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 9 - Health and Ageing amendments

646 This Schedule contains amendments to the following Acts within the Health and Ageing portfolio to remove differential treatment of same-sex couples and their children:

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Aged Care Act 1997
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Health Insurance Act 1973
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National Health Act 1953
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Prohibition of Human Cloning for Reproduction Act 2002 , and
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Research Involving Human Embryos Act 2002 .

Part 1-Amendments commencing on the day after Royal Assent

Prohibition of Human Cloning for Reproduction Act 2002

647 The object of the Prohibition of Human Cloning for Reproduction Act 2002 (the Prohibition of Cloning Act) is to address concerns, including ethical concerns, about scientific developments in relation to human reproduction and the utilisation of human embryos by prohibiting certain practices.

Item 1

648 The current definition of 'spouse' in subsection 8(1) of the Prohibition of Cloning Act discriminates against same-sex couples because the common understanding of the word 'spouse' is confined the opposite-sex partner of a person.

649 This item replaces the definition of 'spouse' in subsection 8(1) of the Prohibition of Cloning 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. This will expand the class of individuals who are able to consent to dealings with excess embryos to include a same-sex partner of a person referred to in the Prohibition of Cloning Act.

Research Involving Human Embryos Act 2002

650 The object of the Research Involving Human Embryos Act 2002 (the Human Embryos Act) is to address concerns, including ethical concerns, about scientific developments in relation to human reproduction and the utilisation of human embryos by regulating activities that involve the use of certain human embryos created by assisted reproductive technology or by other means.

Item 2

651 The current definition of 'spouse' in subsection 7(1) of the Human Embryos Act discriminates against same-sex couples because the common understanding of the word 'spouse' is confined the opposite-sex partner of a person.

652 This item replaces the definition of 'spouse' in subsection 7(1) of the Human Embryos 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. This will expand the class of individuals who are able to consent to dealings with excess embryos to include a same-sex partner of a person referred to in the Human Embryos Act.

Part 2-Amendments commencing on 1 January 2009

Health Insurance Act 1973

653 The Health Insurance Act 1973 for the most part, regulates the payment of Medicare benefits, including rules concerning persons who are eligible for Medicare benefits, the arrangements for safety net entitlements, and rules in relation to the provision of services that attract Medicare benefits (for example, in relation to diagnostic imaging and pathology services).

654 The key amendments to the Health Insurance Act will:

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provide for same-sex de facto partners and their dependent children, including children who are the product of their relationship, to register as a family for the purposes of the Medicare safety nets, thereby removing discrimination against same-sex couples and their children, and
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clarify that couples in same-sex relationships and the relatives of such persons will be considered to be 'connected to' a requester or provider of pathology or diagnostic imaging services for the purposes of the prohibited practices provisions of Part IIBA of the Health Insurance Act, thereby ensuring the consistent application of Part IIBA to persons in same-sex and opposite-sex relationships.

Item 3

655 Subsection 3(1) of the Health Insurance Act contains a definition of 'Australian resident' for the purposes of the Health Insurance Act. Sub-subparagraph (f)(v)(A) of the definition of 'Australian resident' makes reference to a person in respect of whom 'another person, being the person's spouse, parent or child, is an Australian citizen or the holder of a permanent visa under [the Migration Act 1958 ]'. This item provides that each of the terms 'spouse', 'parent' and 'child' appearing in sub-subparagraph f(v)(A) have the same meaning as they do in the Migration Act 1958 .

Item 4

656 This item inserts subsection 3(18) into the Health Insurance Act. New subsection 3(18) provides that someone cannot be considered to be the product of a relationship for the purposes of the Health Insurance Act, unless they:

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are the biological child of at least one person in the relationship, or
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are born to a woman in the relationship.

657 This insertion incorporates the elements of the key definition of 'child', inserted by Items 6, 8 and 14 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 5

658 Subsection 10AA(6) of the Health Insurance Act currently provides that a person is not entitled to be simultaneously treated as a member of more than one registered family unless the person is a child and members of more than one registered family jointly share the right to have, and to make decisions concerning, the daily care and control of the child.

