ࡱ> ` N bjbjss v<T( w w ww(x( LPyPy(xyxyxyzzz˫ͫͫͫͫͫͫ$>hlzzxyxyg|8xyxy˫˫6;xyDy KQ wlfD0LҌz8;,g z* ?zzzL^zzzL( ( ( m w( ( ( w( ( (   Same sex: Same entitlements National inquiry into discrimination against people in samesex relationships Submission by SA Equal Opportunity Commission June 2006 CONTACT: Ms Linda Matthews Commissioner for Equal Opportunity (SA) Phone: (08) 8207 2257 Level 2 ING Building 45 Pirie Street, Adelaide SA 5000 Confidential: No  1. INTRODUCTION There was a time when South Australia could proudly boast that it was one of the worlds great pioneers when it came to law reform. The vote for women, consumer protections laws, the Torrens land title system, decriminalisation of homosexuality, Aboriginal land rights: South Australians stood at the forefront of all these advances. However, we now find ourselves lagging behind the rest of the country with out-dated laws, including for both recognition of same-sex rights and protection against discrimination generally. Recognising same-sex couples is not a radical idea in fact, SA is now the last of all the states and territories in Australia to adopt this reform. Unfortunately, we are not alone in our lack of progress on this issue. At the federal level, there is a similar failure to recognise same-sex relationships in important areas like taxation, medical benefits, and veterans affairs. There are a few in the community, however, who remain steadfastly opposed to according any respect to people who are not heterosexual. Some believe that same-sex relationships are abhorrent and lobby strongly to prevent any recognition of lesbian and gay families. But human rights are, by their nature, universal. Prejudice alone is never a sufficient argument to justify taking civil liberties away from others, while keeping them for yourself. In 1975, South Australia introduced this countrys first ever Sex Discrimination Act. Equality for women was met with strong opposition from the same quarters that now campaign against the rights of same-sex couples. The community rejected these arguments for continuing to allow discrimination in 1975it should do so again today. 2. THE SITUATION IN SOUTH AUSTRALIA Currently the SA Equal Opportunity Act 1984 recognises sexuality as a ground of discrimination. In 200405, 6% of our complaints were about discrimination on the basis of sexuality. Our experience is that whether you are gay, or people just think you are, there is a chance that you will experience discrimination. Around 80% of our complaints of sexuality discrimination are made by men at work. Other complaints come from people being refused services because of their sexuality. People making complaints of sexuality discrimination are more likely that others to experience additional unfair treatment, with over half also reporting sexual harassment, victimisation or both. In the last five years, we have noted an upward trend in the number of complaints of male-to-male sexual harassment. In 2004-05, 35% of all sexual harassment complaints were made by men. Typically this is perpetrated against men who are gay or are assumed to be gay. In addition, contact with service providers suggests that non-heterosexual students experience a fair degree of bullying at school. Finding a place to live is also a problem for some. To address this, we have been developing new online resources for students and teachers to counteract homophobic bullying in schools. A particular deficiency in the SA Equal Opportunity Act is the fact that the ground of marital status does not cover same-sex partners. Therefore, it is difficult for us to take up many complaints of discrimination against same-sex couples. When the Equal Opportunity Commission first started discussing this issue with community groups several years ago, we heard a range of accounts about the discrimination faced by same sex couples. These included a woman being prevented from seeing her partner after she was in a serious car accident, because the hospital said she wasnt family. We also heard about a funeral director who had been asked by parents to make sure their sons male partner was prevented from attending his funeral. In recent months, we received a complaint from a gay male couple in their fifties were refused a motel management job, after the interview was cancelled when the owner told them he wanted a woman behind the front desk. Situations like these convinced us that we needed to do more to raise awareness in government and the general community about the need for fair recognition of lesbian and gay families. In March 2003, a special edition of our newsletter Equity Matters was dedicated to an exploration of issues affecting same-sex couples in South Australia (see Appendix 3). 3. SOUTH AUSTRALIAN REFORM ATTEMPTS For some time now, volunteers in the gay community have been lobbying for legal recognition of same-sex couples through the Lets Get Equal Campaign. Back in 1999, the Equal Opportunity Commission joined with Lets Get Equal, the AIDS Council of South Australia and the Gay & Lesbian Counselling Service, to conduct a legislative audit. We found 54 different South Australian Acts that discriminated against samesex couples. Since then, we have been arguing the case for law reform. It is unfortunate that seven years later, these fair and reasonable amendments are yet to be implemented. Of greater concern is the fact that since that time, the number of pieces of SA law that discriminate against same-sex couples has almost doubled. There are now 99 separate pieces of legislation that contain discriminatory provisions (see Appendix 1 for a full list). In order to address the discrimination faced by same sex couples, the SA Government released a discussion paper on same-sex couples law reform in 2003. Numerous submission were made both for and against the reform. Later, the Attorney-General introduced the Statutes Amendment (Relationships) Bill into Parliament in 2004. The Bill would have expanded the definition of defacto partners to include both opposite and same sex couples. The coverage of the Bill included matters such as financial arrangements, health, inheritance, superannuation, and pecuniary interests. On introduction into Parliament, the Bill was referred to the Social Development Committee for further inquiry. At this stage, thousands of letters were presented to parliamentarians, with a majority in support of the Bill. However, on conclusion of the Committees inquiry, there was insufficient time for the Bill and subsequent amendments to pass both Houses before Parliament was prorogued for the state election in March 2006. As a result, same-sex couples in South Australia are virtually unrecognised in the law. In only one circumstance public sector superannuation is there legal recognition, by virtue of the passage of a specific private members Bill in 2002. 4. MATTERS NOT BEING ADDRESSED IN SA The 2004 Statute Amendment (Relationships) Bill aimed to remove discrimination from most, but not all, South Australian statutes. A decision was made by the government to set aside what were considered the more controversial matters of same-sex parenting, adoption and assisted reproduction. However, there are those in South Australia who support the recognition of lesbian and gay parents. Columnist with The Advertiser Rex Jory, wrote an opinion piece on 19 April 2004 which included the following remarks: A child raised by a loving same-sex couple is more likely to develop and find success and happiness than a child raised by a heterosexual couple in an atmosphere of anger, fear, deprivation and violence. Perhaps the most important issue in this difficult debate is the well-being of the child. Critics of lesbian parenthood argue that two women cannot provide a conventional upbringing for a child, particularly a boy. How would a boy learn to kick a football, bowl a cricket ball or repair a car engine? My father died when I was four years old and I was raised by my mother. But I got by as tens of thousands of other children from single-parent homes get by today. There is the potential for embarrassment, even harassment, at school for a child raised by same-sex parents. 