there might be some tidy-up legislation, this new bill in its relationships section already makes provision, on page 13, for changes to the Domestic Partners Property Act 1996, which I am sure the assisting minister would already appreciate. Once we have a registration process, domestic partners who have cohabitated for less than three years will automatically qualify for the opportunity to pursue claims under that act once their relationship has been registered. They do not even have to live together, once we have passed the relationship act; they can live in separate houses. They can commit to a relationship, having known each other for a fairly short time, obviously—

Ms Hildyard: Just like a marriage.

Ms CHAPMAN: Just like that, exactly—although, of course, you have to have compulsory counselling when you want to get out of a marriage. In any event, we are doing that, and in this bill we are also making amendments to the Wills Act—which I want to come to shortly—to cover that scenario because that will introduce a lot of issues. If the Attorney-General, and your government, ever gets his act together and introduces the Inheritance (Family Provision) Act reforms and the Wills Act (I think they sit around and do nothing in that office some of the time), clearly we will need to deal with a lot of that. This will add some extra provision in the bill in recognition of the status.

Again, I do not take issue with that, but there will be substantial reform in those two provisions: the right to be able to access under a will, and in fact make wills, in contemplation of recognising a relationship and, of course, the right to seek a share in a domestic partner's property, when they are living together for less than three years or have not had a child together, which is currently required to get access to that. If there are a whole lot of other smaller tidy-up acts that need to be amended in contemplation of the recognition—and we have done those tidy-up pieces in the past—then we should have a list of those provided to the parliament before this is debated in the other place.

Ms HILDYARD: To clarify, the statutes amendment that is being drafted is absolutely just to give effect and to make consequential amendments relating to the introduction of this relationships registration bill. There are certainly no policy changes that are contemplated in the statutes amendment legislation that I refer to. I presume that we will come back to the question about wills later in this discussion.

Mr KNOLL: I want to seek some clarification. Currently, federally, people can become de facto couples based on a certain number of criteria being met. I assume it is living together for two years or having a child?

Ms Chapman: Three years.

Mr KNOLL: Certainly, but under federal de facto relationships it is two years? There is no such thing?

Ms Hildyard: State law under the Family Relationships Act.

Mr KNOLL: What I am trying to get at is that nothing we are doing here in any way affects federal law when it comes to de facto relationships and how property—

Ms HILDYARD: We understand, via the Attorney-General's office, that the commonwealth Acts Interpretation Act already contemplates relationship registers that are set up in other jurisdictions. Of course, should this bill be passed, we will talk again to the Attorney-General's office about contemplating our South Australian relationships register in that Acts Interpretation Act.

Clause passed.

Clause 16.

Mr KNOLL: In relation to powers of inquiry, obviously we are seeking here to register overseas relationships and asking the registrar to be the one who investigates whether or not the relationship should be registered under this bill. What resource, what power, practically, will the registrar have to properly investigate overseas relationships?

Ms HILDYARD: Thank you, member for Schubert, for that question. This bill will give the ability to the registrar to recognise overseas marriages, not to register them, but to recognise overseas marriages. They do have the power to request the marriage certificate either via the couple themselves or via similar authorities in the corresponding jurisdictions.

Mr KNOLL: I understand we will get to clause 27 and have a discussion about what relationships we are seeking to register, but if we go back to clause 5 where it talks about reasons why people cannot have their relationship registered, including being related and being a descendant and those types of things, there is no other power of inquiry for the registrar to be able to look into those matters overseas. Are there instances where countries have a much more loose definition of marriage, for instance, where potentially it could be legal over there, they come over here and we do not have the power to inquire?

Ms HILDYARD: What clause 5 also sets up is that the Registrar of Births, Deaths and Marriages will have, via regulation, much more detail about what is appropriate or not and which other jurisdictions are appropriate or not. That will be dealt with via regulation.

Ms CHAPMAN: To clarify, the deficiency of that is that, whilst an applicant might be required to give extra information or comply with the directions of the registrar as anticipated, he or she will face the consequence that they may not have their relationship registered. There is a direct penalty for not complying with that. Again, this introduces a power of inquiry where the registrar can give a notice to anybody they think has information that would help in that regard, and if that person, under subclause (3), does not comply, it is a $1,250 fine.

