House of Representatives

Same Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008

Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland Mp

Schedule 7 - Finance and Deregulation amendments

534 This Schedule contains amendments to the following Acts within the Finance and Deregulation portfolio to remove differential treatment of same-sex couples and their children:

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Commonwealth Electoral Act 1918
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Medibank Private Sale Act 2006
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Members of Parliament (Life Gold Pass) Act 2002
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Parliamentary Entitlements Act 1990 , and
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Superannuation Act 1976 .

This Schedule also removes marital status discrimination from the Members of Parliament (Life Gold Pass) Act 2002 .

Part 1-General amendments

Commonwealth Electoral Act 1918

535 The Commonwealth Electoral Act 1918 (the Electoral Act) establishes the machinery and regulations for federal elections.

Item 1

536 This item inserts the key definition of 'child' at the end of the definition of 'child' in subsection 4(1) of the Electoral Act to extend the range of persons who can be considered to be the child of a person for the purposes of the Electoral Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 2

537 This item inserts a definition of 'de facto partner' into subsection 4(1) of the Electoral Act, which provides that a 'de facto partner' has the meaning given by the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 3

538 This item inserts a definition of 'next of kin' into subsection 4(1) of the Electoral Act that provides that the term 'next of kin' in sections 94A, 95AA, 96A and 96 of the Electoral Act have a meaning affected by subsection 4(11) of the Electoral Act, which is inserted by Item 5 of this Schedule.

Item 4

539 This item repeals the definition of 'spouse' in subsection 4(1) of the Electoral Act as a consequence of amendments made by Item 2 of this Schedule.

Item 5

540 This item inserts subsection 4(11) into the Electoral Act. Paragraphs 4(11)(a) and 4(11)(b) provide that the following persons are to be taken into account in determining whether a person is next of kin of another person:

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a de facto partner of the person
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a child of the person because of the definition of 'child' inserted by Item 1 of this Schedule, or
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someone of whom the person is a child (ie the parent of the person) because of the definition of child inserted by Item 1 of this Schedule.

541 Paragraph 4(11)(c) is a tracing rule that provides that anyone else who would be a relative of a person because a de facto partner, a child or someone of whom the person is a child is taken into account. For example, the sibling of a de facto partner of a person could be considered as next of kin because they would be considered to be a relative. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 6

542 This item inserts a reference to the definition of 'de facto partner' into paragraph 95(1)(a) of the Electoral Act to extend the range of persons entitled to be treated as an eligible overseas elector.

Item 7

543 Section 104 of the Electoral Act allows a person to make a request for their address not to be shown on the electoral roll where it would place the personal safety of the person or of members of the person's family at risk. This item inserts subsection 104(11) into the Electoral Act to expand who is considered to be a member of a person's family for the purposes of section 104 of the Electoral Act.

544 Paragraphs 104(11)(a) and 104(11)(b) provide that for the purposes of section 104 of the Electoral Act, members of a person's family are taken to include:

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a de facto partner of the person
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a child of the person, or
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someone of whom the person is a child (ie the parent of the person).

545 Paragraph 104(11)(c) is a tracing rule that provides that anyone else who would be a relative of a person because a de facto partner, a child or someone of whom the person is a child is taken into account. For example, the sibling of a de facto partner of a person could be considered a member of the person's family for the purposes of section 104 because they would be considered to be a member of the family. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Medibank Private Sale Act 2006

546 The Medibank Private Sale Act 2006 (the MPS Act) allows the sale of the Commonwealth's equity in Medibank Private Limited, and for other purposes that do not require a sale scheme. As the MPS Act does not mandate a sale of the Commonwealth's equity, it does not conflict with the Government's decision not to proceed with the sale of Medibank Private Limited.

Item 8

547 This item amends clause 33 of Schedule 2 of the MPS Act as a consequence of the addition of a new subclause (2) in that clause by Item 14 of this Schedule.

