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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-05-03 Daily Xml
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STATUTES AMENDMENT (DE FACTO RELATIONSHIPS) BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (16:46): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill is consequential upon the Commonwealth Powers (De Facto Relationships) Act 2009, which came into operation on 1 July 2010. That Act refers legislative power to the Commonwealth over the division of property of de facto partners upon their separation.

As a result of the referral of power, some minor consequential amendments are required to three Acts to ensure that couples covered by the newly applicable Family Law Act 1975 de facto property regime are treated in the same way as other couples.

The first amendment is to the Criminal Assets Confiscation Act 2005. That Act deals with the question of what property should be considered to be proceeds of crime for the purpose of confiscation. It rules some property in and some out. One example of property that is ruled out of the scope of the Act is property of former couples that has been distributed between them at least six years previously according to law. The Act currently covers the property of married or formerly married couples that has been distributed in accordance with the Family Law Act 1975 and the property of a domestic partner that has been distributed under the Domestic Partners Property Act 1996. This provision should equally apply to property of a de facto couple that has, as a result of the Commonwealth Powers (De Facto Relationships) Act 2009 been similarly distributed under Part VIIIAB of the Family Law Act 1975.

The second amendment is to the Family Relationships Act 1975 and concerns the criteria to be applied by a court in deciding whether the relationship of domestic partners existed between two people at a given time. Among the many factors to be considered is whether the couple had made an agreement under the Domestic Partners Property Act about the division of their property upon separation. Now that some couples will, instead, be making agreements under Part VIIIAB of the Family Law Act 1975, it is necessary to add a reference to that Act. This ensures that the court is able to consider that agreement when weighing up whether the two persons should be judged to be domestic partners.

The third amendment is to the Stamp Duties Act 1923. The law already exempts from stamp duty various agreements and instruments that relate to the division of property when a married couple or a de facto couple separates. The amendment expands s. 71CA of the Stamp Duties Act 1923 so that the same exemptions from duty are available to orders, agreements and consequential instruments made under Part VIIIAB the Family Law Act 1975. This puts de facto couples covered by the Commonwealth law in an equal position with other couples, when it comes to the stamp duty consequences of their property division.

The Bill proposes that the amendments to the Stamp Duties Act 1923 should be retrospective to 1 July 2010, being the commencement date of the referring Act. This is because there may be some de facto couples who are covered by the Family Law Act 1975 regime and have lodged relevant instruments in that period. It is intended that they should enjoy the same exemption from stamp duty as do other couples. There is no disadvantage to any individual and there will only be a minor impact on State revenue, as a result of this retrospective operation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Part 4, which amends the Stamp Duties Act 1923, will be taken to have come into operation on 1 July 2010. The remainder of the measure will come into operation on the day of assent.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Criminal Assets Confiscation Act 2005

4—Amendment of section 7—Meaning of proceeds and instrument of an offence

Section 7(2)(c)(i) of the Criminal Assets Confiscation Act 2005 refers to orders in proceedings under the Family Law Act 1975 with respect to the property of parties to a marriage. This clause amends that provision so that reference is also made to property of the parties to a de facto relationship. Section 7(2)(c) is also amended so that reference is made to Part VIIIAB financial agreements under the Family Law Act 1975 in addition to other financial agreements.

Part 3—Amendment of Family Relationships Act 1975

5—Amendment of section 11B—Declaration as to domestic partners

Section 11B(3) of the Family Relationships Act 1975 lists circumstances that the District Court is to take into account when considering whether to make a declaration that two persons were domestic partners of each other on a particular date. This clause amends the list so that the Court can take into account any Part VIIIAB financial agreement made under the Family Law Act 1975.

Part 4—Amendment of Stamp Duties Act 1923

6—Amendment of section 71CA—Exemption from duty in respect of Family Law instruments

Section 71CA of the Stamp Duties Act 1923 provides an exemption from duty for certain agreements under the Family Law Act 1975 and instruments giving effect to, or arising as a consequence of, those agreements. This clause amends section 71CA so that the exemption applies to instruments under the Family Law Act 1975 relating to de facto relationships.

Debate adjourned on motion of Hon. S.G. Wade.

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