鱨վ are unforgiving. But a loving, caring couple can help their child find a pathway of acceptance. In addition, the South Australian model of reform seeks only to recognise defacto relationships, both opposite and same sex, where the partners have been cohabiting for a period of at least three years (currently in SA law, heterosexual defactos are only recognised if they cohabit for at least five years). There are no plans at this stage in South Australia to allow same-sex couples to make a proactive decision to register their relationship, as can be done in Tasmania and the ACT. In SA, all defacto couples are only recognised once the cohabitation requirement has been met. 5. FEDERAL REFORMS REQUIRED Even with state reforms, there is still a need for federal law reform to ensure same-sex couples are covered by the full range of rights, responsibilities, entitlements and obligations that currently attach to heterosexual couples in defacto relationships. The Australian Government is responsible for a number of areas of law like taxation, health care and veterans affairs that state and territory governments cannot directly affect. Therefore, it is necessary for federal law reforms to be progressed to complete the recognition of same-sex relationships that has begun in states and territories. Presently, lesbian and gay families are not sufficiently protected by the Australian Government. As a result, they experience a number of discriminatory impacts. For example, in 2004, the Australian Government sent information in the post to all households about how they could apply for new Medicare safety net benefits for families with high medical bills. The application form specifically excluded same-sex couples. This overt discrimination resulted in a number of calls to the SA Equal Opportunity Commission from same-sex couples disappointed at yet another example of how they are treated as second class citizens. We have also received a number of other complaints about the unfair treatment experienced by people in same-sex relationships. One example relates to difficulties people in same-sex relationships face organising their superannuation so that, should the need arise, they can access their partners accumulated benefits. In some cases, gay people have told us that they have been refused access to their partners superannuation on their death even if they were named as the beneficiary. In another case, two men made a complaint when they felt their small family company was being targeted by competitors who were trying to use the fact that they were a couple to try to put them out of business. The existence of same-sex relationships should not be denied by the law a fiction that all Australian governments recognise is no longer sustainable. For example, the recent Anti-Terrorism Bill (No. 2) 2004 proposes a new definition of close family member be inserted into section 102.1(1) of the Commonwealth Criminal Code. This definition specifically includes spouse, defacto spouse and same-sex partner. It is important that same-sex relationships are recognised not only in new federal legislation, but also in the wide range of current enactments where they remain invisible. Ultimately, whether same-sex marriage is permitted or not, the Australian Government should initiate a process to achieve the legal recognition of same-sex partners with equal status before the law as opposite-sex spouses. Such proposals have previously been recommended in 1997 by the Senate Legal and Constitutional References Committee Inquiry into Sexuality Discrimination. Recommendation 6.1 of that Inquiry specifically addressed the need to reform federal laws affecting social security, taxation, superannuation, health, family programs and other services. Recommendation 6.4 called for a consistent and gender neutral definition of a genuine domestic relationship to be implemented and used by all Australian Government agencies and departments. The failure to recognise the existence of same-sex couples under Australian law has a number of significant consequences, particularly in relation to superannuation, taxation and medical benefits. In its decision in Young v Australia, the UN Human Rights Committee found the Australian Government to be in breach of its international human rights obligations by denying a pension to a veteran in a same-sex relationship. Clearly, it is possible for same-sex relationships to be acknowledged in law and this is being done by all state and territory governments. To achieve this at the federal level, the Australian Government could conduct an audit of all its legislation, policies and programs to identify provisions which discriminate on the basis of sexuality or being in a same-sex relationship. An audit should be conducted with a view to removing all discriminatory references and impacts. Subsequently, the Australian Government should adopt all necessary measures to legally recognise same-sex relationships and allow such relationships to be registered to afford the same rights, responsibilities, entitlements and protections granted to heterosexual couples. 6. COUNTERING ARGUMENTS AGAINST SAME-SEX LAW REFORM In South Australia, arguments have been raised that the recognition of same-sex relationships will have negative social consequences. This has also been the experience in other jurisdictions that have progressed these reforms. The arguments against same-sex law reform in South Australia have been threefold: homosexuality is immoral same-sex relationships undermine marriage there are other co-dependent relationships that also deserve recognition. The first argument can be countered simply with research released in 2005 by the Australia Institute, Mapping Homophobia in Australia. It found that two-thirds of all Australians reject the view that homosexuality is immoral. Furthermore, this research challenged the common misconception that people who hold strong religious convictions are necessarily homophobic. While it did find that 68% of Baptists thought homosexuality was immoral, only a minority of Catholics (34%) and Anglicans (35%) concurred. I would like to spend some time addressing the last two of these arguments, which I do not believe are sufficient to prevent the passage law reforms designed to recognise same-sex couples both in South Australia and federally. Marriage Those who oppose this law reform argue that by recognising the rights and responsibilities of the relatively small number of same sex couples, we will somehow undermine the institution of marriage. I believe this argument to be a red herring and wrong in any case. This law reform is about recognition of defacto couples. It is not, and never has been, about marriage or religion. The SA Attorney-General Michael Atkinson has consistently stated that the recognition of same-sex couples in SA has nothing to do with marriage. And well before this, on 6 June 1996 during parliamentary debate on the Defacto Relationships Act, the Hon Michael Atkinson MP (as shadow Attorney) made a thoughtful and considered contribution about the nature of couple relationships in history and modern society (see Appendix 2). I recommend this speech by Mr Atkinson, as it is a comprehensive explanation of the difference between civil relationships and sacramental marriage. It demonstrates from a religious point-of-view, how state-based and Church-sanctioned relationships can exist side-by-side. Co-dependant carers I am also aware that arguments have been raised that it is not only same-sex couples who lack recognition: co-dependant carers are similarly without adequate legal protection. Certainly, I agree that the caring responsibilities of modern families whether for children, the disabled or elderly are difficult to manage. For this reason, as part of the current review of the Equal Opportunity Act the SA Government proposed that a new ground of discrimination on the basis of caring responsibility be introduced. I am hopeful that in