Item 9

548 This item inserts the key definition of 'child' into clause 33 of Schedule 2 of the MPS Act to extend the range of persons who can be considered to be the child of a person for the purposes of the MPS Act. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 10

549 This item inserts the key definition of 'parent' into clause 33 of Schedule 2 of the MPS Act to extend the range of persons who can be considered to be the parent of a child within the meaning of the key definition of 'child' inserted by Item 9 of this Schedule. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 11 to 14

550 The definition of 'relative' in clause 33 of Schedule 2 of the MPS Act provides that a relative, in relation to a person, means:

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the person's spouse
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another person who, although not legally married to the person, lives with the person on a bona fide domestic basis as the husband or wife of the person
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a parent or remoter lineal ancestor of the person
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a son, daughter or remoter issue of the person, or
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a brother or sister of the person.

551 The current definition of 'relative' in clause 33 of Schedule 2 of the MPS Act does not include same-sex couples as they are not considered the spouse, husband or wife of a person. The definition also does not make provision for the children of same-sex couples or the child's parents.

552 Item 11 replaces paragraph (b) of the definition of 'relative' with a non-discriminatory reference to a person's de facto partner within the meaning of the Acts Interpretation Act.

553 Item 12 amends paragraph (d) of the definition of 'relative' in clause 33 of Schedule 2 to the MPS Act to replace the gender-specific terms 'son' and 'daughter' with the gender-neutral term 'child'. The amendment also ensures the application of the definition of 'child' inserted by Item 9 of this Schedule.

554 Item 13 inserts a note at the end of the definition of 'relative' in clause 33 of Schedule 2 to the MPS Act to direct the reader to subclause 33(2) of the MPS Act, which is relevant to the definition of 'relative'.

555 Item 14 inserts subclause 33(2) into clause 33 of Schedule 2 to the MPS Act. Subclause 33(2) is a tracing rule that allows relationships within the meaning of 'parent', 'remoter lineal ancestor', 'child', remoter issue', 'brother' and 'sister' to be traced through the definitions of 'parent' and 'child'. This means that in relation to a child, the other children of the parent are that child's siblings. A description of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

556 The effect of these amendments is to expand who is considered to be a relative of a person for the purposes of the MPS Act.

Item 15

557 Part 4 of Schedule 2 to the MPS Act contains restrictions on the ownership of Medibank Private by particular individuals or entities. The MPS Act refers to these restrictions collectively as 'unacceptable ownership situations'.

Subitem ( 1 )

558 In calculating an individual's ownership stake for these MPS Act provisions, the ownership interests of their relatives are taken into account. The amendments made by Items 8 to 14 will expand the class of people who are considered to be relatives for this purpose. Those amendments could potentially place people in breach of the ownership restrictions.

559 Subitem (1) ensures that individuals who are affected by the amendments made by Items 8 to 14 have an opportunity to rectify an unacceptable ownership situation that is created by those amendments. Those individuals will have a grace period of 6 months, starting on the day on which the amendments commence, to remedy the situation.

Subitem ( 2 )

560 Clause 32 of Schedule 2 to the MPS Act allows regulations to require individuals and entities to give notice of their ownership interests to the Finance Minister or to a Medibank Private company.

561 Subitem (2) will give individuals who are affected by the amendments made by Items 8 to 14 a grace period from any regulations made under clause 32. Individuals who are caught for the first time by any such regulations, simply because of the amendments made by Items 8 to 14 of this Schedule, will have 6 months during which they are not required to comply with any such regulations.

Members of Parliament (Life Gold Pass) Act 2002

562 The Members of Parliament (Life Gold Pass) Act 2002 (the Life Gold Pass Act) sets out the domestic travel arrangements for Life Gold Pass Holders (ie former Prime Ministers, former Senators or Members) and their spouses (including spouses of sitting Senators or Members who have satisfied the relevant qualifying period for a Life Gold Pass, widows and widowers). The Life Gold Pass Act provides a uniform set of arrangements as to the type of travel that may be undertaken. Qualifying periods for a Life Gold Pass are determined by the Remuneration Tribunal.

563 The Life Gold Pass Act currently only provides entitlements to a Life Gold Pass holder's, or qualifying Senator or Member's, legally married spouse. The amendments will extend the travel entitlements for spouses to include the de facto partners (including same sex partners) of Life Gold Pass holders. Generally, this is achieved by retaining the term 'spouse' in the Life Gold Pass Act for married couples and adding the term de facto partner, as defined in the Acts Interpretation Act, wherever the term 'spouse' occurs.

Item 16

564 This item amends the simplified outline in section 3 of the Life Gold Pass Act to reflect that both spouses and de facto partners are now covered by the Life Gold Pass Act.

