Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

The government of course is acting responsibly by recognising that surrogacy is a reality today. Of course, the act already has laws that allow for the transfer of legal parentage from the surrogate mother to the commissioning parent. Victoria’s lower house of parliament has just recently passed the Assisted Reproductive Treatment Bill, which gives greater recognition to surrogacy arrangements in the state. Also, Mr Colin Barnett, Premier of Western Australia, has said the reintroduction of surrogacy laws is one of the first priorities for his government. The proposed government amendment introducing section 60HB recognises the reality that courts can and do transfer legal parentage as a result of a surrogacy arrangement—and it will be difficult to deny that this happens. Failure to recognise these orders would perpetuate inappropriate inconsistencies between state and federal laws and continue confusion and discriminatory treatment for families.

Question negatived.

by leave—I move:

That the House of Representatives be requested to make the following amendments:

(7)    Schedule 1, item 50, page 23 (lines 3 to 21), omit section 90RB, substitute:

90RB Meaning of child of a de facto relationship

                 For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

Note:   To determine who is a child of a person see Subdivision D of Division 1 of Part VII.

(12)  Schedule 1, item 50, page 29 (line 24), omit “application time.”, substitute:

                      application time;

or that the alternative condition in subsection (1A) is met.

(13)  Schedule 1, item 50, page 29 (after line 24), after subsection 90SD(1), insert:

     (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(14)  Schedule 1, item 50, page 29 (lines 27 to 31), omit subsection 90SD(3), substitute:

        (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(15)  Schedule 1, item 50, page 39 (line 25), omit “application time.”, substitute:

                      application time;

or that the alternative condition in subsection (1A) is met.

(16)  Schedule 1, item 50, page 39 (after line 25), after subsection 90SK(1), insert:

     (1A)    The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

(17)  Schedule 1, item 50, page 39 (lines 28 to 32), omit subsection 90SK(3), substitute:

        (3)    If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note:   Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(34)  Schedule 1, item 85, page 81 (after line 6), after the definition of commencement, insert:

designated agreed matters, in relation to 2 persons, means the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      of either person, or both persons, at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed;

             (b)    the maintenance of either of the persons;

in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires.

(35)  Schedule 1, item 85, page 81 (before line 7), before the definition of earlier participating jurisdiction, insert:

designated State/Territory financial agreement, in relation to 2 persons, means a written agreement:

             (a)    signed by both of them with respect to matters that include any designated agreed matters; and

             (b)    made under a preserved law of a State or Territory; and

             (c)    in relation to which, either:

                   (i)    a court could not, because of that preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the designated agreed matters; or

                  (ii)    a court could not, because of that preserved law, make an order under that law that is with respect to any of the designated agreed matters.

(36)  Schedule 1, heading to Division 2, page 81 (lines 22 to 24), omit the heading, substitute:

Division 2—Application of new Act to de facto relationships breaking down before commencement

(37)  Schedule 1, item 86, page 81 (line 27), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(38)  Schedule 1, page 82 (after line 17), after item 86, insert:

86A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before commencement may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:  Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:  Divisions 3 and 4 of this Part, and section 90UE of the new Act, are not affected by a choice under this item. Those Divisions, and that section, relate to de facto relationships that (if they are to break down) will break down after commencement.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

             (a)    the choice is unconditional; and

             (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

             (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

             (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

             (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                   (i)    any property being distributed; or

                  (ii)    any maintenance being paid;

                      under the agreement.

(5)    This subitem is satisfied for the choice if:

             (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

             (b)    each of the parties was provided, before the choice was signed by him or her, with:

                   (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                  (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

             (a)    the parties to the de facto relationship; and

             (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

             (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

             (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

(40)  Schedule 1, item 89, page 85 (line 5), omit “extend”, substitute “apply in relation”.

(41)  Schedule 1, item 89, page 85 (line 6), omit “extend”, substitute “apply in relation”.

(42)  Schedule 1, item 89, page 85 (line 8), omit “Note”, substitute “Note 1”.

(43)  Schedule 1, item 89, page 85 (line 12), omit “extend”, substitute “apply in relation”.

(44)  Schedule 1, item 89, page 85 (after line 13), after the note, insert:

Note 2:  The cases covered by paragraph (a) include a case where a de facto relationship has broken down before the transition time for the State and the parties to the relationship make a choice under item 90A.

(45)  Schedule 1, item 90, page 85 (line 35), omit “Parts VIIIAB and VIIIB of the new Act do not extend”, substitute “Subject to item 90A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation”.

(46)  Schedule 1, page 86 (after line 17), after item 90, insert:

90A Opting into the new regime

Choosing the new regime

(1)    The parties to a de facto relationship that broke down before the transition time for the State may choose for Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act to apply in relation to the de facto relationship.

Note 1:  Whether the parties will be able to obtain an order under those provisions of the new Act, or make a Part VIIIAB financial agreement, will depend on whether the tests found in those provisions are satisfied for the de facto relationship.

Note 2:  Items 91 and 92 are not affected by a choice under this item. Those items relate to de facto relationships that (if they are to break down) will break down after the transition time for the State.

When a choice can be made

(2)    A choice under subitem (1) can be made if:

             (a)    the choice is unconditional; and

             (b)    subitems (3), (4) and (5) are satisfied for the choice.

A choice is irrevocable.