coming sessions, the government will put such this measure before the South Australian Parliament as part of the package of reforms needed to modernise this states equal opportunity laws and bring them into line with the protections already available interstate. People with responsibilities to care for others experience difficulties, particularly if they are working and require flexible arrangements. However, simply assuming that the needs of carers are equivalent to those of defacto couples is selling carers short and failing to take into account their unique circumstances. In South Australia, the needs of co-dependent carers have not been raised by carers groups during debate on same-sex law reform. Instead, they have been latched onto by opponents of same-sex law reform and are being used as a smoke screen to water down attempts to recognise same-sex couples. Having said that, I would support a separate process being conducted to properly evaluate the issues for co-dependent carers. Recently, I had a telephone enquiry from a member of the public about this issue. This caller said he supported recognition of same-sex relationships, but he asked why co-dependant carers were not also being recognised. He gave the example of his brother, who he said was nursed through chronic illness by his mother. After discussion, he understood the potential for confusion if his mother was recognised a co-dependent carer in the same way as if she were his defacto partner. The caller could see the difficulties when considering what would happen if his brother had died during this serious illness and his mother was recognised in this way. Who should his estate, including his familys home, be automatically inherited by according to the law his mother or his wife and children? This is a helpful example, because it demonstrates that those who argue for the recognition of domestic co-dependant carers in the same way as defacto couples, have not thought the idea through. Carer relationships are different to couple relationships, whether they are heterosexual or samesex. Put simply, it is wrong to pretend that the governments can properly recognise the sacrifice and dedication shown by carers by treating them as if they were in a defacto relationship. This is particularly so in the example given above, where the carer was a close family member. If there are specific legislative amendments required to properly recognise the needs of codependent carers then these should be evaluated through a separate, specific inquiry. 7. CONCLUDING REMARKS The SA Attorney-General the Hon Michael Atkinson MP, introduced the Statutes Amendment (Relationships) Bill into the South Australian Parliament on 15 September 2004, with the following remarks: Like heterosexual people, many homosexual people choose to live their lives in couple relationships of mutual affection and support. These partnerships, like those of opposite sex couples, may be of short or long duration and in many cases may be lifelong. They have much the same social consequences as the relationships of opposite sex couples. For example, the couple may merge their property and financial affairs, they may provide care for each other during periods of illness or disability, and they may care for children together. Our law, however, knows nothing of such arrangements. Whereas it recognises opposite sex couples, whether or not they marry, and attaches legal consequences to these relationships, it behaves as if same sex couples do not exist. As a result, same-sex couples are denied some rights and exempted from some obligations that accrue to unmarried opposite sex partners in the same situation. It is not the policy of the Government that homosexual relationships are the same as marriages. It is our policy, however, that same-sex couples should have the same legal rights and duties as unmarried opposite-sex couples. Same-sex relationships do not threaten the fabric of society. On the contrary, all stable, committed relationships contribute to it. The present Bill is an important step towards equal civil rights for all South Australians. It has long been the policy of our law, through the Equal Opportunity Act, that there is to be no discrimination against homosexual people as individuals in the areas to which that Act applies. Our law has, however, been too slow to recognise the rights and duties of homosexual people as couples. That many homosexual people choose to live in couple relationships much like those of heterosexual people is a fact of life and one that the law can no longer ignore. This Bill acknowledges in law what everyone knows to be so in fact. It is a just measure and I commend it to the House. I concur with the Attorney-General on the need for law reform affecting same-sex couples. It would be a positive step for the Australian Government to enact laws which allow redress against the types of discrimination covered by the HREOC enquiry. LINDA R MATTHEWS COMMISSIONER FOR EQUAL OPPORTUNITY (SA) Appendix 1: SA legislation that discriminates against same-sex couples Section A: SA laws scheduled for change under Statutes Amendment (Relationships) Bill 2005 Administration and Probate Act1919 Section 4 Interpretation Section 37 If executor or administrator out of jurisdiction, special administrator may be appointed Section 71 Payment without production of probate or letters of administration Section 72 Payment by ADI of sums not exceeding $2 000 Section 72E Presumption of survivorship not to apply Section 72F Value of intestate estate Section 72G Distribution of intestate estate Section 72H Provision as to spouses and domestic partners Section 72K Gifts to be brought into hotchpotch Section 72L Election by spouse or domestic partner to take dwellinghouse Section 72M Limitation on right of personal representative to sell interest in dwellinghouse Aged and Infirm Persons' Property Act1940 Section 3 Interpretation Section 8 Application for protection order Section 8A Protection order on court's own motion Section 10 Appointment of manager Section 12 Exemption of part of estate Section 13 Powers of manager Anangu Pitjantjatjara Yankunytjatjara Land Rights Act1981 Section 25 Special provisions relating to Mintabie precious stones field ANZAC Day Commemoration Act2005 Section 3 Interpretation Section 16 Application of Fund Architects Act1939 Section 32A Registration of company as architect Associations Incorporation Act1985 Section 3 Interpretation Section 18 Eligibility for incorporation Authorised Betting Operations Act2000 Section 3 Interpretation Section 5 Close associates Casino Act1997 Section 3 Interpretation Section 4 Close associates Chiropractic and Osteopathy Practice Act2005 Section 54 Interpretation Chiropractors Act1991 Section 4 Interpretation Section 18 Qualifications for registration Citrus Industry Act1991 Section 3 Interpretation Section 8 Conflict of interest Section 12 Conflict of interest over appointments City of Adelaide Act1998 Schedule 2 Register of interests: Form of returns Civil Liability Act1936 Section 3 Interpretation Section 24 Effect and mode of bringing action, awarding of damages for funeral expenses etc Section 29 Liability to surviving spouse or domestic partner of person wrongfully killed Section 30 Further provisions as to solatium etc Section 53 Damages for mental harm Section 58 Damages in respect of gratuitous services Section 65 Spouse or de facto partner may claim for loss or impairment of consortium Section 66 Damages where injured spouse or domestic partner participated in business Community Titles Act1996 Section 3 Interpretation Conveyancers Act1994 Section 3 Interpretation Schedule 2 Transitional provisions Co-operatives Act1997 Section 4 Definitions Section 153 Notice in respect of bonus shares Section 226 Financial accommodation to directors and associates Section 270 Acquisition and disposal of assets Correctional Services Act1982 Section 4 Interpretation Cremation Act2000 Section 4 Interpretation Section 7 Relatives etc may object to cremation in cases where cremation not directed