Item 17

565 This item inserts a definition of 'de facto partner' into section 4 of the Life Gold Pass Act, which provides that a 'de facto partner' includes a de facto partner within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 18

566 This item inserts a definition of 'surviving spouse or de facto partner' into section 4 of the Life Gold Pass Act. This term replaces the terms 'widow' and 'widower' in the Life Gold Pass Act. Paragraph (a) of the definition provides that a 'surviving spouse or de facto partner' of a deceased Life Gold Pass holder means a spouse or de facto partner of the person immediately before the Life Gold Pass holder died, who was named in a nomination in force under section 9B (this includes both actual and deemed nominations).

567 Paragraph (b) of the definition provides that in circumstances where a sitting Senator or Member, who has satisfied the relevant qualifying period for the issue of a Life Gold Pass, dies while in office and does not have a valid nomination under section 9B of the Life Gold Pass Act, the surviving spouse or de facto partner will be the person nominated previously by the Senator or Member for the purposes of other travel entitlements administered by the Department.

568 Paragraph (c) provides that, where different people are named in a nomination under section 9B and a nomination provided to the Department for other travel entitlement purposes under paragraph (b) of the definition of 'surviving spouse or de facto partner', the most recent nomination in force applies.

Example 1 Senator J is eligible for a Life Gold Pass, but dies while in office. Senator J previously submitted a nomination form under section 9B just after the amendments commenced. However, this was ten months ago and since then Senator J has separated from her spouse (although is still legally married) and has a de facto partner. Senator J has a nomination provided to the Department which specifies her de facto partner for travel purposes. Under the operation of this definition, the de facto partner would be the 'surviving spouse or de facto partner' for purposes of the Life Gold Pass Act.

569 This item provides that the nomination form is to be provided to the Department. The reference to 'Department' in the Life Gold Pass Act is a reference to the Department of Finance and Deregulation by virtue of subsection 19A(3) of the Acts Interpretation Act and reflects the current processes in relation to the administration of parliamentary entitlements. That is, when accessing most entitlements, current and former Parliamentarians are required to submit forms to the Department of Finance and Deregulation (not a specified individual) to access their entitlements.

Items 19 and 20

570 These items repeal the definitions of 'widow' and 'widower', as these terms have been replaced by the term 'surviving spouse or de factor partner', inserted by Item 18 of this Schedule.

Items 21, 22 and 23

571 These items replace references to the terms 'widow or widower' in subsections 9(2) and 9(4) and paragraphs 9(3)(a) and 9(3)(b) of the Life Gold Pass Act with the new term 'surviving spouse or de facto partner' as a consequence of the amendments made by Items 18, 19 and 20 of this Schedule.

Item 24

572 This item inserts provisions setting out a nomination process for a spouse or de facto partner entitled to travel under the Life Gold Pass Act. The nomination of an entitled person enables the Department to clearly determine the (surviving) spouse or de facto partner entitled to travel under the Life Gold Pass Act.

573 Section 9A provides that there must be a nomination in force under section 9B in relation to a person's spouse or de facto partner in order for the spouse or de facto partner to be entitled to domestic return trips under the Life Gold Pass Act. Subsection 9A(2) provides that only one spouse or de factor partner of a person may be nominated at any time.

574 Subsection 9B(1) provides that a Life Gold Pass holder may nominate his or her spouse or de facto partner who is entitled to domestic return trips under the Life Gold Pass Act. Subsection 9B(2) sets out the requirements for a valid nomination, namely, that it is in writing, names the spouse or de facto partner and specifies the date of effect for the nomination, called the 'start day'. The start day may be prior to the date the nomination is actually made, but cannot be earlier than the day the nominated person became the person's spouse or de facto partner. This means that a nomination can be backdated, but not to a time earlier than when the nominated person became the spouse or de facto partner of the Life Gold Pass holder.

575 Subsection 9B(4) provides that a nomination is in force from the start day until the day the Life Gold Pass holder revokes the nomination in writing, or the day before the Life Gold Pass holder nominates another person as his or her spouse or de facto partner, whichever is the earlier.

