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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-22 Daily Xml
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STATUTES AMENDMENT (DE FACTO RELATIONSHIPS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 May.)

The Hon. S.G. WADE (17:47): I rise to speak to this bill. The opposition will be supporting this bill. 'An urgent and pressing matter'—these were the words that the Law Society used in a letter to the former attorney-general (Hon. Michael Atkinson) urging the government to transfer de facto relationship jurisdiction to the commonwealth. They were words which provided the impetus for a private member's bill by the Leader of the Opposition in the other place to facilitate that transfer after it became clear that the former attorney-general, for reasons known only to him, would continue to sit on his hands, despite every other jurisdiction dealing with the matter in a timely fashion.

Almost a full year has elapsed since July 2010, since the state finally referred its de facto relationship jurisdiction to the commonwealth and more than two years since the commonwealth provisions first came into effect in March 2009. The opposition is certainly of the view that it is our duty to see this transfer fully implemented and expeditiously so. This bill completes the transfer of the jurisdiction. We commend the officers involved for identifying the issues in state law that needed to be updated as a result of the passage of the bill promoted by the Leader of the Opposition. This bill covers consequential amendments, amendments which will end injustice and help provide a fairer and more equitable system in South Australia.

There are problems which had arisen because of the delay in passing the legislation, and these are holes in the protection which we need to correct. The first of the three acts that needs to be dealt with is the Criminal Assets Confiscation Act 2005. The amendments in this bill clarify what can and what cannot be considered the proceeds of crime. In this case, an exemption exists for property distributed more than six years ago, within the bounds of a marriage. The amendments in this new bill extend that exemption to encompass de facto relationships.

The second piece of legislation this bill deals with is the Family Relationships Act 1975. Specifically, it seeks to include whether an agreement was made, under the Family Law Act, between the de facto partners in the criteria applied by a court when deciding whether or not to consider them as domestic partners. If two people are involved in a relationship to the point that they have a legally binding agreement regarding their respective property, it seems silly to not take it into account when deciding if they are to be considered domestic partners.

The third and final area dealt with by this bill is in relation to the Stamp Duties Act 1923. The Stamp Duties Act provides exemptions from stamp duty to married and de facto couples, should it prove necessary, in the dissolution of a relationship, to dispose of property. After all, the state should not profit from relationship breakdown.

The amendment bill we are looking at today expands the bounds of these exemptions to include orders, agreements and consequential instruments made under Part VIIIAB of the Family Law Act 1975 and couples who should be covered under the commonwealth de facto law, but currently are not. The bill also proposes to take the law a step further and make these amendments retrospective to July 2010, when the referring act came into effect. In our view, this is fair, given the possibility that couples who fall under the aegis of the commonwealth law may well otherwise be disadvantaged by the delay in this transfer.

In summary, each of these amendments address an area where South Australians in a de facto relationship might expect the same protections afforded to married couples. Without these amendments to the legislation, those people will be wanting, and it is our view that that is unjust. The support of the Liberal Party for the institution of marriage is strong; however, we do not consider that the institution of marriage is strengthened by treating people in other forms of relationship unfairly. We welcome this bill and we commend it to the council.

The Hon. R.P. WORTLEY (17:52): I rise today to offer some short remarks about the Statutes Amendment (De Facto Relationships) Bill. We know that changes in societal attitudes over our lifetimes have resulted in increased acceptance of couple relationships outside marriage, such as de facto and same-sex relationships. Concurrently, enhanced educational, social and economic opportunities have become more accessible to most people, women especially, which means that entering into marriage is perhaps not quite as necessary, financially or otherwise, as it was in earlier generations.

But, interestingly, de facto relationships have been recognised in social welfare legislation since early in the 20th century. War times, for example, saw a rise in de facto relationships, for perhaps obvious reasons, and the commonwealth Australian Soldiers' Repatriation Act 1920 and the Widows' Pensions Act 1942 are specific examples of government recognition of de facto partnerships.

Returning to more recent times, it is interesting to note a 2009 ABS study, 'Couples in Australia', which indicates, not only that the percentage of adults living in a couple partnership actually fell from 65 to 61 per cent in the 20 years to 2006, but that the proportion of those in registered marriages fell from 62 to 52 per cent over the same period. Meanwhile, de facto relationships more than doubled over that period, from 4 to 9 per cent.

Now, we know that commonwealth, state and territory laws confer rights and obligations, protections and privileges to a variety of prescribed relationships, including personal relationships. Changes to state and territory laws intended to remedy the anomalies created by the constitutional division of legislative responsibility in family law, including the referral of certain powers to the commonwealth, have been required.

While the Commonwealth Powers (De Facto Relationships) Act 2009 has referred legislative power to the commonwealth, particularly with regard to property matters (post-separation) of de facto partners, some small amendments to the three South Australian acts are necessary to ensure that couples now captured by the commonwealth de facto property regime receive equal treatment with other couples.

All of which brings me to the bill before us today. The bill proposes amendments to the South Australian Criminal Assets Confiscation Act 2005, Family Relationships Act 1975 and Stamp Duties Act 1923. The Criminal Assets Confiscation Act enables the removal of assets, including funds, that are the product of criminal activity. This is intended not only to punish criminals and deprive them of their ill-gotten gains but to reduce motivation for offending and reduce the capital available for prospective criminal enterprises. The act relates to orders in Family Court proceedings with regard to the property of 'parties to a marriage'.

Clause 4 of the bill amends section 7(2)(c) to refer to part 8AB Family Law Act agreements, as well as other financial agreements and, further, amends section 7(2)(c)(i) of that act to include the property of 'parties to a de facto relationship'. Section 11B of the Family Relationships Act allows a person whose rights or obligations depend on establishing whether he or she, and another person, or another two persons, were domestic partners, as defined in section 11A, on a certain date to apply for declaration to that effect.

In its deliberations the District Court must take into account matters including: the relationship's duration; the nature and extent of common residence; the degree of financial dependence or interdependence or arrangements for financial support; ownership, use and acquisition of property; the degree of mutual commitment to a shared life; any agreement made under the Domestic Partners Property Act 1996; the care and support of children; the performance of household duties; and the reputation and public aspects of the relationship. This list is to be amended to include any part 8AB Family Law Act financial agreement.

Finally, the Stamp Duties Act, on which I have spoken previously in this place, is to be amended at 71CA to enable the ad valorem stamp duty exemption to apply to Family Law Act instruments that relate to de facto relationships. This exemption will be retrospective to 1 July 2010, which of course is the date on which the Commonwealth Powers (De Facto Relationships) Act 2009 came into operation.

We are certain that the transfer of de facto relationships jurisdiction to the federal sphere will ensure the protection and preservation of the rights of South Australians in de facto relationships, and that the amendments I discussed today will alleviate the concerns of former parties to de facto relationships, legal practitioners and others involved in family law matters.

With regard to the stamp duty exemption, I understand that RevenueSA will be contacting its subscribers, solicitors and conveyancers about the amendments, and I anticipate that timely and appropriate action will then be taken by those practitioners on behalf of their clients. With these remarks, I commend the bill.

Debate adjourned on motion of Hon. B.V. Finnigan.

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