by deceased person Criminal Assets Confiscation Act 2005 Section 3 Interpretation Section 131 Examination orders relating to restraining orders Section 132 Examination orders relating to applications for confirmation of forfeiture Criminal Law Consolidation Act1935 Section 5 Interpretation Section 5AA Aggravated offences Section 269A Interpretation Criminal Law (Forensic Procedures) Act1998 Section 3 Interpretation Crown Lands Act1929 Section 78B Life leases for certain shacks De Facto Relationships Act1996 Amendment of long title Section 1 Short title Section 3 Definitions Substitution of section 4 Application of Act Section 5 Domestic relationship property agreements Section 6 Domestic relationship property agreement enforceable under law of contract Section 7 Consensual variation or revocation of domestic relationship property agreement Section 8 Power to set aside or vary domestic relationship property agreement Section 9 Property adjustment order Section 10 Power to make orders for division of property Section 11 Matters for consideration by court Section 12 Duty of court to resolve all outstanding questions Section 15 Protection of purchaser in good faith, for value and without notice of claim Dental Practice Act2001 Section 3 Interpretation Section 33 Registration of companies Development Act1993 Section 4 Definitions Domestic Violence Act1994 Section 3 Interpretation Electoral Act1985 Section 29 Entitlement to enrolment Environment Protection Act1993 Section 3 Interpretation Equal Opportunity Act1984 Section 5 Interpretation Section 50 Religious bodies Evidence Act1929 Section 21 Competence and compellability of witnesses Fair Work Act1994 Section 4 Interpretation Section 6 Application of Act to employment Section 77 Form and content of enterprise agreement Schedule 1 Repeal and transitional provisions 17 Enterprise agreements and spouses or domestic partners Schedule 5 Minimum standard for parental leave Family Relationships Act1975 Section 5 Interpretation Substitution of Part 3 11 Interpretation 11A De facto partners Substitution of section 13 13 Confidentiality of proceedings Firearms Act1977 Section 5 Interpretation First Home Owner Grant Act2000 Section 3 Definitions Section 6 Spouses and de facto partners Section 10 Criterion 3: Applicant (or applicant's spouse or domestic partner) must not have received earlier grant Section 11 Criterion 4: Applicant (or applicant's spouse or domestic partner) must not have had relevant interest in residential property Section 41 Protection of confidential information The Flinders University of South Australia Act1966 Section 18C Duty of Council members with respect to conflict of interest Gaming Machines Act1992 Section 3 Interpretation Section 39 Commissioner may approve agents of Board Section 44A Prohibition of links between dealers and other licensees Genetically Modified Crops Management Act2004 Section 24 Orders on conviction for an offence Governors' Pensions Act1976 Section 2 Interpretation Section 3 Order for payment of pensions Section 4 Amount of pension Ground Water (Qualco-Sunlands) Control Act2000 Section 3 Interpretation Guardianship and Administration Act1993 Section 3 Interpretation Section 39 Powers and duties of administrator Section 78 Medical practitioner, psychologist or other health professional cannot act under this Act in respect of a relative Hospitals Act1934 Section 4 Interpretation Section 47 Maintenance of patients in public hospitals Housing and Urban Development (Administrative Arrangements) Act1995 Section 3 Interpretation Housing Improvement Act1940 Section 4 Interpretation Section 61 Orders for possession Inheritance (Family Provision) Act1972 Section 4 Interpretation Section 6 Persons entitled to claim under this Act Judges' Pensions Act1971 Section 4 Interpretation Section 6A Preservation of pensions on resignation before 60 Substitution of sections 8 and 9 8 Death of Judge or former Judge 9 Division of benefit where deceased Judge or former Judge is survived by more than 1 spouse or de facto partner Section 9A Spouse entitlement subject to any Family Law determination Section 10C Child benefit where no spouse or de facto partner pension payable Section 10D To whom child benefit payable Section 15 Refund of certain contributions Section 17A Commutation of pension to pay deferred superannuation contributions surcharge Juries Act1927 Schedule 3 Persons ineligible for jury service Land Tax Act1936 Section 5 Exemption or partial exemption of certain land from land tax Legal Practitioners Act1981 Section 5 - Interpretation Section 16 Issue of practising certificate Liquor Licensing Act1997 Section 7 Close associates Local Government Act1999 Section 4 Interpretation Section 74 Members to disclose interests Section 80 Insurance of members Schedule 3 Register of Interests: Form of returns Medical Practice Act2004 Section 68 Interpretation Members of Parliament (Register of Interests) Act1983 Section 2 Interpretation Mental Health Act1993 Section 3 Interpretation Section 32 Medical practitioner cannot act under Act in respect of relative Natural Resources Management Act2004 Section 3 Interpretation Occupational Therapy Practice Act 2005 Section 51 Interpretation Parliamentary Superannuation Act1974 Section 5 Interpretation Repeal of sections 7A and 7B Section 19 Reduction of pension in certain circumstances Section 21AF Preservation of components Section 21AH Death of PSS 3 member Section 22A Other benefits under the new scheme Section 23 Pension paid for limited period Section 23AA Commutation to pay deferred superannuation contributions surcharge Section 23AAC Commutation to pay deferred superannuation contributions surcharge following death of member Section 23AAD Withheld amount Section 24 Pension for spouse or de facto partner of deceased PSS1 member pensioner Section 25 Pension for spouse or de facto partner of deceased PSS1 member Section 25A Pension for spouse or de facto partner of PSS2 member pensioner Section 25B Pension for spouse or de facto partner of deceased PSS2 member Substitution of section 26 26 Partner pension Section 26AAA Spouse entitlement subject to any Family Law determination Section 26AA Commutation of pension Section 28 Child benefit: general Section 29 Child benefit where no partner pension payable Section 31A Benefits payable to estate Section 36A Division of benefit where deceased member is survived by more than 1 spouse or de facto partner Schedule 3 Commutation factors for partner pensions Partnership Act1891 Section 1B Interpretation Section 2 Rules for determining existence of partnership Pastoral Land Management and Conservation Act1989 Section 16 Conflict of interest Pharmacists Act1991 Section 4 Interpretation Section 18 Qualifications for registration Phylloxera and Grape Industry Act1995 Section 9 Conflict of interest Physiotherapists Act1991 Section 4 Interpretation Section 18 Qualifications for registration Physiotherapy Practice Act 2005 Section 54 Interpretation Podiatry Practice Act2005 Section 54 Interpretation Police (Complaints and Disciplinary Proceedings) Act1985 Section 3 Interpretation Section 25 Investigations by internal investigation branch Section 28 Investigation of matters by Authority Police Superannuation Act1990 Section 4 Interpretation Repeal of sections 4A and 4B Section 14 Payment of benefits Section 22 Resignation and preservation Section 26 Death of contributor Section 26B Commutation to pay deferred superannuation contributions surcharge following death of contributor Section 26C Withheld amount Section 32 Benefits payable on contributor's death Section 33 Benefits payable to contributor's estate Section 34 Resignation and preservation of benefits Section 35A Commutation to pay deferred superannuation contributions surcharge Section 37 Effect on pension of pensioner's re-employment Section 38E Benefits Section 38EBA Payment of co-contribution component Section 40 Effect of workers compensation etc on pensions Section 41 Division of benefit where deceased contributor is survived by more than 1 spouse or de