576 Subsection 9B(5) makes it clear that if a subsequent nomination for another spouse or de facto partner includes a period when travel was undertaken by a previous spouse or de facto partner, the trips taken by the previous spouse or de facto partner is within entitlement. In this situation the number of trips the subsequent spouse or de facto partner would be entitled to is reduced under section 14 of the Life Gold Pass Act. This is referred to in the note at the end of subsection 9B(5), which sets out that under section 14 of the Life Gold Pass Act the total trips that may be taken by the subsequently nominated spouse or de facto partner in the year in which the start day occurs cannot exceed the number of trips left untaken in that year by the previously nominated spouse or de facto partner.

Example 1 Spouse A is a nominated traveller from 1 July 2008 and undertook travel in February 2009. The Department receives a nomination form for De facto Partner B with the start day as 1 January 2009. Travel undertaken by Spouse A in these circumstances would not be outside of entitlement. The number of trips De facto Partner B is entitled to is reduced by the number of trips already taken by Spouse A.

Items 25, 27, 28, 30, 31, 32, 34, 38, 43, 45 and 47

577 These items insert the term 'de facto partner' after the term spouse, wherever occurring, in sections 10, 11, 12, 13, 14, 19, 22, 23, 24 and 29 of the Life Gold Pass Act to ensure the provisions apply in respect of de facto partners, as well as spouses.

Items 26, 29, 44 and 46

578 These items replace references to 'widow' and 'widower' wherever occurring in sections 10, 11, 21 and 28 of the Life Gold Pass Act with the new terminology of 'surviving spouse or de facto partner' as a consequence of amendments made by Items 18, 19 and 20 of this Schedule.

Item 33

579 This item makes a minor technical amendment to the table heading in column 3 of the table in subsection 14(1) of the Life Gold Pass Act, by replacing the reference to 'using the pro-rating formula in' with 'under'.

Items 35, 36, 37, 39, 40 and 41

580 The nomination process (and the commencement of a start day) is not an 'event' for the purposes of Items 2 and 3 in the table in subsection 14(1) of the Life Gold Pass Act. Accordingly, this term has been removed by Items 35 and 39 of this Schedule.

581 Items 30, 37, 40 and 41 remove the references to a 'spouse' and insert references to the nomination process under sections 9A and 9B of the Life Gold Pass Act. The start day on the nomination form is the relevant date for the pro-rating of the entitlement in the table in subsection 14(1) of the Life Gold Pass Act.

Item 42

582 This item replaces subsection 14(2) of the Life Gold Pass Act, which deals with the pro-rating formula for calculating an entitlement to domestic return trips where an entitlement does not exist for an entire financial year. The pro-rating formula has not changed and is now in new subsection 14(2A) of the Life Gold Pass Act. However, new subsection 14(2) provides that where there is more than one spouse or de facto partner in a financial year, the entitlement for the second (or subsequent) spouse or de facto partner is limited to the lower amount of either the pro-rated amount or the total number of trips less any trips taken by the former spouse or de facto partner.

Example 1 Under subsection 11(2), the spouse or de facto partner of a former Member of Parliament (who is entitled to a Life Gold Pass) is entitled to a maximum of 25 domestic return trips per year.

De facto Partner C has a nomination under the Life Gold Pass Act for the period 1 July to 31 March.
De facto Partner D has a nomination under the Life Gold Pass Act for the period 1 April to 30 June.

De facto Partner C took 3 domestic return trips prior to 31 March. Subsection 14(2) operates so that De facto Partner D is actually entitled to 6 trips - the lower of the two amounts calculated as follows:

Under paragraph 14(2)(a), De facto Partner D is entitled to 6 return trips: [25 x ((30+31+30)/365) = 6.2, rounded to the nearest whole number, 6 trips]; or
Under paragraph 14(2)(b), De facto Partner D is entitled to 22 trips : [25 - 3].

Example 2 Using the same scenario as above, De facto Partner C took 21 domestic return trips prior to 31 March. Subsection 14(2) operates so that De facto Partner D is actually entitled to 4 trips - the lower of the two amounts calculated as follows:

Under paragraph 14(2)(a), De facto Partner still entitled to 6 return trips: [25 x ((30+31+30)/365) = 6.2, rounded to the nearest whole number, 6 trips]; or
Under paragraph 14(2)(b), De facto Partner D is limited to the number of trips remaining as part of the entitlement - ie 4 trips: [25 - 21].