659 This item replaces paragraph 10AA(6)(b) of the Health Insurance Act with a new paragraph 10AA(6)(b). The effect of this amendment is that a person is not entitled to be simultaneously treated as a member of more than one registered family unless the person is a child and the person is a dependent child in relation to persons in more than one registered family. This amendment aligns the definitions in paragraph 10AA(6)(b) with the definition of 'dependent child' in subsection 10AA(7).

Item 6

660 The definition of 'dependent child' in subsection 10AA(7) of the Health Insurance Act currently provides that 'dependent child', in relation to any person, means:

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a child aged under 16 who is in the custody, care and control of that person
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a child aged under 16 who is wholly or substantially in the care and control of the person where no other person has the custody, care and control of the child, or
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a student child who is wholly or substantially dependent on the person.

661 While the non-biological same-sex parent of a child may be able to prove that a child is in their custody, care and control without an order of the court (such as a parenting order), they are generally assumed not to have custody, care and control of the child. If a person does not have a parenting order, the only way that a child who is aged under 16 can be considered as the dependent child of the person is where the child is wholly or substantially in the care and control of the person and no other person has the custody, care and control of the child. This imposes a higher burden than that placed on the 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.

662 This item repeals the current definition of 'dependent child' and inserts a new definition of 'dependent child' to extend the range of persons aged under 16 who are taken to be the 'dependent child' of a person for the purposes of determining who is a 'registered family' for the purposes of the Health Insurance Act. The new definition of 'dependent child' inserted into subsection 10AA(7) of the Health Insurance Act retains the existing definition of 'dependent child' and includes a provision that deems a child aged under 16 to be a 'dependent child' of a person if:

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the child is a child of the person 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)
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the child is in the care and control of the person, and
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the person does not have a legal right to custody, care and control of the child, as long as there is no order of a court (such as a family law order) that stops the adult from having the legal right to having custody, care and control of the child.

663 The effect of this insertion is that a child, who is aged under 16, of a non-biological same-sex parent can be recognised as the 'dependent child' of that person. This is contingent on the criteria in new paragraph 10AA(7)(b) of the Health Insurance 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 having custody, care and control of the person.

Example J is in a same-sex relationship with her de facto partner C. 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. This could continue to be the case even if the relationship between J and C were to break down at a later time.

664 New paragraph (c) of the definition of 'dependent child' provides that a 'dependent child' in relation to a person includes a child under the age of 16 years who is not otherwise a dependent child under paragraphs (a) or (b) of the definition of 'dependent child' in subsection 10AA(7), and who is wholly or substantially in the care and control of the person. This provision replicates an existing provision.

Example T 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 subparagraph (b)(ii) 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 H and his previous partner, are deceased). S is substantially in the care and control of T. Therefore, paragraph (c) is satisfied and S is T's dependent child.

665 This item also inserts a note at the end of the new definition of 'dependent child' in subsection 10AA(7) to provide that subsection 3(18) of the Health Insurance Act is relevant to working out if a child is the product of the relationship for the purposes of subparagraph (b)(ii) of the definition of 'dependent child'.

Item 7

666 Subsection 10AA(7) of the Health Insurance Act currently provides that, in relation to a person, a 'spouse' is:

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a person who is legally married to, and is not living, on a permanent basis, separately and apart from, that person, and
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a de facto spouse of that person.

667 This item repeals paragraph (b) of the current definition of 'spouse' in subsection 10AA(7) of the Health Insurance Act and substitutes a new paragraph (b) providing that 'spouse', in relation to a person, means 'a de facto partner of the person who is not living, on a permanent basis, separately and apart from the person'. This amendment has been made as a consequence of amendments made to the National Health Act 1953 by Items 15, 16 and 17 of this Schedule. The amendment also clarifies that to be a 'spouse' under the Medicare safety net provisions, de facto partners must, like legally married persons, not be living, on a permanent basis, separately and apart from each other.

Item 8

668 This item repeals the definition of 'child' in subsection 23DZZID(1) of the Health Insurance Act and inserts elements of the key definition of 'child' to extend who can be considered a child for the purposes of Part IIBA of the Health Insurance Act. The definition does not limit who can be considered to be a parent of a person for the purposes of Part IIBA of the Health Insurance Act which deals with prohibited practices in relation to pathology services and diagnostic imaging services.

