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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-16 Daily Xml
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Bills

Relationships Register (No 1) Bill

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (18:05): I move:

That this bill be now read a second time.

I seek leave to have inserted into Hansard the second reading speech and explanation of clauses without having to read them.

Leave granted.

South Australia has a strong record of ensuring that relationships of all kinds are given the respect and acceptance they deserve through its laws. We have been a state that has rightly responded to the generations of brave activists who have spoken up for equality. Throughout our recent history, we have made a number of changes to our legislation and policy in relation to lesbian, gay, bisexual, transgender, intersex and queer ('LGBTIQ') people. Changes that are focussed on including all South Australians in all aspects of South Australian community life. Whilst we have achieved much, more needs to be done. What we are doing through this bill is part of that great tradition of striving to achieve equality and inclusivity and it represents a significant step on the road to ending discrimination.

In January 2015, our Attorney-General gave the South Australian Law Reform Institute ('SALRI') reference to inquire and report on South Australian laws that discriminated on the grounds of sexual orientation, gender, gender identity and intersex status. Following their review, SALRI released a number of reports. On 2 June 2016, SALRI released a report entitled Rainbow Families: Equal Recognition of Relationships and Access to Existing Laws Relating to Parentage, Assisted Reproductive Treatment and Surrogacy. The report encapsulated SALRI's review of equal recognition of relationships and parenting rights and surrogacy in South Australia, and recommended a number of changes which are well overdue.

On 30 June 2016, SALRI released a report entitled Lawful Discrimination: Exceptions under the Equal Opportunity Act 1984 (SA) to unlawful discrimination on the grounds of gender identity, sexual orientation and intersex status. Some recommendations made by that report are complex and consultation will occur to consider those recommendations. However, there are a number of recommendations in that report included in this Bill to expedite the removal of discrimination in our legislation.

On 26 July 2016, I was proud that this Parliament passed the Statutes Amendment (Gender Identity and Equity) Bill 2016. That Bill removed binary notions of sex and gender and amended provisions of South Australia's legislation which previously failed to set out how the law would apply to a person who is intersex or gender diverse. The Bill also removed interpretive language in South Australia's legislation that had the potential to discriminate against people based on their relationship status.

This Bill, when passed, will create an option for couples in any relationship to more easily demonstrate their status when dealing with various bodies, including government agencies and service providers, in order to have their relationship respected and access their rights and entitlements.

The Bill will achieve this through the implementation of the recommendations set out in the SALRI Equal Recognition of Relationships report as they relate to the establishment of a relationship register, amendment of access and eligibility provisions and the amendment of the Wills Act 1936.

The relationship register, once established, will also ensure that South Australia is in line with the federal government's moves to remove discrimination of unmarried people whether in heterosexual or non-heterosexual relationships. The Commonwealth has amended its Acts Interpretation Act 1901 to define a 'de facto partner' in its legislation to include partners in registered relationships under a prescribed law of a State or Territory. The Government will work with the Commonwealth to have this Bill added as a prescribed law once passed by the South Australian Parliament. This Bill, once passed, will also bring South Australia into line with other jurisdictions that have relationship registers, including the Australian Capital Territory, New South Wales, Victoria and Tasmania.

This Bill recognises that people in South Australia choose to enter diverse types of relationships. Unmarried couples, whether in heterosexual or non-heterosexual relationships, will be able to register their relationships, receive a certificate of registration and know that their relationship is respected and recognised here in South Australia. The register provides an important avenue for all couples to express their commitment to each other in a dignified and legally recognised way.

This reform respects the dignity of unmarried couples. It does this by creating a mechanism through which couples can register with ease their relationship and through this mechanism, it will be easier for couples to prove that they are in a genuinely committed relationship. This will make simpler the process of seeking access to entitlements and to asserting their rights as a couple, including in situations of a medical nature.

Couples who choose not to register their relationships will not be disadvantaged as the provisions regarding de facto relationships will not be altered by this Bill. A registered relationship is not, of course, a marriage. Sadly, our South Australian Parliament has no constitutional power to legislate in relation to marriage. However, this Bill does recognise the freedom of individuals to choose to enter relationships in diverse forms and provides legal recognition and support for that choice.