Item 48

583 This item deals with transitional and application matters. Subitem 48(1) provides that spouses who are entitled to travel prior to the commencement of the amendments are deemed to have a valid nomination in place under sections 9A and 9B and a new nomination is not required in respect of those spouses. However, following commencement of the amendments, these deemed nominations may be revoked or a subsequent nomination may be provided under section 9B of the Life Gold Pass Act (see subitem 48(2)). Similarly subitem 48(1)(b) provides that where a Life Gold Pass holder dies after the commencement of the amendments without having made a valid nomination under sections 9A and 9B, there is a deemed nomination in respect of the spouse for the purposes of the definition of 'surviving spouse or de facto partner'.

584 Subitem 48(3) provides that any nomination made under section 9B of the Life Gold Pass Act on or after commencement of the amendments made by Schedule 7 to the Bill cannot have a start day earlier than the day on which these amendments commence.

Example 1 A Life Gold Pass holder has been legally married to Spouse G since April 2007. The Life Gold Pass Holder has previously not provided evidence of their marriage to the Department, but following the commencement of the amendments, this evidence is provided. Spouse G is deemed to have a nomination under section 9A and 9B of the Life Gold Pass Act as he/she was entitled to travel prior to the amendments.

Example 2 De facto Partner H has been in a relationship with a Life Gold Pass holder since May 2007. Subitem (3) operates so that the Life Gold Pass holder may only provide a nomination form in respect of De facto Partner H, in order for him/her to access the entitlement, with a start day that is on or after the commencement date of the amendments.

585 Subitem 48(4) makes it clear that the definition of 'surviving spouse or de facto partner' is to be applied where a sitting Member of Parliament dies on or after the commencement of the amendments.

Example 1 A Member of the House of Representatives (entitled to a Life Gold Pass) dies after the commencement of the amendments, while they are still a sitting Member. They have two relationships: Spouse J and the more recent De facto Partner K. There is no nomination made in respect of Spouse J under section 9A or 9B of the Life Gold Pass Act, however, Spouse J is deemed to have a nomination under section 9B (see discussion relating to subitem 48(1), above). The Member has submitted a family travel nomination form to the Department, nominating De facto Partner K. Applying the definition of 'surviving spouse or de facto partner', De facto Partner K will be entitled to travel under the Life Gold Pass Act.

586 Subitem 48(5) provides that a person who was a 'widow' or 'widower' for the purposes of the Life Gold Pass Act prior to the amendments is taken to be the 'surviving spouse or de facto partner'.

Parliamentary Entitlements Act 1990

587 The Parliamentary Entitlements Act 1990 provides an entitlements framework, which enables Senators and Members to effectively represent their constituents and efficiently undertake parliamentary, electorate and/or official business.

Item 49

588 This item inserts into section 3 of the Parliamentary Entitlements Act a '(1)' before the words 'In this Act' as a consequence of amendments made by Item 52.

Items 50 and 52

589 Section 3 of the Parliamentary Entitlements Act currently provides that 'dependent child', in relation to a Senior Officer, means:

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a person under 16 who is in the custody, care and control of the Officer or is a person to whom the Officer has access,
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a person under 16 who is wholly or substantially in the care and control of the Officer where no other person has the custody, care and control of the person, or
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a person who is at least 16 but under 25, receiving full-time education at a school, college or university, and wholly or substantially dependent upon the Officer.

590 While the non-biological same-sex parent of a child who is a Senior Officer may be able to prove that a child is in their custody, care and control without a parenting order, they are generally assumed not to have custody, care and control of the child. If a Senior Officer in this circumstance does not have parenting order, the only way that a child of a Senior Officer who is aged under 16 can be considered as the dependent child of the Officer is where the child is wholly or substantially in the care and control of the Officer and no other person has the custody, care and control of the child. This imposes a higher burden than that placed on a birth mother and birth father (or adoptive parents) who do not need a parenting order to prove that they have custody, care and control of their children.

591 Item 50 repeals subparagraph (a)(ii) from the definition of 'dependent child' and inserts references to subsections (2) and (3), as outlined in Item 52 below.