I make the point that I am not anticipating that this would be abused by the registrar, but it seems to me that the regulations need to be clear about what is going to happen. The other issue is that, as you would expect, this is not going to have any capacity to be enforced overseas where the information may be stored in some way, namely, the register on another country's records. Whilst countries with whom we have good working and trading relations, in an enforcement of law capacity, may be quite happy to cooperate, that may be difficult to enforce.

The drafting of this does lead to the obligation of the applicant, in the preceding clauses, to have to provide certain information to get over the line. He or she is going to have to obtain the certificate from the British register, or whatever, to enable this to move forward. Again, I see that as a bit draconian. When I come to questions on clause 22, I will be asking you for a comparison of why the fines should be so high, including a two-year imprisonment.

Ms HILDYARD: I take your points, and I think they are very valid points. As a matter of interest, the power of inquiry that this particular piece of legislation sets up is absolutely consistent with the power of inquiry set out in relation to marriages, and the registration of other events, with the Registrar of Births, Deaths and Marriages.

Clause passed.

Clauses 17 to 21 passed.

Clause 22.

Ms CHAPMAN: Here is the penalty: $10,000 or imprisonment for two years as a maximum. Can there be some indication as to whether that is currently consistent with the laws in respect of signing false declarations generally?

Ms HILDYARD: Yes, absolutely. All the penalties that are set out in this particular bill are absolutely consistent with the penalties in other parts of the Births, Deaths and Marriages Act.

Clause passed.

Clauses 23 to 26 passed.

Clause 27.

Mr KNOLL: Member for Reynell, clause 27(1) essentially provides if it is not a marriage under the Marriage Act, then something can be registered under this part. Obviously, there are types of marriages which culturally we would accept and some which I think we would not. For instance, gay marriage is legal overseas in various places, but also a polygamous marriage is something that is allowed overseas in various places. I am not 100 per cent up on where the age of consent for marriage is, but certainly there could be some marriages registered overseas that we would consider not necessarily legal here. What mechanism is there by which we are going to ensure that we allow the marriages we want to allow but not allow the marriages we do not want to allow?

Ms HILDYARD: I think I might have already answered that question. It is determined through regulation, as I spoke about in relation to clause 5, but also anything that we deem to be a corresponding law is what we contemplate in the meaning of the Marriage Act. We are not going to go beyond anything that is not contemplated in our Marriage Act, if that makes sense.

Mr KNOLL: Sorry, that does not make sense. I am probably speaking on behalf of a number of members who have concerns, but in enacting this piece of legislation how can this parliament be assured that we are not going to be creating a path by which polygamous relationships can be registered?

Ms HILDYARD: Two points there, and I do not think my previous answer quite answered your question. First of all, in relation to those marriages that we would see as inappropriate, provisions are also set out in the Criminal Law Consolidation Act. Also, clause 26 that we have just dealt with contemplates the type of marriages that we would recognise, but also we will deal with corresponding law in regulation as per clause 26. Does that answer your question?

Ms CHAPMAN: Can I clarify this? Let's use an example. Obviously, if you are able to marry your cousin in an overseas country but you cannot here, it is a prohibited relationship; there is an exclusion. Our marriage laws require it to be two consenting adults, so there are under-age issues also. You have prohibited relationships usually by lineage or relationship by blood, and then you have the accepted marriages in other places in the world, including polygamous marriages.

The way I read your bill, and you can clarify this if it is not right, is that the disqualifying features of the first part of the bill, namely, if you are already married, mean that you can come to Australia with six wives, legally married to them in another country. The first marriage is recognised as a valid marriage, and you cannot register marriages 2, 3, 4, 5 or 6 as a relationship under this because the applicant husband is already married to another party who we legally recognise. Isn't that the case?

Ms HILDYARD: Yes.

Mr PEDERICK: For further clarification on the question the deputy leader asked, what you are saying is that if someone overseas—and I have met someone on a parliamentary exchange—is in a polygamous arrangement they can legally register one partner but not the others, whether it is one other wife or partner or multiple wives or partners? Is that a fact, because these are commonwealth countries that we relate closely to?

Ms HILDYARD: Yes. If, in another jurisdiction, you are married to one person and you do not have any of those issues that the deputy leader described in terms of somebody being underage or related to that person, then yes, you would recognise that marriage to one person and you would not be able to register another relationship here, just as you would not be able to have another marriage here.

Mr PEDERICK: I think I know the answer, but I just want to get it absolutely straight: someone in a polygamous relationship will have the ability to register one partner but not the multiple other partners they may have?