669 New paragraph (a) of the definition of 'child' provides that a 'child' in relation to a person includes an adopted child or stepchild of the person. This provision replicates the existing provision. New paragraph (b) of the definition of 'child' extends the definition to include a child who is the product of a relationship. This item also inserts a note to provide that subsection 3(18) of the Health Insurance Act (inserted by Item 4 of this Schedule) is relevant to working out if someone is the product of the relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 9

670 This item repeals the definition of 'parent' in subsection 23DZZID(1) of the Health Insurance Act and inserts a new definition, providing that a person is the parent of anyone who is the person's child.

Item 10

671 This item inserts a note at the end of the definition of 'relative' in subsection 23DZZID(1) of the Health Insurance Act to direct the reader to subsection 23DZZID(3) inserted by Item 13 of this Schedule.

Item 11

672 This item amends paragraph (b) of the definition of 'spouse' in subsection 23DZZID(1) of the Health Insurance Act by replacing 'de facto spouse' with 'de facto partner' as a consequence of amendments made to the National Health Act 1953 by Items 15, 16 and 17 of this Schedule.

Item 12

673 This item inserts the key definition of 'step-child' in subsection 23DZZID(1) of the Health Insurance Act. This extends the range of persons who can be considered to be the 'step-child' to include a person who would be the step-child of a person who is the de facto partner of a parent of the child, except that the person and the parent are not legally married. A description of the definition of 'step-child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 13

674 This item inserts new subsection 23DZZID(3) into the Health Insurance Act. Subsection 23DZZID(3) of the Health Insurance Act is a tracing rule that allows relationships because of the definition of 'child' in section 23DZZID to be traced through a person if that person is the child of another person. For example, in relation 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.

Item 14

675 This item inserts the key definition of 'parent' into subsection 46A of the Health Insurance Act to expand who can be considered a parent for the purposes of who is a parent of a child whose name is on the Australian Childhood Immunisation Register. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

National Health Act 1953

676 The National Health Act 1953 contains provisions relating to pharmaceutical, sickness and hospital benefits, and of medical and dental services. Part II of the National Health Act relates to the provision of National health services, including certain vaccination programs. Part VII of the National Health Act concerns the prescribing, supply and access to pharmaceutical benefits, including in relation to persons eligible to receive those benefits, the amounts to be charged, and the arrangements for Pharmaceutical Benefits Scheme (PBS) safety net entitlements.

677 The amendments to National Health Act will allow same-sex de facto partners and their dependent children to access the following benefits which they cannot presently access:

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Pharmaceutical Benefits Scheme (PBS) safety net entitlements as a family
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certain concessional beneficiary entitlements for dependents (other concessional entitlements for dependents flow from other Acts, eg the Social Security Act), and
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provisions applicable to spouse and children of members of a friendly society.

The amendments also clarify that:

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where 'child and 'parent' are defined for certain provisions in the National Health Act, 'child' includes an adoptive child, a stepchild, and someone who would be a stepchild of a person except that the person is not legally married to their de facto partner
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a dependent child of a person's spouse can be a member of the person's PBS safety net family, and
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where the National Health Act sets out criteria for persons dependant on a concessional beneficiary, a child can be 'dependant' if the concessional beneficiary has the whole or substantial care and control of the child and the child is not otherwise a dependent child under the criteria.

Items 15, 16 and 17

678 The definition of 'spouse' in subsection 4(1) of the National Health Act currently includes a 'de facto spouse'. The definition of 'de facto spouse' is a 'person who is living with another person of the opposite sex on a bona fide domestic basis although not legally married to that other person.' This definition discriminates against same-sex couples because the common meaning of 'spouse' is a relationship between a man and a woman and the definition of 'de facto spouse' explicitly excludes same-sex couples.

679 Item 15 inserts a new non-discriminatory definition of 'de facto partner' into subsection 4(1) of the National Health Act. The new definition provides that a person is the 'de facto partner' of another person (whether of the same sex or different sexes) if they:

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have a relationship that is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act, or
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live with each other on a genuine domestic basis although not legally married to each other.

680 Evidence of registration of a relationship under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act is sufficient to satisfy the requirements for paragraph (a) of the definition of 'de facto partner' in subsection 4(1) of the National Health Act.

681 Item 16 repeals the definition of 'de facto spouse' in subsection 4(1) of the National Health Act because it is made redundant by the insertion of the definition of 'de facto partner'.