592 Item 52 inserts new subsections 3(2) and 3(3) into the Parliamentary Entitlements Act to extend the range of persons aged under 16 who are taken to be the 'dependent child' of a Senior Officer. New subsection 3(2) of the Parliamentary Entitlements Act deems a person aged under 16 to be a 'dependent child' of an adult if:

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the Officer does not have a legal right to custody, care and control of the person, as long as there is no order of a court (such as a family law order) that stops the adult from the legal right to having custody, care and control of the person (paragraph 2(a));
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the person is the product of a relationship the Officer has or had as a couple with another person, whether of the same sex or a different sex (paragraph 2(b)). The reference to the phrase 'product of the relationship' is intended to have the same meaning it has within the meaning of the key definition of 'child' (a description of which can be found in the Key Concepts and Definitions section of this Explanatory Memorandum); and
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the person is in the care and control of the Officer.

593 The effect of this insertion is that a child who is aged under 16 of a non-biological same-sex parent who is a Senior Officer can be recognised as the 'dependent child' of that Officer. This is contingent on the criteria in new subsection 3(2) of the Parliamentary Entitlements Act being met, including that there is no order of a court (such as a family law order) that stops the adult from having the legal right to custody, care and control of the person.

Example J is a Senior Officer and is in a same-sex relationship with her de facto partner C (who is not a Senior Officer). During the relationship, J and C decide that C will undergo an artificial conception procedure using gametes from C and a donor. The procedure takes place and C gives birth to R. While R is the biological child of C, he is not the biological child of J. Further, R lives with J and C and is in the care and control of J.R will be considered to be J's dependent child for the purposes of the Parliamentary Entitlements Act. This would continue to be the case even if the relationship between J and S were to break down at a later time.

594 Subparagraph (a)(iii) of the definition of 'dependent child' provides that a person under 16 is a 'dependent child' in relation to a Senior Officer, if he or she meets the criteria in new subsection 3(3) of the Parliamentary Entitlements Act. The relevant criteria are that:

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there is no person who has the custody, care and control of the child; and
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the child is not a dependent child of a Senior Officer because the child is covered by subsection 3(2); and
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there is no other person in relation to whom, if they were a Senior Officer, the child would be a dependent child because of being covered by subsection 3(2); and
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the child is wholly or substantially in the care and control of the Senior Officer.

Example T is a Senior Officer and has de facto partner H. H has a child, S, from a previous relationship (and his previous partner is deceased). T is not biologically related to S and S is not the product of the relationship between T and H. Therefore, S is not a dependent child for the purposes of paragraph (a) (ie T does not have the 'custody, care and control' of S) or paragraph (b) (as subsection (2) is not satisfied, given S is not a product of the relationship between T and H).H dies. No-one has the custody, care and control of S (both biological parents, i.e S and his previous partner, are deceased). As H is not a Senior Officer and is deceased, paragraphs (3)(b) and 3(c) do not apply. S is substantially in the care and control of T. Therefore, paragraph (3) is satisfied and S is T's dependent child for the purposes of the Parliamentary Entitlements Act.

Item 51

595 The current definition of 'spouse' in section 3 of the Parliamentary Entitlements Act discriminates against same-sex couples, as only opposite-sex de facto couples and married couples are recognised for the purposes of the Parliamentary Entitlements Act.

596 This item replaces the definition of 'spouse' in section 3 of the Parliamentary Entitlements Act with a new definition that provides that a 'spouse' includes a de facto partner of a member within the meaning of the key definition of 'de facto partner' in the Acts Interpretation Act. A description of the key definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Parts 2, 3 and 4-Superannuation amendments

Superannuation Act 1976

597 The Superannuation Act 1976 establishes the superannuation scheme, known as the Commonwealth Superannuation Scheme (CSS). The scheme has been closed to new members since 1 July 1990. The Superannuation Act specifies the circumstances where a member is required or permitted to make contributions. The circumstances include where a member is on a period of unpaid maternity or parental leave.

598 If Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 has commenced at the time this Bill receives Royal Assent, the Superannuation Act will be amended by the amendments contained in Part 2 and Part 3 of Schedule 7 to this Bill.

599 If Schedule 1 Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 has not commenced at the time this Bill receives Royal Assent, the Superannuation Act will be amended by the amendments contained in Part 2 and Part 4 of Schedule 7 to this Bill.

Item 55

600 This item provides that the amendments made by Schedule 7 (whether Parts 2, 3 or 4) only apply in respect of leave that commences on or after these amendments commence.