Ms HILDYARD: I refer you to clause 26(2)(e) in relation to the particular issue you are raising.

The Hon. A. PICCOLO: Referring to clause 26 because that is the definitional part of clause 27, I want to clarify what we would actually recognise if this bill is passed. Would we recognise that relationship—whether it is a civil union or a marriage or whatever relationship it is overseas—as it exists in that nation or as it exists here?

Ms HILDYARD: If I understand your question correctly, if, for instance, in the Marco and David Bulmer-Rizzi case, where their same-sex marriage was entered into in a jurisdiction where same-sex marriage were legal, then yes, we would recognise that relationship here, should circumstances arise where we would need to. Lots of people would come and visit and never have to rely on that recognition.

The Hon. A. PICCOLO: If I could just clarify—and I will try to do this in a sensitive way—using that example, would the certificate then say that this person is married in that country or would it say that this person is married here?

Ms HILDYARD: What I am trying to distinguish here is the difference between recognition and actually providing a certificate of registration. For instance, what that case was about—and what we are trying to fix here—was actually recognising that marriage. That does not mean they had a certificate: it is recognising that marriage. Sadly, in that circumstance, it was for the purpose of the production of a death certificate, etc., and who appeared on that death certificate.

However, you can also have an acknowledgement certificate of your relationship or marriage in another jurisdiction if you wish to do so for the purposes of dealing with South Australian law. Mostly, in the case of overseas relationships or marriages, it will be about the recognition, but you can apply for an acknowledgement certificate under South Australian law should you need to do so.

The Hon. A. PICCOLO: That raises another question. Would the certificate say that the person is married or would it say that this person was married in England, Canada, the US or whatever the case may be? What is on the certificate? What would the historical document say?

Ms HILDYARD: It basically acknowledges a marriage that happened overseas. I think that is the point you are trying to get to.

The Hon. A. PICCOLO: Yes.

Ms HILDYARD: It is not going to say that they were married here or anything like that. It acknowledges that a valid marriage occurred in relation to that jurisdiction where it is valid.

The Hon. A. PICCOLO: Given that this bill is seeking to remove some discrimination and for us to acknowledge relationships in other jurisdictions, and given that there seems to be an inconsistency between an adult for the purpose of this act (which is 18 as I read it) and the age of consent here and also overseas, how do we deal with that inconsistency? People might already be married overseas because the age of consent is lower and, for cultural reasons, they get married, but we do not recognise that relationship. How do we deal with that in this bill?

Ms HILDYARD: For the purposes of this act to have that relationship recognised between two adults, 'adults' for the purposes of this act is two people 18 years or over. I take your point that there are some inconsistencies in different pieces of legislation, but for the purposes of this act it is two adults who are 18 years and over. However, the regulations do have the ability to deal with those cultural circumstances that I think you are raising as well.

The Hon. A. PICCOLO: How would the regulations deal with a situation where it appears, from my reading of clause 26(2), to basically say that 18 is the cut-off point? How would you then recognise it in some other way? Do the regulations go beyond this?

Ms HILDYARD: What we are proposing to do here is modelled on what has occurred and is already set up in the Victorian relationships register. In terms of the regulation, we intend to either identify criteria as to what should be recognised or identify jurisdictions, so one of those two things will happen in the regulations.

Ms CHAPMAN: During the second reading contribution I raised whether the government would consider listing a prescriptive list of countries—I read out those that apply in another jurisdiction in Australia. Rather than leaving it all to prescription, has the government considered that and approved that course and, if not, why not?

Ms HILDYARD: Yes, we will list jurisdictions.

Clause passed.

Clause 28.

Ms CHAPMAN: This is the commencement of four clauses to deal with amendments to the Wills Act 1936. The advisers to the assistant minister or the Premier's office provided some information to me on some questions that I have raised. I am going to read some of that, only because I want it on the record. One of the issues I have raised is to cover the intention of the amendments to this act, which is largely to allow wills to be made by a party (a person) in contemplation of a registered relationship. Currently, of course, one can make a will in anticipation of a marriage. Indeed, there are often other contract—

Ms HILDYARD: Member for Bragg, are you at clause 28 in the act or clause 28 in the schedule? I want everyone to proceed through those next clauses 28, 29, etc., in the act and then go to that part, just to keep things ordered.

Ms CHAPMAN: I thought Madam Chair had dealt with everything up to clause 27.

The CHAIR: We are looking at clause 28, which is on page 12.