facto partner Section 43 Repayment of balance in contribution account Section 44 Special provision for payment in case of infancy or death Section 46A Termination of Police Occupational Superannuation Scheme Section 48 Power to obtain information Problem Gambling Family Protection Orders Act2004 Section 3 Interpretation Public Corporations Act1993 Section 3 Interpretation Public Intoxication Act1984 Section 4 Interpretation Public Sector Management Act1995 Section 3 Interpretation Public Trustee Act1995 Section 3 Interpretation Section 9 Administration of deceased estate Section 35 Powers of Public Trustee as manager Racing (Proprietary Business Licensing) Act2000 Section 3 Interpretation Section 5 Close associates Renmark Irrigation Trust Act1936 Section 5 Interpretation Residential Tenancies Act1995 Section 3 Interpretation Section 81 Termination because possession is required by landlord for certain purposes Retirement Villages Act1987 Section 3 Interpretation River Murray Act2003 Section 3 Interpretation South Australian Health Commission Act1976 Section 6 Interpretation Section 39 Fixing of fees Section 57A Fixing of fees South Australian Housing Trust Act1995 Section 3 Interpretation South Eastern Water Conservation and Drainage Act1992 Section 16 Conflict of interest Southern State Superannuation Act1994 Section 3 Interpretation Repeal of sections 3A and 3B Section 32 Resignation Section 35 Death of member Section 35AAB Commutation to pay deferred superannuation contributions surcharge following death of member Section 35AAC Withheld amount Section 43 Division of benefit where deceased member is survived by more than 1 spouse or de facto partner Section 44 Payment in case of death Stamp Duties Act1923 Section 2 Interpretation Section 60A Value of property conveyed or transferred Section 71CB Exemption from duty in respect of certain transfers between spouses and former spouses or domestic partners and former domestic partners Section 71CBA Exemption from duty in respect of domestic relationships property agreements or property adjustment orders Section 71CC Interfamilial transfer of farming property Section 91 Interpretation Superannuation Act1988 Section 4 Interpretation Repeal of sections 4A and 4B Section 28 Resignation and preservation of benefits Section 28A Resignation under voluntary separation package Section 32 Death of contributor Section 32A PSESS benefit Section 32C Commutation to pay deferred superannuation contributions surcharge following death of contributor Section 32D Withheld amount Section 38 Death of contributor Section 39 Resignation and preservation of benefits Section 39A Resignation or retirement under voluntary separation package Section 40A Commutation to pay deferred superannuation contributions surcharge Section 45 Effect of workers compensation etc on pensions Section 46 Division of benefit where deceased contributor is survived by more than 1 spouse or de facto partner Section 48 Repayment of contribution account balance and minimum benefits Section 49 Special provision for payment in case of infancy or death Schedule 1B Transfer of certain members of the Electricity Industry Superannuation Scheme to the State Scheme Superannuation Funds Management Corporation of South Australia Act1995 Section 3 Interpretation Supported Residential Facilities Act1992 Section 3 Interpretation Supreme Court Act1935 Section 13H Pre-retirement leave Transplantation and Anatomy Act1983 Section 5 Interpretation University of Adelaide Act1971 Section 17 Duty of Council members with respect to conflict of interest University of South Australia Act1990 Section 15C Duty of Council members with respect to conflict of interest Upper South East Dryland Salinity and Flood Management Act2002 Section 3 Interpretation Veterinary Practice Act2003 Section 46 Interpretation Victims of Crime Act2001 Section 4 Interpretation Section 17 Eligibility to make claim Section 20 Orders for compensation Section 23 Joint offences Schedule 1 Repeal and transitional provisions 3 Operation of certain amendments Wills Act1936 Insertion of section 7A 7A Interpretation Section 17 Gifts to an attesting witness Section 18 Creditor attesting to be admitted a witness Workers Rehabilitation and Compensation Act1986 Section 3 Interpretation Section 44 Compensation payable on death Schedule 1 Transitional provisions 5D Compensation payable to de facto partner on death of worker Section B: SA laws that will retain provisions that discriminate against same-sex couples Adoption Act 1988 Section 4 Interpretation Section 12 Criteria affecting prospective adoptive parents Births, Deaths and Marriages Registration Act 1996 Section 14 How to have the birth of a child registered Family Relationships Act 1975 Section 7 Recognition of paternity Section 10a Interpretation Section 10e Donor of genetic material Gift Duty Act 1968 Section 4 - Interpretation Motor Vehicles Act 1959 Section 71C - Interpretation Passenger Transport Act 1994 Section 4 - Interpretation Real Property Act 1886 Section 111 Transfer by registered proprietor to spouse etc Reproductive Technology (Clinical Practices) Act 1988 Section 13 Licence required for artificial fertilisation procedures Stamp Duties Act 1923 Schedule 2 16 General exemptions (9: Marriage settlements) Appendix 2: Parliamentary Debate Defacto Relationships Bill (SA) 1996 Speech by then Shadow Attorney, Mr Michael Atkinson MP (current SA Attorney-General) Mr ATKINSON (Spence): Before 1563, people could marry without sacramental or statutory forms. In England at common law it was good enough for the parties to declare before others that they took each other to be husband and wife and then consummate the marriage. Royalty and the aristocracy exchanged their vows before a bishop or priest during a nuptial Mass. But, for the masses, proof of a declaration was sufficient, even if the declaration was made in the corner of a pub. After the Council of Trent in 1563, banns were required to be published, that is, notice of intention to marry thrice given in order to allow objections. Lord Hardwicke's Marriage Act 1753 required marriages except for those of Quakers and Jews to be solemnised according to the rites of the Church of England in the presence of a minister and two other witnesses. This Act prompted many English people to evade its formalities, such as parental consent, by eloping to the Scottish border town of Gretna Green, the first town north of the border on the road from Carlisle. In Scotland until 1940 marriage could be contracted by mutual declarations of consent to take each other as husband and wife in the presence of two witnesses. Common law marriage survived Lord Hardwicke's Act but, in Regina v Millis (1844), the House of Lords held that a valid marriage at common law could be contracted only by an exchange of consent in the presence of an episcopally ordained clergyman. I do not know where that left English Presbyterians and Baptists at common law. `Common law husband' and `common law wife' are expressions that now survive as synonyms for de facto husband and wife. It means couples who are married by habit and repute but not by law. I mention this history to sustain the point that civil or statutory marriage and sacramental marriage have not always been common in the English speaking world. What passes as a de facto relationship today might well have been deemed a valid marriage at common law before Regina v. Millis (1844), and de facto relationships might thus have carried consequences of property division upon divorce that civil marriage carries today. If that were so, we would not have needed this Bill. The promoters of the Bill tell us that there has been a sharp increase in the number of de facto relationships so that, if they are considered as a proportion of total marriages, they comprise 8 per cent. When I was a child, before 1974, divorce was more difficult to obtain in Australia than it is now. Under the old forms of divorce, one had to establish cruelty, adultery, desertion or some other reason for being granted a divorce. I