Australia: Same Sex Relationships – Discrimination To End Under Federal Laws

Last Updated: 11 December 2008
Article by Andrew McCormack

The Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Bill 2008 has been passed by the Parliament and has been sent to the Governor-General for Royal Assent.

The General Law Reform Bill was a cornerstone of the Rudd Government's campaign to remove discrimination against same sex couples from the general body of federal law.

A related bill, the Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008 has also passed the Parliament and has been sent to the Governor-General for Royal Assent.

The Bill aims to eliminate discrimination against same sex couples and their children. It makes amendments to 68 pieces of Commonwealth legislation and ranges from amendments to family assistance legislation (which will enable same sex couples to be considered in de facto relationships and have their family assistance payments assessed accordingly) to the Corporations Act 2001 (where various definitions of spouse are used).

The rationale behind the Bill was to ensure that same sex couples have the same rights and privileges under Commonwealth legislation as opposite sex couples. It provides legislative recognition to same sex partners and their children to ensure that children are not disadvantaged due to the construction of their family unit.

Whilst some amendments to the 68 pieces of Commonwealth legislation are minor and may in places only change the definition of spouse to partner, there are a number of key definitions and concepts which have been amended or inserted.

Definition Of De Facto Partner

A definition of de facto partner will be inserted into the Acts Interpretation Act 1901 (AIA). This definition provides that a de facto partner can be a person of the same sex or opposite sex to another person in a de facto relationship. The AIA will be amended to insert s22B which provides for registered relationships under State or Territory laws to be recognised in federal law as de facto relationships.

Criteria For A De Facto Relationship

Section 22C of the AIA will outline the circumstances and criteria which will be taken into account to determine when a de facto relationship exists.

The criteria are exactly the same as those under section 32DA of the Acts Interpretation Act 1954 (Qld) which were taken from the decision in D v McA. These criteria are now codified under federal legislation.

It is now easier to determine for the purposes of federal legislation, whether a genuine domestic basis exists for a de facto relationship to be recognised. The amendments go on to codify that a de facto relationship can exist even if a party in the de facto relationship is legally married to another person or in another de facto relationship at the same time. This would appear to be a codification of the New South Wales decision in Green v Green & Ors.

Definition Of A Child

The Bill also seeks to insert a significant definition of 'child' to expand the classes of children that may be taken to be a child of a couple. The definition will extend to both opposite sex and same sex relationships.

Definition Of Parent And Relatives

The definition of 'parent' will also be expanded to ensure that both members of a couple can be recognised as the parents of a child that is a product of the relationship between the parties.

The Bill also makes amendments to the family tracing rules which affect other family relationships such as grandparents, uncles, aunts etc.

Amendment Of Taxation Laws

One of the most significant amendments provided for in the Bill is the amendment of various taxation laws to ensure that there is equality when assessing entitlements to taxation concessions or imposing taxation obligations on couples regardless of their sexual preference or relationship status.

The current taxation laws treat opposite sex de facto relationships in the same manner as a marital relationship.

As a result, parties in same sex relationships have not been able to access taxation concessions in the same manner as couples of opposite sexes in de facto relationships.

The amendments provided for under the Bill will apply from the start of the next accounting period - 1 July 2009 (except for fringe benefits tax related matters which commence on 1 April 2009).

Changing Definitions

The definition of 'de facto marriage' as it is presently referred to in various pieces of tax legislation will be repealed.

This amendment is significant as previously, the concept of a 'de facto marriage' extended only to opposite sex couples who had lived together on a 'bona fide domestic basis' as husband and wife.

The explanatory memorandum to the Bill quite rightly states that by referring to a relationship between two people living together as husband and wife, the definition excludes same sex de facto partners.

The concept of de facto marriage will be replaced by a definition of 'de facto relationship' which will extend the previous definition of 'de facto marriage' to ensure that it applies to same sex and opposite sex relationships and also to relationships that have been registered under State or Territory laws.

Consequently, the amendments also ensure that certain definitions under the Income Tax Assessment Act (both the 1936 and 1997 Acts) where reference is made to a marital relationship will extend to a de facto relationship even where the parties are the same sex.

Changes To Capital Gains Tax

By far, the most interesting change coming from the Bill is the amendment of section 126-5 of the Income Tax Assessment Act 1997 (ITAA97).

The section provides capital gains tax (CGT) roll-over relief in certain circumstances where assets are being transferred from a spouse or former spouse under the provisions of a Court Order (either under the Family Law Act 1975 or a State, Territory or foreign Court) or a recognised agreement.

The existing provisions of this section provide for a CGT roll-over relief to be available if there is a Court Order or recognised agreement relating to the transfer of property between parties to a marriage or a de facto marriage where this transfer or disposal would normally be a CGT event and require the payment of CGT on any gain.

Although the legislation in Queensland relating to de facto property adjustments has always recognised that a de facto relationship could be between persons of the same sex, the ITAA97 has not recognised this due to the definition of 'de facto marriage' that only extended to a male and a female who had been living in a marriage-like relationship on a bona fide basis.

The proposed amendment will remove the discriminatory aspects and will allow for roll-over relief to extend to same sex couples.

The amendments foreshadowed by the Bill are wide ranging and are designed to ensure that there is equality under federal legislation regardless of how people choose to structure their family unit.

The amendment of the AIA and the ITAA are particularly relevant to the practice of family law as it will enable practitioners to provide advice with some certainty as to the way in which relationships will be treated under federal law.

© HopgoodGanim Lawyers



Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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