House of Representatives

Explanatory Memorandum

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

Schedule 8 - Foreign Affairs and Trade amendments

614 This Schedule contains amendments to the following Acts within the Foreign Affairs and Trade portfolio to remove differential treatment of same-sex couples and their children:

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Australian Passports Act 2005

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Export Market Development Grants Act 1997 , and

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Trade Representatives Act 1933 .

Australian Passports Act 2005

615 The Australian Passports Act 2005 (the Passports Act) provides for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.

616 The amendments to the Passports Act will extend the range of documents that will be accepted as authoritative to authenticate the name of a person seeking an Australian travel document, to include a certificate, entry or record relating to the registration of a relationship (including a same-sex relationship) that has been issued or made by the Registrar of births, deaths and marriages of a State or Territory.

Item 1

617 This item inserts a new paragraph 53(3)(ca) into the Passports Act to allow a name on a certificate, entry or record relating to the registration of a relationship to be recognised as a form of document for subsection 53(3). This will extend the range of documents the Passports Act will accept as authoritative to authenticate the name of a person seeking an Australian travel document. Australian travel document is defined by subsection 6(1) to mean an Australian passport or a travel-related document.

618 In order for a certificate, entry or record to be accepted for this purpose, it must meet the requirements in subparagraphs 53(3)(ca)(i)-(iii). These subparagraphs require that the certificate, entry or record must:

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be issued or made under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act

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relate to a kind of relationship prescribed for the purposes of section 22B of the Acts Interpretation Act, and

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be issued or made by a Registrar of births, deaths and marriages of the State or Territory concerned.

619 The phrase 'certificate, entry or record' is used to allow for future electronic methods of access to registration information. This is consistent with the approach adopted to the recognition of name change and marriage certificates in paragraphs 53(3)(c) and (d) of the Passports Act.

Export Market Development Grants Act 1997

620 The Export Market Development Grants Act 2005 (the EMDG Act) provides an assistance scheme under which small and medium Australian exporters committed to and capable of seeking out and developing export business are repaid part of their expenses incurred in promoting those products. Determination of whether a person is a 'relative' of another person is relevant to the assessment of allowable expenses for overseas marketing visits.

621 The determination of whether a person is a 'relative' of another person under the EMDG Act is relevant to the assessment of allowable expenses for overseas marketing visits. The amendments provide for the payment of expenses in a manner that is not discriminatory on the basis of sexual preference.

Items 2 - 5

622 A list of terms defined in Part 9 of the EMDG Act appears immediately after the contents page of the Act. These items amend the EMDG Act to reflect the insertion and repeal of definitions in that Part of the Act by this Schedule.

623 The terms which will be inserted into this list as a consequence of definitions inserted in subsection 107(1) are:

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'child' (inserted by Item 7 of this Schedule)

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'de facto partner' (inserted by Item 8 of this Schedule), and

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'parent' (inserted by Item 10 of this Schedule).

624 The term 'de facto spouse' will be removed from this list as a consequence of the repeal of the definition of this term by Item 9 of this Schedule.

Item 6

625 This item amends section 107 of the EMDG Act as a consequence of the addition of a new subsection (2) in that section by Item 12 of this Schedule.

Item 7

626 The item inserts the key definition of 'child' into subsection 107(1) of the EMDG Act.

627 This term is used in new subsection 107(2) inserted by Item 12 of this Schedule, and in the definition of 'parent' inserted by Item 10 of this Schedule. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 8

628 This item inserts the key definition of 'de facto partner' into subsection 107(1) of the Act. This definition replaces and expands the class of de facto relationships recognised in the EMDG Act and puts beyond doubt the application of the definition to both same-sex and opposite-sex de facto relationships. A description of the definition of 'de facto partner' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 9

629 This item repeals the definition of 'de facto spouse' in subsection 107(1) of the EMDG Act as a consequence of the insertion of the definition of 'de facto partner' by Item 8 of this Schedule.