knew friends of my father who lived in a de facto relationship rather than have one or both of them go through the expense and embarrassment of a divorce from their lawful spouse, followed by remarriage to their current partner. Although divorce has been almost farcically easy since the passage of the Family Law Act 1974, there are still some men and women who form a marriage-like domestic relationship with each other and who do not want to go through the formalities of civil marriage and live under the shadow of the Family Law Act not much of a shadow, I would have thought. In my opinion, the Family Law Act 1974 has been a charter for male irresponsibility, and feminists ought to recognise it as a device for trading in the old wife, inaugurated by male politicians with 1960s values. Those of us who think the Family Law Act 1974 has cheapened marriage should keep the vows we took during our sacramental marriage and try not to think about how flimsy is our civil marriage, revocable at 12 months notice. Speaking for myself, I would like to see a higher form of civil marriage reintroduced for those brides and grooms who would like to commit themselves to something more than Family Law Act marriage. This form would resemble sacramental marriage and be dissolvable only on the proved fault of one of the parties, rather like the old forms of divorce, the newspaper reporting of which used to entertain us so much. Those who are happy with the current form of civil marriage could choose to enter that. It would be a matter of choice, but today changes to our law offer only new choices that derogate from moral standards, not higher moral choices. Members may be surprised, therefore, when I say that, old fashioned though I am about marriage, I have no difficulty in giving legal consequences to de facto relationships, because I think that to do so is just. As legislators we have to take society as it is, not as we would like it to be. I also think there is no compelling reason to deny to homosexual couples the advantages of the Bill. Some might say that the Bill undermines civil marriage by creating a lesser legal union of two people, but in my opinion there is not much left in civil marriage to undermine. For me, my civil marriage was just red tape, consequential on my sacramental marriage. A second reason for the increased number of de facto relationships is their use as a trial before marriage. A third reason for the increase is the large number of men who do not want to accept the responsibilities of marriage nor risk sharing their assets with their de facto wife upon the dissolution of the relationship. MrClarkeinterjecting: Mr ATKINSON: The member for Ross Smith interjects, `Smart, I would have thought.' I shall come to the member for Ross Smith later. Many of these men have shared their assets with a first or second wife upon divorce and have no wish to share their assets with women again. It is these men at whom the Bill is aimed. What are the property arrangements now upon the dissolution of a de facto relationship? Years ago it was common for the partners to such a dissolution to take with them such of the assets as they had brought into the relationship and the assets they had individually acquired during the relationship. For the man, this meant he could take his house, his car and his superannuation. The woman might have kept house for years and raised his children, but she was not entitled to his assets at law. This was an unjust outcome, but the courts, reflecting the values and public opinion of the time, took the view that living in sin that is, a man and a woman living together as husband and wife without a civil marriage certificate was a scandal and that the courts should not recognise such an arrangement. In recent decades the courts began to feel that this outcome was unjust. The courts invented a fiction to overcome the injustice and applied the doctrine of `constructive trust' to de facto relationships. That is to say the courts held that, although the man might own the house and the chattels in law, equity required that he hold part of their value in trust for the woman if she had contributed to their acquisition. The equitable doctrine of constructive trust bears some similarity to the United States doctrine of unjust enrichment, but our doctrine is constrained by precedent. A de facto wife whose contribution to her de facto husband's acquisition of assets was home making and home making alone might not recover anything under the doctrine of constructive trust. She might have to prove that she contributed money or helped with the family business. The most recent High Court case on constructive trust was Muschinski v. Dodds, which was heard in August 1984, judgment being delivered in December 1985. I shall discuss this case at some length, because it is representative of so many legal disputes between separated de facto couples, and it is the leading Australian case on the doctrine of constructive trust that the Bill seeks to supersede. Hilda Regina Muschinski and Ronald Herbert Dodds had lived together at Ingleburn in New South Wales from 1972 without marrying. In 1975 they decided to buy a dilapidated sandstone cottage on land at Picton, New South Wales. It was their intention that Mr Dodds restore the cottage and erect a prefabricated house in which they could live on the lot. It was agreed that Mrs Muschinski would use the cottage as an arts and crafts shop once it was restored. Mr Dodds said he would not be in the venture if the property was not put in both names. Mrs Muschinski put up the $20000 to buy the cottage and land by selling her home at Ingleburn. The property was then conveyed to the happy couple as tenants in common. The Wollondilly council refused permission to erect the prefabricated home. MrDodds received much less from his divorce settlement than he had expected and he did not restore the cottage. In May 1980 the couple separated permanently. TheHon.S.J.Bakerinterjecting: Mr ATKINSON: The Deputy Premier says, `It didn't last long.' MrsMuschinski and MrDodds lasted for eight years, and that is much longer than the average defacto relationship. I shall give the Deputy Premier some statistics on that very point later, since he has invited those statistics. MrsMuschinski claimed to be entitled to the beneficial interest in the entire property because, she argued, MrDodds held his half on constructive trust for her, as the person who paid the entire purchase price, until he discharged the presumption of constructive trust by performing his side of the bargain. MrsMuschinski failed before MrJustice Waddell in the New South Wales Supreme Court, and she also failed before three justices of the New South Wales Court of Appeal. Remember, this is only a $20000 cottage and land. But MrsMuschinski would not give up and she appealed to the High Court in an action which, I will wager, cost much more than the value of the Picton property. A similar burden of costs in the South Australian jurisdiction was mentioned in debate in another place. The case was heard before five justices of the High Court and the leading judgment was delivered by MrJustice Deane. This is what he said about the doctrine of constructive trust: In its basic form it was imposed, as a personal obligation attaching to property, to enforce the equitable principle that a legal owner should not be permitted to use his common law rights as owner to abuse or subvert the intention which underlay his acquisition or possession of those rights...Viewed in its modern context the constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention...Equity regards as done that which ought to be done...The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate process of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles. Thus it is that there is no place in the law of this country for the notion of a constructive trust of a new model, by whichever name it is described, imposed by law when justice and good conscience (in the sense of fairness or what was fair) require it. Under