Ms CHAPMAN: No, we are at cross-purposes.

Ms Hildyard interjecting:

The CHAIR: Hang on, let's just wait.

Ms CHAPMAN: I think the assistant minister is correct. I am referring to clause 28 on page 22, so I think you do need to deal with the ones before it.

The CHAIR: That is right. Do we have any further questions on clauses 28, 29, 30 or 31 of the original bill, which is page 12? Does anyone have any questions on those clauses? Is everyone listening?

The Hon. P. Caica: Yes.

Clause passed.

Clauses 29 to 31 passed.

Schedule 1.

The CHAIR: We are now going to look at schedule 1, dealing only with the parts we have not removed. We are taking out the bit on page 13, the bit on page 14 and pages 17 to the top part of page 22. The deputy leader has a question on the schedule. Which part?

Ms CHAPMAN: You will be pleased to know that I am moving straight to clause 28.

The CHAIR: Could the people on my right lower their voices.

Mr KNOLL: I have a question on schedule 1, clause 4, Domestic Partners Property Act, page 13. Subclause (2)(a) provides:

a person in a registered relationship, and includes—

(i) a person who is about to enter into a registered relationship; or

(ii) a person who has been in a registered relationship—

What is the need to have somebody who is recognised under this clause before they were in a registered relationship, and where is it contemplated that that is going to be used?

Ms HILDYARD: If I understood your question correctly, what we actually need to deal with is a particular point in time in relation to property. Hence, that is why this needs to be in this bill and why we need to amend the act.

Mr KNOLL: Why can the point of time not be once the relationship is registered?

Ms HILDYARD: I do not know if I should describe it as a prenup for domestic partners but, in relation to a marriage, you contemplate a marriage at a particular point in time. I guess it is a similar principle that we are introducing here—that you are contemplating entering into a registered relationship, given that you need to give that notice, etc.

Mr KNOLL: In terms of a marriage, you are in the relationship before you are in the marriage. My question is: are you still a domestic partner if you register for your relationship to be registered? If your relationship then is not approved, are you still in a domestic partnership arrangement?

Ms HILDYARD: If I have understood your question correctly, you would only be deemed to have domestic partner status if you met those requirements in the Family Relationships Act that I very briefly touched upon earlier. So, there is the cohabitation provision, the children provision, etc., listed in the way that you have described, yes.

Mr KNOLL: Potentially, my last question is: you can be a domestic partnership and not in a registered relationship but you cannot be in a registered relationship unless you are in a domestic partnership? Maybe I will ask this question then: are we changing the definition to include the ability of a registered relationship to be included as a domestic partnership, not to the exclusion of anything else?

Ms HILDYARD: Yes.

Mr PEDERICK: As I understand it, under a current domestic relationship there would not be any claim on property until three years. Under a domestic partnership, if it were registered, there could be a claim on a partner's property after essentially a day; is that correct?

Ms HILDYARD: I guess it is the same as a marriage. You can know somebody for a day before you give notice of the intention to marry.

Mr PEDERICK: I understand that, but I believe there will be a difference here because, whether you are currently in a marriage or a non-marriage partnership, my understanding is that you do not have property rights until three years. So, if you go into a registered relation and you are together for two years, you can have a property right over your partner's property. I am just trying to clarify whether someone would have a legal property claim below that three-year limit, which I believe is the time limit now.

Ms HILDYARD: Yes.

The CHAIR: Do we have any questions on the schedule minus the bits we have already taken out?

Ms CHAPMAN: I return, if I may, to clause 28 of the schedule, which relates to the Wills Act. It is on page 22 of the original bill. This is the beginning of the amendments to the Wills Act 1936. As I indicated, government officers have provided some data in relation to how this is going to be effective. Essentially, these amendments anticipate the opportunity for people in registered relationships being able to prepare wills in contemplation of a registered relationship, just as they do on a marriage.

At present, if, having prepared a will, you marry someone, that is an act which has the capacity to then deem that will invalid, and you of course have to start again in recognition that you have made that commitment. Often, people want to sign a whole lot of documents before they get married these days, including wills, often mutually recognising the other fiancé's anticipated status to be their husband or wife. Similarly, these amendments are to recognise in the Wills Act that those wills also have to have status and survive the registration, if I can put it in that sense, as wills between those engaged to be married can currently survive the marriage.