I turn now to the key features of the Bill. The object of the Bill is to provide for the legal recognition of persons in a relationship as a couple, regardless of their sex or gender identity, by registration of the relationship. The Registrar of Births, Deaths and Marriages will administer the register. Registration will be voluntary. A couple must apply to the Registry of Births, Deaths and Marriages to have their relationship registered. This recognises individual autonomy, with partners voluntarily choosing to register their relationship and to be bound by the legislation.

Clause 5 of the Bill provides that a relationship will be eligible for registration where the two parties are in a relationship as a couple, are adults, where at least one resides in South Australia, where neither party is married, in another registered relationship or in a relationship as a couple with another person and where the parties are not related to each other. As with the Australian Capital Territory, New South Wales, Victorian and Tasmanian schemes, it will not be a requirement for registration that couples live together. The Government considers that people may genuinely be in a committed relationship even though they do not live together. This may be for reasons relating to employment, arrangements for medical treatment, convenience or personal choice.

The registration of a relationship will be void under clause 14 of the Bill if registration was prohibited when it was registered – that is, where the person or persons did not meet the eligibility requirements. The registration will also be void if the agreement to registration was obtained by fraud, duress or other improper means or if, at the time of registration, either party was mentally incapable of understanding the nature and effect of registration. Clause 14 also empowers a court to declare a registration void.

Clause 6 deals with applications for registration. To apply, both parties will need to sign a statutory declaration stating that they meet the eligibility requirements and that they wish to register the relationship. They will also need to provide evidence of their identity and age. A fee will be payable with the application to register and the amount will be set by regulation.

The effect of clause 8 and clause 9 is that, on receipt of a valid application and after a 28-day cooling-off period, the Registrar must register the relationship. The cooling-off period is designed to ensure that the decision to register a relationship is a considered one. Either party may withdraw his or her application during the cooling-off period. This has similarities with the Marriage Act 1961 (Cth) whereby at least one month's notice must be served before a marriage can be lawfully solemnised.

Clause 13 provides for automatic revocation of registration if one of the parties dies or marries. There is also provision in clause 10 to revoke registration of a relationship in cases where a relationship has broken down. The Registrar can revoke the registration of a relationship on the application of one or both of the parties. If only one partner wishes to have the registration revoked, he or she will have to demonstrate that notice has been served on the other party. The Registrar can dispense with that notice requirement if satisfied that it is not reasonably practicable to give notice as required. This ensures that no person should have to remain in a registered relationship if they do not wish to, while recognising the right of the other person to be duly informed.

To ensure that registrations are not revoked lightly and to encourage people to think carefully before entering into registered relationships, clause 11 creates a 90-day cooling-off period before a registration can be revoked. This is consistent with the New South Wales relationships register framework.

The Bill also provides for the potential recognition of interstate registered relationships. Clause 26 provides that regulations may declare that a class of relationships registered or recognised under a corresponding law of another State or Territory, or of another country, are 'registered relationships' for the purposes of the Act. This will ensure couples that register their relationship in another jurisdiction and then move to South Australia do not have to re-register their relationship in this State. This will also provide for the automatic recognition of recognised overseas non-heterosexual marriages under South Australia law. This provision is vital to ensuring that circumstances such as those experienced by the family of Mr David Bulmer-Rizzi, upon his tragic death in South Australia, can be avoided in the future.

The Bill also makes a number of consequential amendments to other legislation to ensure that all of the recommendations of the SALRI report are captured. The Bill will amend:

the Births, Deaths and Marriages Registration Act 1996 to amend the general functions of the Registrar to include the functions to be conferred on the Register by this Bill, when passed;

the Domestic Partners Property Act 1996 to amend the definition of 'domestic partner' to include a person in a registered relationship;

the Equal Opportunity Act 1984 to:

amend the definition of 'domestic partner' to include a person in a registered relationship;

remove the current exemption excluding particular fertilisation procedures from the definition of 'service' for the purposes of the Equal Opportunity Act 1984;

extend the protections offered under Part 3 of the Equal Opportunity Act 1984 to people who identify as intersex; and

ensure that the Equal Opportunity Commission has sufficient powers to issue practice guidelines with respect to the protections and exemptions set out in the Equal Opportunity Act 1984; and

the Wills Act 1936 to include references to 'registered relationships' wherever required.