the law of this country proprietary rights fall to be governed by principles of law and not some ruse of judicial discretion, subjective views about which party ought to win and the formless void of individual moral opinion. Anhonourablememberinterjecting: Mr ATKINSON: The member for Ross Smith has pointed out that MrJustice Deane is now Australia's Governor-General. Later MrJustice Deane concluded an historical review of equity law by saying: Undefined notions of justice and what is fair had given way in the law of equity to the rule of ordered principle which is the essence of any coherent system of rational law. You might think, from listening to that magisterial exposition of the equitable doctrine of constructive trust, that MrJustice Deane was saying that the rules of equity had been set in concrete so as to promote the highly desirable quality of certainty in our law and that they were not to be bent to accommodate new developments such as the increase in the number of defacto couplings. What the court might have gone on to say, if prompted, was that it was there to apply the law as it most certainly existed, not to legislate, that is, not to pass new laws to cover new situations. I think the court is right to approach the problem in this way and I only wish that the High Court still held this view. Instead, some current High Court judges are keen to make, and do make, politically-correct new laws which they wish the elected parliamentarians had made but which, owing to our benighted, populist and reactionary nature, we have not made. But that is another matter. To satisfy the curiosity of the House, I add that MrsMuschinski won her appeal, so the equitable doctrine of constructive trust cannot be as rigid as MrJustice Deane said it was. Perhaps he was just raising the excitement of the parties by foxing a bit. I should add that the approach of Justice Deane and the majority was not shared by justices Brennan and Dawson, who dissented. They would have sent MrsMuschinski away empty handed. We, as legislators, cannot leave the law applying to the division of property between separated defacto couples in this state. What we are doing today is to make a new law to take the place of the doctrine of constructive trust. The Bill, by clause11, provides that, when considering an order for the division of property between a defacto couple who have split, the court must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the defacto partners to the acquisition, conservation or improvement of property of either or both partners. That is the guts of the Bill. The court should also consider the financial resources of either or both partners and must consider homemaking or parenting contributions. I agree with that formula. The sooner it becomes law, the better. Homemaking and mothering contributions for mothering contributions they usually are should be taken into account in the division of property. Anhonourablememberinterjecting: Mr ATKINSON: I hear the member for Ross Smith indicating his assent: I hope he will support amendments to the taxation system to reward homemaking as it should be rewarded. Clause 10 of the Bill authorises the court to order the transfer of property from one defacto partner to another; the sale of property and the division of the net proceeds between the partners in proportions decided by the court; and the payment of a lump sum by one partner to another. Another advantage of the Bill is that the law applying to the division of property upon the break-up of a defacto relationship will be certain compared with the law of constructive trust, and disputes may be heard as a minor statutory proceeding or in the Magistrates Court or the District Court. I turn now to the other provisions of the Bill. The definitions clause provides that a defacto relationship is one between a man and a woman who, although not married, have lived together on a genuine domestic basis as husband and wife. Owing to amendments made in another place by the Australian Labor Party and the Australian Democrats, a defacto relationship can also include a homosexual relationship between two people who live together on a genuine domestic basis. MrScalziinterjecting: Mr ATKINSON: The member for Hartley asks, `How do you define that?' Just as we have defined it. I think it is as easy to measure as it is in respect of heterosexual couples. In my travels around my electorate, I have come across three homosexual couples who have a genuine domestic relationship, and it has endured for a long time. Mr Rossi: How do you know they were homosexuals? Did you watch them in the act? Mr ATKINSON: The member for Lee's interjection does deserve The DEPUTY SPEAKER: The honourable member need not respond to the interjection. The member for Lee is out of order making the interjection. Mr ATKINSON: No, on this occasion the member for Lee's interjection ought to be recorded for posterity. The answer is that, in the one case of a couple who remain in my electorate, they told me. When people tell me what their sexual orientation is, I am inclined to believe them. Clause 9 provides that, before the Bill can apply to a de facto relationship, the couple must have lived together for three years or that there is a child of the relationship. Whenever MPs gather to deliberate privately on the Bill, the men foreshadow the arrival of the removal van at the dwelling of the de facto couple two years and 11 months into the relationship. The Government has responded to this male predilection for avoiding their responsibility to their partner in clauses 5 and 6 of the Bill by allowing the partners to make a cohabitation agreement to be enforced as a contract. The agreement can specify the division of property at the end of the relationship. The agreement must be in writing and signed by each party. You can bet that the most common form of these agreements will be those in which the man specifies that he keeps all the property he brings into the relationship with the woman. The Bill provides that the cohabitation agreement is enforceable as a contract when the couple is dividing property at the end of the relationship, but if the agreement would result in serious injustice the court may vary or set aside the agreement in favour of the rules set out in clause 11. So far, so good. But, the 12 blokes and the heiress that make up this Government do not rest there. In the Government version of the Bill, a couple can exclude the court from looking at the division of the property upon separation and thus exclude the rules set out in clause 11 of the Bill if the couple sign a certified cohabitation agreement. I just want to pause there to say that, throughout this legislation, we find a word unknown to the English language. We find the word, `certificated', and I do not know what that means. It seems to me that it means the same as `certified', a word with fewer keystrokes and simpler and understood by all. So, let me indicate that I would want a very good explanation from the Deputy Premier about why we have to invent a new word, `certificated', to replace the word `certified' that has been doing a good job for centuries. The Government has proposed to make signing such a certified cohabitation agreement easy, but Labor and the Democrats in another place have made the certification of such an agreement rather more difficult. Under our version, a cohabitation agreement can be certified by the couples each consulting a different lawyer, having the lawyer explain the agreement to them, giving the lawyer credible assurances that he or she is not acting under coercion or undue influence, disclosing to each other all material assets and, finally, each signing in the presence of his and her lawyer. The Opposition would like the additional requirement `that the certified agreement be entered into in the utmost good faith'. We are suspicious of cohabitation agreements that seek to exclude the courts from looking at their provisions. As the Australian Democrats have said in this connection: The common argument is that no-one