682 Item 17 replaces 'de facto spouse' in the definition of 'spouse' with 'de facto partner' as a consequence of Items 15 and 16 of this Schedule to provide that a 'spouse' includes a de facto partner.

Item 18

683 This item inserts subsection 4(6) into the National Health Act. New subsection 4(6) provides that someone cannot be considered to be the product of a relationship for the purposes of the National Health Act, unless they:

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are the biological child of at least one person in the relationship, or
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are born to a woman in the relationship.

This is relevant to the elements of the key definition of 'child', inserted by Items 19, 21, 23, and 26 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 19

684 This item inserts a new definition of 'parent' into subsection 9BA(7) of the National Health Act. The definition expands the classes of person that may be taken to be a parent of a child for the purposes of the National HPV Vaccination Program Register. The definition does not limit who can be considered to be a parent of a person for the purposes of section 9BA(7) of the National Health Act.

685 New paragraph (a) of the definition of 'parent' provides that someone is the parent of a child if the child is the stepchild or adoptive child of the person. New paragraph (b) of the definition of parent extends the definition of 'parent' to include someone who would be the parent of a child if the child would be the stepchild of the person except that the person is not legally married to the person's partner. This includes stepchildren of both same-sex and opposite-sex de facto couples.

686 New paragraph (c) of the definition of 'parent' extends the definition to include the parent of a child who is the product of a relationship. New paragraph (c) is qualified by providing that for a 'child' to be the product of a relationship, the child must be the biological child of at least one person in the relationship, or born to a woman in the relationship. These are 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.

687 This item also inserts a note indicating that subsection 4(6) of the National Health Act (inserted by Item 18 of this Schedule) is relevant to working out if someone is the product of the relationship. A description of the key definition of 'child' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Item 20

688 This item inserts a note at the end of the definition of 'child' in subsection 84(1) of the National Health Act to direct the reader to subsection 84(3B) inserted by Item 21 of this Schedule.

Item 21

689 This item inserts new subsection 84(3B) into the National Health Act to clarify and extend the meaning of 'child' in subsection 84(1) of the National Health Act. Subsection 84(3B) does not limit the definition of 'child' in subsection 84(1) of the National Health Act for the purposes of Part VII of the National Health Act.

690 New paragraph (a) of the definition of 'child' provides that a 'child' in relation to a member of a friendly society includes a stepchild or adopted child of the member. New paragraph (b) of the definition of child extends the definition of 'child' to include someone who would be the stepchild of the member if the member and their de facto partner were married. This includes stepchildren of both same-sex and oppositee-sex de facto couples.

691 New paragraph (c) of the definition of 'child' extends the definition to include a child who is the product of a relationship the member of a friendly society has or had as a couple with another person (whether of the same sex or a different sex). New paragraph (c) is qualified by subsection 4(6) of the National Health Act providing that for a 'child' to be the product of a relationship, the child must be the biological child of at least one person in the relationship, or born to a woman in the relationship. These are 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.

692 This item also inserts a note indicating that subsection 4(6) of the National Health Act (inserted by Item 18 of this Schedule) is relevant to working out if someone is the product of the relationship.

Item 22

693 This item corrects a grammatical error in paragraph 84(4)(b) of the National Health Act by replacing 'of the spouse' with 'or the spouse'.

Item 23

694 Paragraphs 84(4)(a) and 84(4)(b) of the definition of 'dependant' in subsection 84(4) of the National Health Act currently provides that a 'dependant', in relation to a person to whom paragraph (c) or (d) of the definition of 'concessional beneficiary' applies is a person who is an Australian resident within the meaning of the Health Insurance Act and is:

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the spouse of the person, or
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a child under the age of 16 years who is in the custody, care and control of the person or the spouse of the person.

695 While the non-biological same-sex parent of a child 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. This imposes a higher burden than that placed on the 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.