The Bill, as introduced in the other place, also proposed the following consequential amendments:

the amendment of the Assisted Reproductive Treatment Act 1988 to clarify that a person can access assisted reproductive treatment if, in the person's circumstances, they are unlikely to become pregnant other than by an assisted reproductive treatment procedure and include the guiding principle that people seeking to undergo assisted reproductive treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status or religion; and

the amendment of the Family Relationships Act 1975 to:

amend the definition of 'qualifying relationship' to include a relationship between two people who are partners irrespective of their sex or gender identity;

with respect to assisted reproductive treatment, introduce transitional provisions to ensure that couples who have had a child as a result of assisted reproductive treatment since the enactment of the Family Relationships (Parentage) Amendment Act 2011, but prior to the introduction of the relationships register as proposed in this Bill, and who subsequently meet the amended definition of 'qualifying relationship', are presumed to be the parents of the child born of the assisted reproductive treatment; and

with respect to surrogacy, permit access to surrogacy for domestic partners (including parties to a registered relationship) or sole commissioning parents, regardless of sex, gender identity or marital status ; and

The Bill has been split and those amendments will now be dealt with by way of a separate Bill.

Following the passage of this Bill, a consequential amendments bill will also be introduced to address references to marriage-like relationships throughout South Australia's legislation and ensure that, where relevant, those references are amended to take into account persons in registered relationships. It is also intended that, in due course, the remaining recommendations set out in the SALRI's report of 30 June 2016 will be fully considered.

This Bill is a crucial and strong step towards removing discrimination against unmarried couples, whether they are in heterosexual or non-heterosexual relationships. It provides a mechanism for demonstrating their love and shared commitment and facilitates the recognition of such relationships for practical purposes. It also demonstrates a respect for the many diverse relationships in our community and, rightly, promotes a more inclusive South Australia. I commend the step that this bill takes towards equality and I commend this Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Object

The object of this measure is to provide for the legal recognition of persons in a relationship as a couple, irrespective of their sex or gender identity, by registration of the relationship.

4—Interpretation

This clause sets out the definitions of words and phrases for the purposes of this measure, including the following:

the Registrar is the Registrar of Births, Deaths and Marriages within the meaning of the Births, Deaths and Marriages Registration Act 1996 (the BDMR Act);

a registered relationship is a relationship that is registered under this measure.

Part 2—Registered relationships

Division 1—Registration

5—Eligibility for registration

This clause sets out the eligibility requirements for registration of a relationship under this measure and provides that 2 adults who are in a relationship as a couple, irrespective of their sex or gender identity, may apply to the Registrar for registration of their relationship.

A relationship cannot be registered—

unless at least 1 of the adults resides in South Australia; or

if—

either adult is married; or

either adult is already registered under this Act or a corresponding law as being in a registered relationship or a corresponding law registered relationship; or

either adult is in a relationship as a couple with another person; or

the adults are related by family.

6—Applications for registration

This clause provides for the application procedure for registration. An application for registration of a relationship is to be made in the form approved by the Registrar and must be accompanied by—

a statutory declaration by each person in the relationship stating the following:

that the person wishes to register the relationship;

that the person is in a relationship as a couple with the other person;

that the person is not married;

that the person is not registered under this measure or a corresponding law as being in a relationship or a corresponding law registered relationship;

that the person is not in a relationship as a couple with a person other than the other applicant;

that the person does or does not reside in South Australia;

that the person is not related to the other applicant by family; and

evidence of the identity and age of each person in the relationship; and

the fee prescribed by the regulations; and

any other documents and information prescribed by the regulations.

7—Cooling-off period for registration

This clause provides that the Registrar must not register a relationship before the end of the cooling-off period (being a period ending 28 days after the application is made) for the registration application (which application may be withdrawn at any time during the cooling-off period).

8—Registration of relationships

This clause provides that the Registrar must register a relationship in the Register as soon as practicable after the end of the cooling-off period if—

the Registrar is satisfied that the relationship may be registered under this Act; and

the application has not been withdrawn.