The indication from the officers on this aspect states, 'Further advice will be sought to ascertain the practical requirements people would be required to undertake should they seek to reference both possible circumstances in a will that seeks to contemplate either of these events.' My question is: has that advice been sought and, if so, what is the wording that needs to be included in wills, for example, to recognise this new status? If that advice has not been sought, will it be provided?

Ms HILDYARD: We are awaiting that advice, and I can certainly undertake to check on the progress and advise the house when it is likely to be received.

Ms CHAPMAN: Clause 29 also amends the Wills Act, and that relates to knowing it to be false or misleading. The issue here is the provision for a will to be revoked by certain events. What if the person legitimately thinks they are divorced when they apply for a relationship registration, when in fact they are not, and subsequently states this as fact on their application?

We have situations where people can be charged with an act of bigamy if they marry when they know they are already married. Sometimes, what can occur is someone marries, they have a divorce certificate that they think has, in compliance with the law, divorced them or dissolved their marriage, and they go to the altar the second time around in the full and genuine belief that they are free to marry.

Similarly, in this new arrangement, the person believing they are divorced signs up. Under the way I read the proposed bill, once it was found that there was still an existing, lawful marriage that disqualified that person, the registered relationship would be deemed to be void and would no longer have any status. Its status would be ab initio—that is, from the beginning—not just from that date. Is that the position?

Ms HILDYARD: Yes, and yes to all those points you made. I think the relative principle you articulated in what you spoke about is, obviously, the question of knowledge. In the circumstance that you described, there was not knowledge of that lack of dissolution of the prior marriage, etc., so of course there are different ways to deal with that situation rather than those that attract penalties. So, yes, in relation to the various points that you made, it is the same.

Ms CHAPMAN: It is just that knowing it to be false and misleading is the clause that attracts a penalty as distinct from the validity of the relationship registration.

Ms HILDYARD: Yes.

Ms CHAPMAN: Clause 31 identifies cases where wills may be revoked. 'Termination of marriage' is to be deleted and substituted by 'the ending of a marriage', and also inserted is 'by commencing or ending a registered relationship'. When I asked: what is the process for the application to deregister or make void a registration on the basis that it is a prohibited relationship, underage or whatever is there, the answer was:

A party, including an advocate or representative of a person—

who presumably may be a guardian, for example, of a child who has been caught up in such an event—

would submit a written statement outlining the reason the relationship should be deregistered or void, together with documentary evidence to support their claim. The registrar would then hold an inquiry under clause 16 to determine if there are sufficient grounds to deregister or make void the relationship. If the registrar is unable to determine the case, the matter can be referred to the court.

This is where I think it is going to be more tricky. I remember our looking at the question: what if the federal commonwealth parliament decided that we would become a republic? What would South Australia do in appointing its Governor? It is never the appointment that is the difficult part: it is getting rid of them when they fail. That is the legal complication, and it is similar here. This is where a lot of time can be spent and, indeed, money. I do not personally think that the taxpayer should be responsible for that, so it seems to me that we need to have some very clear instructions in the regulations on how this is going to work.

The marriage dissolution law has been simplified in the Family Relationships Act. You file an application or an affidavit sometimes—at least, it is signed under declaration that it is true that the parties have been separated for a period of 12 months or essentially that the marriage has broken down irretrievably, evidenced by a period of 12 months. However, as a consequence of the relationship being prohibited (that is, the child is actually the sister of the male applicant, or perhaps the two are sisters and it is prohibited), it has to be annulled or declared void.

If it is to be deregistered because there is a separation, especially where there is a dispute about it (namely, one of the two sisters says, 'No, I'm actually not her blood sister. She was adopted,' or there was some other reason), this could be an evidence-taking hearing or inquiry. These can get complicated and expensive, so I would urge the assistant minister to ensure that the regulations are clear about this and who is going to pay for the undoing of these relationships because they can get very messy.

Ms HILDYARD: Yes, I take your point. Thank you, deputy leader.

Schedule as amended passed.

Title.

Ms HILDYARD: I move:

That the title be amended by deleting the following from the title 'the Assisted Reproductive Treatment Act 1988' and 'the Family Relationships Act 1975.'

Amendment carried; title as amended passed.

Relationships Register (No. 1) Bill reported with amendment.

Progress reported on the Statutes Amendment (Surrogacy Eligibility) Bill; committee to sit again.

Third Reading

Ms HILDYARD (Reynell) (12:25): I move:

That the Relationships Register (No. 1) Bill be read a third time.

Bill read a third time and passed.

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