696 This item inserts paragraphs 84(4)(ba) and 84(4)(bb) into the definition of 'dependant' in subsection 84(4) of the National Health Act to amend the meaning of dependant in relation to the relevant classes of concessional beneficiary. The insertion of these paragraphs extends the range of persons aged under 16 who are taken to be a 'dependant' of a person to whom paragraph (c) or (d) of the National Health Act definition of concessional beneficiary applies . New paragraph 84(4)(ba) provides that a reference to a dependant (for the relevant classes of concessional beneficiary) includes a reference to a child under the age of 16 years:

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who is a child of the person 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)
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who is in the care and control of the person or their spouse, and
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for whom the person does not have a legal right to custody, care and control, 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 child.

The effect of this insertion is that a child, who is aged under 16, of a non-biological same-sex parent can be recognised as a 'dependant' in relation to certain classes of concessional beneficiary for the purposes of Part VII of the National Health Act.

697 This is contingent on the other criteria in the definition of 'dependant' in paragraph 84(4) of the National Health Act being met. This includes being an Australian resident with the meaning of the Health Insurance Act, and the requirement in subparagraph 84(4)(ba)(i), that there is no order of a court (such as a family law order) that stops the adult from having the legal right to having custody, care and control of the person.

Example J is in a same-sex relationship with her de facto partner C. 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 child. This could continue to be the case even if the relationship between J and C were to break down at a later time.

698 New paragraph 84(4)(bb) of the National Health Act provides that a 'dependant', in relation to the relevant classes of concessional beneficiary, includes a child under the age of 16 years who is not otherwise a dependant child under paragraphs 84(4)(b) or (ba) and who is wholly or substantially in the care and control of the concessional beneficiary.

Example T 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 dependant child for the purposes of paragraph (b) (ie T does not have the 'custody, care and control' of S) or paragraph (ba) (as subparagraph (ba)(ii) 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 H and his previous partner, are deceased). S is substantially in the care and control of T. Therefore, paragraph (c) is satisfied and S is T's dependant child.

Item 24

699 This item inserts a note at the end of subsection 84(4) to indicate that subsection 4(6) of the National Health Act (inserted by Item 18 of this Schedule) is relevant to working out whether someone is the product of the relationship for the purposes of subparagraph 84(ba)(ii) of the National Health Act.

Item 25

700 Division 1A of the National Health Act deals with safety net concession cards and pharmaceutical benefits entitlement cards. Section 84B of the National Health Act provides that for the purposes of Division 1A, a person's spouse and any dependent child of the person are members of a person's family.

701 This item inserts a reference to the dependent child of a person's spouse into paragraph 84B(1)(b) of the National Health Act to extend who can be considered to be a members of a person's family for the purposes of Division 1A of the National Health Act. This extends the persons who may be included as a member of a person's family for the purposes of PBS safety net entitlements so that a dependent child of a person's spouse may be included as part of a family for PBS safety net purposes.

Item 26

702 The definition of 'dependent child' in subsection 84B(4) of the National Health Act currently provides that 'dependent child', in relation to any person, means:

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a child aged under 16 who is in the custody, care and control of that person
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a child aged under 16 who is wholly or substantially in the care and control of the person where no other person has the custody, care and control of the child, or
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a student child who is wholly or substantially dependent on the person.

703 While the non-biological same-sex parent of a child 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 person does not have parenting order, the only way that a child who is aged under 16 can be considered as the dependent child of the person is where the child is wholly or substantially in the care and control of the person 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.

704 This item repeals the current subsection 84B(4) definition of 'dependent child' and replaces it to extend the range of persons aged under 16 who are taken to be the 'dependent child' of a person for the purposes of determining who is a member of a family for the PBS safety net. The new definition of 'dependent child' inserted into subsection 84B(4) of the National Health Act retains the existing definition of 'dependent child' and includes a provision that deems a child aged under 16 to be a 'dependent child' of a person if:

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the child is a child of the person 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)
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the child is in the care and control of the person, and
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the person does not have a legal right to custody, care and control of the child, 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 child.

The effect of this insertion is that a child, who is aged under 16, of a non-biological same-sex parent can be recognised as the 'dependent child' of that person. This is contingent on the criteria in new paragraph 84B(4)(b) of the National Health 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 having custody, care and control of the person.

Example J is in a same-sex relationship with her de facto partner C. 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. This could continue to be the case if the relationship between J and C were to break down at a later time and R lives with J following the break down of the relationship.