(3)    This subitem is satisfied for the choice if no order (other than an interim order) under a preserved law of a State or Territory has been made by a court in relation to either of the following:

             (a)    how all or any of the:

                   (i)    property; or

                  (ii)    financial resources;

                      that either or both of the parties to the de facto relationship had or acquired during the de facto relationship is to be distributed;

             (b)    the maintenance of either of the parties to the de facto relationship.

(4)    This subitem is satisfied for the choice if:

             (a)    the parties have not made a designated State/Territory financial agreement in relation to their de facto relationship; or

             (b)    if the parties have made such an agreement, that agreement has ceased to have effect without:

                   (i)    any property being distributed; or

                  (ii)    any maintenance being paid;

                      under the agreement.

(5)    This subitem is satisfied for the choice if:

             (a)    the choice is in writing and signed by both of the parties to the de facto relationship; and

             (b)    each of the parties was provided, before the choice was signed by him or her, with:

                   (i)    independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and

                  (ii)    a signed statement by the legal practitioner stating that this advice was given to the party.

(6)    For the purposes of Part VIIIAB of the new Act, a choice can be included in a Part VIIIAB financial agreement for which the parties are the spouse parties.

Setting aside a choice

(7)    A court may make an order setting aside a choice if the court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the court does not set the choice aside.

(8)    A court setting aside a choice under subitem (7) may make such order or orders (including an order for the transfer of property) as it considers just and equitable to, so far as is practicable, return the rights of:

             (a)    the parties to the de facto relationship; and

             (b)    any other interested persons affected by the choice;

to their position immediately before the choice was made.

(9)    Subsections 90UM(8) and (9) of the new Act apply in relation to setting aside a choice as if:

             (a)    a reference in those subsections to subsection 90UM(1) or (6) of the new Act were a reference to subitem (7) or (8); and

             (b)    the reference in those subsections to section 90UM of the new Act were a reference to this item.

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendments (7), (12), (13), (15), (16), (38) and (46)

The effect of these amendments is to increase the number of individuals in respect of whom an amount may be paid out under the standing appropriation in section 21 of the Financial Management and Accountability Act 1997 in relation to the Special Account continued in existence by section 73 of the Child Support (Registration and Collection) Act 1988. They are covered by section 53 because they will increase a “proposed charge or burden on the people”.

Amendment (53)

The effect of these amendments is to increase the number of individuals in respect of whom an amount may be paid out under the standing appropriation in:

section 21 of the Financial Management and Accountability Act 1997 in relation to the Special Account continued in existence by section 73 of the Child Support (Registration and Collection) Act 1988; and

section 125 of the Health Insurance Act 1973; and

section 137 of the National Health Act 1953.

The amendments are covered by section 53 because they will increase a “proposed charge or burden on the people”.

Consequential amendments

The following amendments are consequential on amendments (7), (12), (13), (15), (16), (38) and (46):

(14), (17), (34), (35), (36), (37), (40), (41), (42), (43), (44) and (45)

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendments (7), (12), (13), (15), (16), (38), (46) and (53)

The Senate has long followed the practice that it should treat as requests amendments which would result in increased expenditure under a standing appropriation, although this interpretation is not consistent with other elements of the established interpretation of the third paragraph of section 53 of the Constitution. This has nothing to do with the introduction of bills under the first paragraph of section 53.

If it is correct that these amendments increase the number of individuals eligible for payments and benefits payable from standing appropriations, it is in accordance with the precedents of the Senate that the amendments be moved as requests.

Amendments (14), (17), (34) to (37), and (40) to (45)

These amendments are consequential on the requests. It is the practice of the Senate that amendments purely consequential on amendments framed as requests should also be framed as requests.

Government amendment (7), on a child of a de facto relationship and changes to parenting presumptions, will amend the definition of ‘child of a relationship’ for the purposes of the act. The amendment provides that a child is a child of a de facto relationship if the child is a child of both parties to the relationship. Government amendments (12) to (17) go to the geographical requirement. Government amendments (12) to (17) address issues raised by the Law Council of Australia’s family law section where de facto couples move to a referring state or territory during their relationship and separate before being ordinarily resident there for at least one-third of their de facto relationship. These amendments provide for couples in these circumstances to be able to access the regime if they are ordinarily resident in a referring state or territory when their relationship breaks down.

Government amendments (34) to (38)—and I can deal at the same time with amendments (40) to (46), which relate to opting into the new regime—implement the bipartisan recommendation 4 of the Senate Standing Committee on Legal and Constitutional Affairs report on the bill. The amendments insert a procedure enabling de facto couples in one of those states, or in a territory, whose relationship has broken down before the new Commonwealth de facto property settlement and spouse maintenance regime commences and who have yet to finalise issues between them to opt in to the new regime by mutual agreement.

The choice made to opt in will be subject to safeguards. These include requirements that the choice be in writing and signed by each party and be made only after each party has received independent legal advice and been given a signed statement by the legal practitioner that the advice was given. The opt-in procedure should also be available for de facto couples in South Australia and Western Australia if either of those states refer power, as other states have done.

I did take the opportunity earlier in my remarks of commenting on the legal and constitutional affairs committee report, of which we have adopted recommendation 4. From the government’s perspective, it is pleasing that we can do two things: firstly, compliment the legal and constitutional affairs committee for their work in this area and for making substantive recommendations in respect of what is complex legislation and, secondly, recognise that this government has sought to act on and implement those recommendations.

With those remarks, I commend these amendments to the Senate.