9—Commencement of registered relationships

This clause provides that a registered relationship will be taken to commence when the Registrar makes an entry relating to the relationship in the Register, including any particulars required by regulation.

Division 2—End of registered relationships

10—Applications for revocation of registration by parties

This clause provides for an application to be made by 1 or both persons in a registered relationship to the Registrar to revoke the registration of the relationship. The clause sets out the requirements for making such an application.

11—Cooling-off period for revocation applications

This clause provides that the cooling-off period for a revocation application is the period ending 90 days after the application for revocation is made. An application may be withdrawn during this period.

12—Revocation on application by 1 or both persons

This clause provides that the Registrar must revoke the registration of a registered relationship as soon as practicable after the end of the cooling-off period if an application is made under this Division and the Registrar is satisfied that the application has not been withdrawn.

13—End of registered relationships

This clause provides that the registration of a registered relationship is revoked—

on the death of a person in the relationship;

on the marriage of a person in the relationship;

if an application for the revocation of the registration of a relationship has been made under the Division—when the Registrar makes an entry relating to the revocation of the relationship in the Registrar, including any particulars required by regulation.

14—Void registrations

This clause provides that registration of a relationship is void if—

when the relationship was registered, registration under this measure was prohibited; or

the agreement of 1 or both of the persons in the relationship to the registration was obtained by fraud, duress or other improper means; or

when the relationship was registered, either party was mentally incapable of understanding the nature and effect of the registration.

Part 3—Relationships register

Division 1—Keeping the Register

15—Relationships register

This clause provides that the Registrar must maintain a register of registered relationships (the Relationships Register) which—

must contain the particulars of each registered relationship required under this Act to be included in the Register in a form determined by the Registrar; and

may contain further information if its inclusion is authorised under the regulations.

The Register may be wholly or partly in the form of a computer data base, in documentary form, or in another form the Registrar considers appropriate.

Division 2—Registrar's powers of inquiry

16—Registrar's powers of inquiry

This clause gives the Registrar power to conduct an inquiry to find out—

particulars to verify information given for, or in connection with, an application for registration of a relationship or revocation of registration; or

whether particulars of a registered relationship have been correctly recorded in the Register.

This clause is similar to section 41 of the BDMR Act.

Division 3—Correction of Register

17—Registrar's power to correct Register

This clause allows the Registrar to correct the Register—

to reflect a finding made on inquiry under the previous Division; or

to bring the particulars contained in an entry about a registered relationship into conformity with the most reliable information available to the Registrar of the registered relationship.

This clause is similar to section 42 of the BDMR Act.

Division 4—Access to, and certification of, Register entries

18—Access to Register

19—Search of Register

20—Protection of privacy

21—Issue of certificates

Clauses 18 to 21 mirror sections 43 to 46 of the BDMR Act.

22—Falsification of certificate etc

This clause mirrors section 53 of the BDMR Act.

23—Access policies

This clause mirrors section 47 of the BDMR Act.

24—Fees

25—Power to remit fees

Clauses 24 and 25 mirror sections 48 and 49 of the BDMR Act.

Part 4—Recognition of corresponding law registered relationships

26—General requirements for corresponding laws

This clause provides that the regulations may declare that a class of relationships registered or recognised under a corresponding law are corresponding law registered relationships for the purposes of this measure.

Without limiting the generality of that statement, the general requirements for a relationship to be registered or formally recognised under a corresponding law are that the relationship—

must be between 2 adult persons; and

must have been entered into consensually; and

must not be between persons who are related by family; and

must not be entered into by a person who is already married; and

must not be entered into by a person who is already in a relationship that is registered or formally recognised under that law.

27—Corresponding law registered relationships taken to be registered relationships under this Act

This clause provides that a corresponding law registered relationship, that is not a marriage within the meaning of the Marriage Act 1961 of the Commonwealth, will be taken to be a registered relationship under this measure, and a person who is in a corresponding law registered relationship may apply to the Registrar for a certificate to that effect.

Part 5—General power of review

28—Review

This clause allows a person who is dissatisfied with a decision of the Registrar made in the performance or purported performance of functions under this measure to apply to the Magistrates Court for a review of the decision. On such a review, the Court may—

confirm, vary or reverse the Registrar's decision; and

make consequential and ancillary orders and directions.