New paragraph (c) of the definition of 'dependent child' provides that a 'dependent child' in relation to a person includes a child under the age of 16 years who is not otherwise a dependent child under paragraphs 84B(4)(a) or (b) and who is wholly or substantially in the care and control of the person. This provision replicates an existing provision.

Example T 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 subparagraph (b)(ii) 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 H and his previous partner, are deceased). S is wholly and substantially in the care and control of T. Therefore, paragraph (c) is satisfied and S is T's dependent child.

705 This item also inserts a note at the end of the new definition of 'dependent child' in subsection 84B(4) of the National Health Act to indicate that subsection 4(6) of the National Health Act is relevant to working out if a child is the product of the relationship for the purposes of subparagraph (b)(ii) of the definition of 'dependent child'.

706 The subsection 84B(4) definition of 'dependent child' also applies to provisions concerning eligibility for access to PBS subsidized medicines while overseas. Those eligibility provisions are set out at sections 86 and 86A of the National Health Act and refer to the section 84B(4) definition of 'dependent child'.

Item 27

707 Subsection 84B(4) of the National Health Act provides that, in relation to a person, a spouse is

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a person who is legally married to, and is not living, on a permanent basis, separately and apart from, that person, and
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a de facto spouse of that person.

708 The definition of 'de facto partner' in subsection 4(1) of the National Health Act (inserted by Items 10, 11 and 12 of this Schedule) does not require that the persons be living together. The effect of the insertion of the definition of 'de facto partner' is that subsection 84B(4) will discriminate on the basis of marital status because married people must be living together permanently in order to be considered 'family' for entitlement purposes.

709 This item corrects this potential anomaly by including a requirement for de facto partners to not be living separately and apart from each other on a permanent basis. This requirement will exist for de facto partners regardless of whether they are de facto partners because they:

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have a relationship that is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act (whether of the same sex or different sexes), or
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live with each other on a genuine domestic basis (whether of the same sex or different sexes) although not legally married to each other.

Item 28

710 Paragraph 84B(5)(a) of the National Health Act provides that a person who is legally married is not to be taken to be living separately and apart from their partner on a permanent basis only because of the illness or infirmity of either or both of them. This allows a legally married couple to live apart only due to illness or infirmity (eg one partner living in a nursing home) and still be considered to be spouses.

711 This item amends paragraph 84B(5)(a) of the National Health Act to also allow de facto partners who have a relationship that is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act (whether of the same sex or different sexes) to live apart only due to illness or infirmity and be considered to be spouses.

Item 29

712 Paragraph 84B(5)(b) of the National Health Act provides that a person is not to be taken to have ceased to live with another person on a de facto basis if they are living apart only because of the illness or infirmity of either or both of them. This allows de facto partners who have ceased to live together only due to illness or infirmity (eg one partner living in a nursing home) to continue to be considered to be spouses.

713 This item amends paragraph 84B(5)(b) to replace the phrase 'a person is not taken to have ceased to live with another person (the person's partner)' with 'a person who is the spouse of another person (the person's partner) under paragraph (c) of the definition [of spouse] is not taken to have ceased to live with the person's partner'. This replicates the existing provision so that in a case where persons who are de facto partners by virtue of paragraph 84B(4)(c) cease to live together only due to illness or infirmity they continue to be considered to be spouses.

Part 3-Amendments commencing on 1 July 2009

Aged Care Act 1997

714 The Aged Care Act 1997 provides for the funding and delivery of, and access to, high quality and affordable residential, community and flexible aged care that meets the needs of all people who require such care, and their carers. The amendments to the Aged Care Act ensures that a member of a same-sex de facto relationship who enter permanent residential aged care are treated equally to members of opposite-sex couples who enter permanent residential aged care.

715 Aged care income and assets testing will, in future, be applied to these couples, rather than their being treated as individuals. In addition, children of the relationship will be taken into account for income and assets testing purposes. The amount of a person's aged care fees and accommodation costs are determined based on the value of his or her income and assets.

716 In the assets test, a person who is a member of a couple is taken to have 50% of the couple's combined assets. In the income test, half of the couple's combined ordinary income is taken to be the person's income. However, if one member of a couple is in receipt of an income support payment, the full amount of that payment is taken to be that person's income for the purpose of the income test.