can protect people from themselves. However, the law can and does defend vulnerable people and the role of the court should remain. That statement is a Democrat jewel, and I propose to keep it in a safe place until we have the debate on prostitution and drugs. The Australian Family Project, a study conducted under the auspices of the Australian Institute of Family Studies, found that de facto relationships lasted on average two years; a quarter lasted one year, half ended after two years, and three-quarters were finished after four years. This means that, leaving aside those relationships that produce children, the Bill will catch fewer than half the de facto relationships in South Australia and, of those, some will be excluded by certified agreement. It has been suggested that another way of tackling the problem of property division at the end of a de facto relationship is for the State of South Australia to refer its constitutional coverage of this topic to the Commonwealth, and stand by while the Commonwealth plonks it with the Family Court. I agree with the parliamentarian who said that the procedures of the Family Court would need to be changed before we committed more State disputes to its jurisdiction. Quite apart from this, I think the referral would be a bad move constitutionally, especially when Queensland is the only State that has done this or proposes to do it. Moreover, the argument over whether the law should embrace homosexual couples is something that people of good will and, indeed, States may legitimately disagree with, and this issue would prevent the Commonwealth Parliament legislating on the matter for all Australian jurisdictions. If the Commonwealth Parliament did legislate for homosexual couples, some States might swiftly withdraw their referrals. When the Deputy Premier presented the Bill to the House, he did so in the form it had come from the other place. The definition of `de facto relationship' in clause 3 now includes a homosexual relationship between two people who live together on a genuine domestic basis. In his second reading speech on the Bill, the Minister neglected to mention this definition and the fact that he and his Government would be moving to strike it from the Bill. I think that is a deliberate oversight and one that does the Government no credit. If the Government must strike from this Bill. TheHon.S.J.Bakerinterjecting: Mr ATKINSON: No. I support the Bill in its current form, and if the Deputy Premier had been listening carefully he would acknowledge that I have given compelling reasons why I support it in its current form, and that is that the argument that somehow this Bill, by creating a lesser form of relationship, might derogate from civil marriage is not, in my view, an argument because, with civil marriage, there is not much left to derogate from, and I hope that is clear to both the member for Newland and the Deputy Premier. So, if the Government must strike this homosexual provision from the Bill, let it give us the reasons in the second reading speech instead of ducking for cover and shamefacedly using its numbers at the Committee stage to delete the definition without debate. MrRossiinterjecting: Mr ATKINSON: I ask that the member for Lee withdraw the reference to me as a `hypocrite'. The DEPUTY SPEAKER: The member for Lee is interjecting improperly. I ask him to withdraw the use of the word `hypocrite'. It is not good parliamentary language. Mr ROSSI: I was stating a fact that the member was saying that we are using our numbers in this House. The DEPUTY SPEAKER: The honourable member is coming very close to contempt of the Chair and, like with Queen Victoria, the Chair is not amused. I ask the honourable member please to formally withdraw. Mr ROSSI: I shall refuse to withdraw and am leaving the House. The DEPUTY SPEAKER: The Chair has no choice but to name the honourable member. I ask the honourable member to consider what is an act of gross impudence towards the Chair. I will give the honourable member a couple of seconds to think this over, otherwise he will be named. I ask the honourable member to withdraw. The Chair has no alternative. I have no discretion. Mr ROSSI: I withdraw the word `hypocrite', but the member for Spence definitely has double standards. MrClarkeinterjecting: The DEPUTY SPEAKER: I thank the member for Ross Smith. The honourable member is acting in gross defiance of the Chair. He is qualifying the withdrawal. I simply cannot tolerate behaviour of this kind from either side of the House. I ask the honourable member unequivocally to withdraw his last comment. The honourable member is stretching the patience both of the Chair and of the House. Mr ROSSI: I am trying to get advice, Mr Deputy Speaker, so I am afraid that you do have to give some leeway. The DEPUTY SPEAKER: The honourable member is acting in gross ignorance of parliamentary procedures. Mr ROSSI: I will withdraw the comment. The DEPUTY SPEAKER: I thank the honourable member. The member for Spence. Mr ATKINSON: I find that an extraordinary application of the Standing Orders: an Opposition member would have been out on his ear five minutes ago. In my travels around my electorate I have met three homosexual couples two male and one female who live or lived together on a genuine domestic basis and had done so for a long time. Mr Condous: Were you on your bike? Mr ATKINSON: Yes, I was on my bike on each occasion. In my opinion, justice demands that they be given the advantages of the Bill just like heterosexual de facto couples. A de facto relationship is not sacramental marriage. Having said that, I must concede that the only couple who still live in my electorate have approached me about the Bill and told me they do not favour this clause. The reason is that they regard the gay movement's lobbying for the definition as to use their word hubristic, and likely to cause complications for some homosexual couples and to evoke a backlash among straight people. The Australian Council for Lesbian and Gay Rights has written to Senator Sid Spindler, who has proposed the Sexuality Anti-Discrimination Bill, to ask him to withdraw that clause that treats same sex relationships on the same basis as de facto heterosexual relationships. MrBrindalinterjecting: Mr ATKINSON: The council's spokesperson, Ms Robyn Walsh, writes: We have to recognise that there is a deep division in our communities about the best way for the legal system to recognise our relationships. For this reason, and in contrast to the broad brush approach taken by Senator Spindler's Bill, we believe that it is more efficient and effective to deal separately with same sex relationship recognition in areas like superannuation, wills, child-care, workplace entitlements and the health system. Lesbian and Gay Community Action prefers a `wait and see' approach on this matter, but the President of the AIDS Council, Mr Will Sergeant, supports the definition as it now stands in the Bill. He says: Gay and lesbian relationships should not be denied the normal protection of the law. Some gay men and lesbians may not wish to associate themselves with the trappings of heterosexual relationships but the choice should be made available. Mr Rossi: We're not stopping them from doing anything; we are just not recognising them. MrBrindalinterjecting: Mr ATKINSON: I agree with the opinion of Mr Sergeant. Those gay and lesbian couples who do not want the trappings of this proposed law can make their own cohabitation agreement or otherwise evade the provisions of the Bill. Now is the appropriate time to include homosexual relationships in the legal definition of de facto relationships. In conclusion, the Bill is retroactive in that it applies to de facto relationships that were formed before its proclamation. I do not think that the Bill can be criticised on that account because those who would be subject to it have at least two means of avoiding its provisions. I commend the Bill to the House in its current form: it is a just proposal. 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