Part 6—Miscellaneous

29—False representation

This clause makes it an offence to make a false or misleading representation in an application or document under this Act, knowing it to be false or misleading. The penalty for the offence is a fine of $1,250.

30—Unauthorised access to or interference with Register

This clause makes it an offence (the penalty for which is a fine of $10,000 or imprisonment for 2 years) if a person, without lawful authority—

obtains access to the Register or information contained in the Register; or

makes, alters or deletes an entry in the Register; or

interferes with the Register in any other way.

31—Regulations

This clause makes provision for the making of regulations for the purposes of the measure.

Schedule 1—Consequential, related and other amendments

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Births, Deaths and Marriages Registration Act 1996

2—Amendment of section 6—Registrar's functions

The proposed amendments to section 6 are consequential on the enactment of this measure.

Part 3—Amendment of Domestic Partners Property Act 1996

3—Amendment of section 3—Interpretation

The amendments proposed to section 3 of the principal Act are consequential on the enactment of this measure and make provision for domestic partners to include persons in a registered relationship.

Part 4—Amendment of Equal Opportunity Act 1984

4—Amendment of section 5—Interpretation

The amendments proposed to section 5 of the principal Act are consequential on the enactment of this measure and make provision for domestic partners to include persons in a registered relationship.

5—Amendment of section 29—Criteria for discrimination on ground of sex, gender identity, sexual orientation or intersex status

It is proposed to amend section 29 to prohibit discrimination on the ground of a person's intersex status and substitute binary language for gender neutral language.

6—Amendment of section 30—Discrimination against applicants and employees

7—Amendment of section 31—Discrimination against agents and independent contractors

8—Amendment of section 32—Discrimination against contract workers

9—Amendment of section 33—Discrimination within partnerships

10—Amendment of section 34—Exemptions

11—Amendment of section 35—Discrimination by associations

12—Amendment of section 36—Discrimination by qualifying bodies

13—Amendment of section 37—Discrimination by educational authorities

14—Amendment of section 38—Discrimination by person disposing of an interest in land

15—Amendment of section 39—Discrimination in provision of goods and services

16—Amendment of section 40—Discrimination in relation to accommodation

17—Amendment of section 45—Charities

18—Amendment of section 47—Measures intended to achieve equality

The amendments proposed in clauses 6 to 18 are consequential on the proposed inclusion in section 29 of the protection against discrimination based on a person's intersex status.

19—Insertion of Part 6A

It is proposed to insert a new Part after section 91 of the principal Act.

Part 6A—Practice guidelines

91A—Commissioner may issue practice guidelines

New section 91A makes it clear that the Commissioner may issue practice guidelines (to be published on the Commissioner's website) on any matter relating to the principal Act. In preparing practice guidelines, the Commissioner should consult with persons or bodies that the Commissioner considers represent the areas or persons to whom the practice guidelines will relate.

91B—Effect of practice guidelines

New section 91B clarifies that practice guidelines are not legally binding but a court or the Tribunal may consider evidence of compliance with practice guidelines if relevant to any matter before the court or Tribunal under the principal Act.

Part 5—Amendment of Wills Act 1936

20—Insertion of section 19A

It is proposed to insert a new section 19A at the beginning of Division 4 of Part 2 of the principal Act dealing with the revocation of wills. It is intended that the action of entering into a registered relationship or revoking a registered relationship will have the effect of revoking a will just as getting married or terminating a marriage has that effect.

19A—Interpretation

New section 19A inserts definitions of partner and registered relationship for the purposes of the Division.

21—Amendment of section 20—Will to be revoked by certain events

The amendments proposed to section 20 of the principal Act use gender neutral language and provide that the entering into a registered relationship by a person will revoke any will previously made by the person in the same way that getting married revokes a previously made will. However, a will made in contemplation of the registration of a relationship will not be revoked by the commencement of the registered relationship contemplated.

22—Amendment of section 20A—Effect on will of termination of a marriage or registered relationship

23—Amendment of section 22—In what cases wills may be revoked

These proposed amendments are consistent with the amendments proposed to sections 19, 20 and 20A of the principal Act.

Debate adjourned on motion of Hon. T.J. Stephens.

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