Item 30

717 This item inserts a new definition of 'child' into subsection 44-11(1) of the Aged Care Act to extend the range of persons who can be considered as the child of a person for the purposes of the definition of 'close relation' in subsection 44-11(1). This definition is used in determining the value of a person's assets, working out the maximum amount of accommodation bond or accommodation charge a person is eligible to pay, and determining whether a person is eligible to be a 'supported resident', a 'concessional resident' or an 'assisted resident' under the Aged Care Act.

718 Paragraph (a) of the definition of 'child' provides that a 'child' in relation to a person includes a stepchild or adopted child of the person. Paragraph (b) of the definition of 'child' extends the definition of 'child' to include someone who would be the stepchild of the person, if the person was legally married to the person's partner. This is intended to ensure that the child of the person's partner is included as a 'child' of the person, notwithstanding that the child could not be a stepchild of the person because the person and the person's partner were not legally married (or in the case of same-sex couples, could not be legally married).

719 Paragraph (c) of the definition of 'child' extends the definition to include a child who is the product of a relationship. Paragraph (c) is qualified by providing that for a 'child' to be the product of a relationship, the child must be the biological child of at least one person in the relationship, or born to a woman in the relationship. These are 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.

720 Paragraph (d) of the definition of 'child' provides that the Residential Care Subsidy Principles made under subsection 96-1(1) of the Aged Care Act may specify a class of persons. If the person is included in this class of persons, they will be a 'child' for the purposes of the Aged Care Act.

Item 31

721 This item amends paragraph (a) of the definition of 'close relation' in subsection 44-11(1) of the Aged Care Act to replace the gender-specific terms 'the father or mother' with the gender-neutral term 'a parent'. This allows a person who is a parent of a child within the meaning of the key definition of 'parent' inserted by Item 35 of this Schedule to be considered a 'close relation' of that person for the purposes of the Aged Care Act.

Item 32

722 This item inserts a note at the end of the definition of 'close relation' in subsection 44-11(1) of the Aged Care Act to direct the reader to subsection 44-11(5) inserted by Item 23 of this Schedule.

Items 33 and 34

723 The existing definition of 'member of a couple' in subsection 44-11(1) of the Aged Care Act provides that a person is a 'member of a couple' if they are legally married to another person and are not living separately and apart from the other person on a permanent basis, or if they are living with another person in a marriage-like relationship although not legally married to the other person. This definition discriminates against same-sex couples because a same-sex couple cannot live in a 'marriage-like relationship' as the common meaning of that term is a relationship between a man and a woman which is 'marriage-like'.

724 Item 33 inserts paragraph (aa) of the definition of 'member of a couple' in subsection 44-11(1) of the Aged Care Act which provides that a person is a member of a couple if they

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have a relationship with another person (whether of the same sex or a different sex) that is registered under a law of a State or Territory prescribed for the purposes of subsection 22B of the Acts Interpretation Act, and
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who is not living separately and apart from the other person on a permanent basis.

This allows persons who are registered on a relationship register prescribed for the purposes of subsection 22B of the Acts Interpretation Act to be recognised as a 'member of a couple'. A description of the prescription of relationship registers for the purposes of subsection 22B of the Acts Interpretation Act can be found in the description of the key definition of 'de facto partner' in the Key Concepts and Definitions section of this Explanatory Memorandum.

725 Item 34 amends paragraph (b) of the definition of 'member of a couple' in subsection 44-11(1) of the Aged Care Act by replacing the phrase 'in a marriage-like relationship' with '(whether of the same sex or a different sex) in a de facto relationship'.

726 The effect of these amendments is to ensure that the definition of 'member of a couple' includes a same-sex relationship as well as an opposite-sex relationship for the purposes of determining the value of a person's assets, working out the maximum amount of accommodation bond or accommodation charge the person is eligible to pay, and determining whether a person is eligible to be a 'supported residents', a 'concessional resident' or an 'assisted resident' under the Aged Care Act. The inclusion of same-sex relationships within this definition is not intended to change the treatment of married or opposite-sex de facto couples.

Item 35

727 This item inserts the key definition of 'parent' into subsection 44-11(1) of the Aged Care Act to expand who can be considered a parent for the purposes of the definition of 'close relation' in subsection 44-11(1). The definition of 'close relation' is used for the purposes of determining the value of a person's assets, working out the maximum amount of accommodation bond or accommodation charge a person is eligible to pay, and determining whether a person is eligible to be a 'supported resident', a 'concessional resident' or an 'assisted residents' under the Aged Care Act. A description of the key definition of 'parent' can be found in the Key Concepts and Definitions section of this Explanatory Memorandum.