Amendments if Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 has commenced at the time this Act receives Royal Assent

Items 53 and 56

601 Section 51 of the Superannuation Act currently provides various rules relating to whether a member is, or is not, permitted or required to contribute during a period of leave without pay exceeding 12 weeks.

602 Paragraph 51(6)(a) of the Superannuation Act provides that where a member is on leave without pay for reasons in relation to the birth of a child of the person, or of the spouse of the person, the provisions of section 51 do not apply. This is because contributions relating to leave without pay of this type are covered by section 51A of the Superannuation Act, which provides that a member on this type of leave can elect to make contributions.

603 Item 53 amends paragraph 51(6)(a) of the Superannuation Act by inserting a reference to a de facto partner within the meaning of the Acts Interpretation Act. The term 'de facto partner' is described in the Key Concepts and Definitions section of this Explanatory Memorandum. The amendment will expand paragraph 51(6)(a) so that the provisions of section 51 will not apply to a member who is on unpaid leave related to the birth of a child of their de facto partner.

604 Item 56 inserts a new subsection 51(7) into the Superannuation Act. The effect of this amendment is to extend the meaning of child for the purposes of paragraph 51(6)(a) to include a child who is the product of a relationship the person has or had with a partner (whether of the same sex or a different sex). This incorporates elements of the key definition of 'child', which is described in the Key Concepts and Definitions section of this Explanatory Memorandum.

605 Item 56 also inserts a note at the end of new subsection 51(7) to provide that subsection 3(10) of the Superannuation Act is relevant to working out if a child is the product of the relationship for the purposes of subsection 51(7).

Items 54 and 57

606 Section 51A of the Superannuation Act provides that a member who is on unpaid maternity or parental leave is not required to pay contributions during a period of leave unless he or she has elected to pay contributions in respect of the whole or a part of the period of leave.

607 Item 54 amends subparagraph 51A(1)(b)(i) of the Superannuation Act by inserting a reference to a de facto partner within the meaning of the Acts Interpretation Act. The term 'de facto partner' is described in the Key Concepts and Definitions section of this Explanatory Memorandum. The effect of this amendment will be to expand paragraph 51A(1)(b) to allow a member who is on leave without pay related to the birth of a child of their de facto partner to elect to continue to pay contributions during the period of that leave.

608 Item 57 inserts a new subsection 51A(8) into the Superannuation Act. The effect of the amendment is to extend the meaning of child for the purposes of subparagraph 51A(1)(b)(i) to include a child who is the product of a relationship the person has or had with a partner (whether of the same sex or a different sex). This incorporates elements of the key definition of 'child', a description of which can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

609 Item 57 also inserts a note at the end of new subsection 51A(8) to provide that subsection 3(10) of the Superannuation Act is relevant to working out if a child is the product of the relationship for the purposes of subsection 51A(8).

Amendments if Schedule 1 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 has not commenced at the time this Act receives Royal Assent

Items 58 and 60

610 These items will amend sections 51 and 51A of the Superannuation Act if Schedule 1 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 has not commenced at the time this Act receives Royal Assent.

611 Items 58 and 60 insert new subsections 51(7) and 51A(8) into the Superannuation Act to extend the meaning of child for the purposes of paragraph 51(6)(a) and subparagraph 51A(1)(b)(i) to a child within the meaning of the key definition of 'child'. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 59 and 61

612 These items will, on commencement of Schedule 1 of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 , repeal subsections 51(7) and 51A(8) as inserted by Items 58 and 60 respectively and substitute new subsection 51(7) and 51A(8) and two notes. The new subsections will extend the meaning of child for the purposes of paragraph 51(6)(a) and subparagraph 51A(1)(b)(i) to include a child who is the product of a relationship the person has had with a partner (whether of the same sex or a different sex). This incorporates elements of the key definition of 'child', which is described in the Key Concepts and Definitions section of this Explanatory Memorandum.

613 The Same - Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 will insert new subsection 3(10) into the Superannuation Act, which includes other elements contained in the key definition of 'child'. Item 61 inserts a note at the end of new subsection 51A(8) of the Superannuation Act providing that subsection 3(10) of the Superannuation Act is relevant to working out if a child is the product of the relationship for the purposes of subsection 51A(8).


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