Item 10

630 This item inserts the key definition of 'parent' into subsection 107(1) of the EMDG Act in order to expand the class of persons who are recognised as parents of a child for the purposes of the EMDG Act. This definition ensures that both members of a couple are recognised as parents of a child where that child is the product of their relationship, where the child comes within the definition of 'child' inserted into subsection 107(1) by Item 5 of this Schedule.

631 A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 11

632 This item replaces the term 'de facto spouse' with 'de facto partner' in the definition of 'spouse' in section 107 of the EMDG Act as a consequence of the amendments in Items 8 and 9 of this Schedule.

Item 12

633 The term 'relative' (in relation to an individual) is defined in section 107 of the EMDG Act to include, for the purposes of the EMDG Act, a spouse of the individual or any individual who is (or is a spouse of) a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of that individual.

634 This item inserts a new subsection 107(2) into the EMDG Act in order to expand the definition of 'relative' to ensure that relationships of the kinds included in the section 107 definition of 'relative' may be traced through same-sex relationships.

635 Subsection 107(2) will provide that relationships may be traced to or through:

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a de facto partner of an individual (within the definition inserted by Item 8 of this Schedule)

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an exnuptial or adoptive child of an individual, or

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a person who is related to the first individual because of the definitions of child and parent inserted by Items 7 and 10 of this Schedule.

636 Relationships between a child and the relatives of a person who is his or her parent through adoption or because of the definition of 'child' inserted by Item 7 of this Schedule are intended to be assessed in the same way as if the child were the biological child of that person.

637 A description and examples of the operation of the tracing rule can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 13

638 This item provides that the amendments made to the EMDG Act by this Schedule apply in relation to grants in respect of a grant year commencing on or after 1 July 2009.

Trade Representatives Act 1933

639 The Trade Representatives Act 1933 provides for the appointment of Trade Representatives for the Commonwealth and for other purposes.

640 The amendments to the Trade Representatives Act clarify that in relation to payment of allowances and pecuniary benefits to a family of a Trade Representative or Trade officer, a same-sex de facto partner and a child who is the product of a same-sex relationship will be members of a person's family. The amendments generally rely upon the definition of 'de facto partner' proposed to be inserted into the Acts Interpretation Act.

Item 14

641 Section 11 allows the Minister to make a determination of the terms and conditions of appointment of a Trade Representative and other officers that may be appointed by a Trade Representative ('relevant persons'). The determination may provide for payment of allowances and pecuniary benefits to and in respect of members of the families of relevant persons.

642 Subsection 11(11) of the Trade Representatives Act defines 'relevant person' for the purposes of section 11 of the Trade Representatives Act.

643 This item repeals subsection 11(11) in order to insert a new subsection (11) expanding the ordinary meaning of 'members of a person's family'. It re-enacts existing subsection (11) as new subsection (12), and adds to it the key definition of 'child'.

644 New subsection 11(11) is intended to expand the ordinary meaning of 'family' to ensure there is no discrimination against same-sex couples and their children. The subsection provides that a person's family includes:

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a person's 'de facto partner' within the meaning of the Acts Interpretation Act (see the Key Concepts and Definitions section of this Explanatory Memorandum for a description of this concept)

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someone who is the child of a person (or of whom a person is a child) because of the definition of 'child' in subsection 11(12) inserted into the Trade Representatives Act by this item, and

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anyone else who would be a member of the person's family if someone mentioned in paragraphs 11(11)(a) or (b) is taken to be a member of the person's family.

645 The amendments in this section are not intended to exclude existing family members from being a member of a person's family. New subsection 11(12) provides definitions of 'relevant person' and 'child' for the purposes of section 11 of the Trade Representatives Act. The definition of 'relevant person' mirrors the definition of 'relevant person' currently contained in subsection 11(11) of the Trade Representatives Act. In addition, subsection 11(12) contains the key definition of 'child', to ensure that a child who is the product of a relationship that two people had as a couple is recognised. This definition of child is used in new subsection 11(11) to broaden the definition of 'family' as described above. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.