Items 36 and 37

728 The definition of 'dependent child' in subsection 44-11(2) of the Aged Care Act is used for the purposes of:

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determining the value of a person's assets,
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working out the maximum amount of accommodation bond or accommodation charge the person is eligible to pay, and
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determining whether a person is eligible to be a 'supported resident', a 'concessional resident' or an 'assisted resident' under the Aged Care Act.

729 The definition of 'dependent child' is also used in calculating the amount of income tested fees for a person. The daily income tested reduction is taken to be zero under section 44-22 of the Aged Care Act, as 'approved care recipients, each of whom has a dependent child' is a class of persons specified in paragraph 21.30(1)(d) of the Residential Care Subsidy Principles 1997 for the purposes of paragraph 44-22(1)(c) of the Aged Care Act.

730 The definition of 'dependent child' is also used for calculating the amount of pensioner supplement payable by the Commonwealth under section 44-28 of the Aged Care Act and for calculating the standard resident contribution under sections 58-3 or 58-4 of the Aged Care Act for pre-2008 reform residents not receiving an income support payment. The inclusion of the children of same-sex relationships within the definition of 'dependent child' is not intended to change the treatment of married or opposite-sex de facto couples.

731 Paragraph 44-11(2)(a) of the Aged Care Act provides that a young person is a 'dependent child' of an adult if:

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the adult is legally responsible for the day-to-day care, welfare and development of the young person, or
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the adult is under a legal obligation to provide financial support in respect of the young person, and is not included in a class of people specified for the purposes paragraph 44-11(2)(a)(ii) in the Residential Care Subsidy Principles.

732 Paragraph 44-11(2)(b) of the Aged Care Act provides that to be considered a 'dependent child', the young person must also not be:

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in full-time employment
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in receipt of a social security pension or a social security benefit (within the meaning of the Social Security Act 1991 ), or
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included in a class of people specified in the Residential Care Subsidy Principles.

733 Item 36 inserts a new subparagraph 44-11(2)(a)(ia) into paragraph 44-11(2)(a) of the Aged Care Act. New subparagraph 44-11(2)(a)(ia) provides that a child can be a 'dependent child' of an adult if the adult is covered by new paragraph 44-11(2A)(a) of the Aged Care Act, to be inserted by Item 37 of this Schedule (the child would still need to meet the criteria in paragraph 44-11(2)(b) of the Aged Care Act).

734 Item 37 inserts a new subsection 44-11(2A)(a) into the Aged Care Act to provide that a child can be a 'dependent child' of an adult if:

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the young person is the child of the adult as because of paragraph (c) of the new definition of 'child' in paragraph 44-11(1) of the Aged Care Act
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the adult is not the biological or adoptive parent of the young person, and
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there is no court order to prevent the adult from being legally responsible for the day-to-day care, welfare and development of the young person.

The restrictions in paragraph 44-11(2)(b) of the Aged Care Act still apply in determining whether the young person is a 'dependent child'.

735 The effect of these amendments is to ensure that the definition of 'dependent child' includes the child of a same-sex relationship as well as a child of an opposite-sex relationship.

Item 38

736 This item inserts new subsection 44-11(5) into the Aged Care Act. Subsection 44-11(5) of the Aged Care Act is a tracing rule that allows relationships because of the definition of 'child' in section 44-11 of the Aged Care Act to be traced through a person if that person is the child of another person. For example, in relation 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.

Item 39

737 This item amends subparagraph 67A-4(2)(a)(ii) of the Aged Care Act by removing the phrase 'a next of kin of such a care recipient, or'. The effect of this amendment is to ensure that when deciding when a sanction on an approved provider should take effect, regard will be given by the Secretary to the desirability of allowing sufficient time for any individual who is concerned for the safety, health and well-being of a care recipient, to be informed of the intention to impose the sanction and the consequences under the Aged Care Act of the imposition of the sanction. The amendment is not intended to prevent the Secretary from considering the desirability of informing the next of kin of a care recipient about the sanction.


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