PROPERTY (RELATIONSHIPS) LEGISLATION AMENDMENT BILL
Debate resumed from 26 May
(Gosford) [4.23 p.m.]: I lead for the Coalition, which does not oppose the bill. Honourable members will have their own views on the legislation, and in the course of this debate I am sure the House will hear those views, but it is important that they address the issues in a non-emotive way. The bill is fundamentally an attempt to ensure that people in caring relationships are granted certain statutory rights by law. The test essentially is whether they are living in a relationship in which they care for one another and that the caring is not dependent upon a commercial relationship.
Accordingly, the bill seeks to amend the De Facto Relationships Act of 1984 to extend the application of the provisions of that Act to parties in relationships of a more widely defined class and also, in a sense, to make their property rights equivalent to the property rights of partners in a marriage by making them de facto partners or spouses rather than strangers so far as the legal system is concerned. The inevitable result is that the de facto relationships that exist under the existing De Facto Relationships Act between a man and a woman will be extended to parties of the same sex. The bill will allow the De Facto Relationships Act to extend to such relationships. It will not be necessary for the parties to have a sexual relationship, merely a relationship of caring.
Homosexual relationships were debated and resolved by this Parliament in 1984, when the legal impediments to such relationships among adults were removed by amendment of the Crimes Act. This bill in one sense finally recognises that such relationships between parties can be, and often are, of a caring nature and that, accordingly, the property acquired in such a relationship should be protected. The Coalition parties in the Legislative Council made clear that they had no opposition to the bill but supported an amendment to ensure that the bill would not recognise marriage. That amendment was accepted by the Government, and the Coalition moved a further amendment to the amendment that the bill not extend in any way to granting rights to parties under the bill to adopt children unless they already had such a right at law. The Government accepted that amendment also.
Marriage of course is a Federal matter, in any event. The New South Wales Parliament under the Federal Constitution has no power to make such a law. Nonetheless, it is important in view of a number of community concerns that it be made clear that the Act is not to be seen as a precedent or an endorsement for a change of the law in relation to marriage at a Federal level and, similarly, in relation to the adoption of children. The Coalition’s amendment, which was accepted by the Government, was, in a sense, also not strictly necessary as the bill does not relate to the adoption of children. However, it was important to make the statement to some concerned sections of the community that the bill was not to be seen to open the way for further legislation to change the law in relation to the adoption of children so that people who were not presently entitled to adopt children would be able to rely on this legislation to adopt them.
The Coalition acknowledges that when relationships break up many injustices may occur, especially in relation to the distribution of property. Often it is very hard to prove who contributed what financially to the relationship and such matters tend to result in Supreme Court actions in which trust arrangements are alleged. These are often complex and hard to prove, but that is understandable, given the nature of adversarial legislation. The Coalition is also aware of many problems that have arisen about intestacy when parties who have been in a relationship, but have not been provided for in a will or because there is no will and because their relationship is not recognised by the law, have been unable to make a claim under the Wills, Probate and Administration Act in intestacy cases.
The decision of the Supreme Court in July 1998, which recognised that a party to a gay relationship could be classified as a dependent under that Act, was ground breaking. It recognised the dependent nature of such relationships. So far as family provisions are concerned, the statutory extension is an extension of the Supreme Court decision. However, the legislation breaks new ground in regard to intestacy, as there has been no basis upon which people in these caring and dependent relationships have been able to make a claim because they did not fall within the schedule
of parties entitled to succeed on intestacy. This legislation will provide them with such a basis. The legislation is not opposed by the Coalition, as it recognises the property relationships that people have built up.
The law has always worked on the basis that it is important to recognise people’s property rights. Our law is founded on recognition of property rights. In fact, law is often expressed in terms of property rights. Accordingly, when parties are in a relationship that involves property it is appropriate that there be recognition of what is to happen to the property in the event of dissolution of the cohabitation arrangements or death. The legislation makes some important changes to legislation, such as the Coroners Act, in relation to the holding of inquests and post mortems. The legislation also refers to the right to give consent to certain medical procedures and dental procedures and, in addition, will grant the right to give consent to certain organ transplants and certain other procedures under the Anatomy Act and the Human Tissue Act.
This legislation comes about in the month which marks the fifteenth anniversary of the decriminalisation of homosexual relationships between adults and reflects the subtle changes in New South Wales since that time. It is not entirely unique to New South Wales; certain inheritance rights have been extended to such relationships in Victoria and the Australian Capital Territory, and similar legislation is now before the Queensland Parliament. The same statutory hurdles have to be fulfilled as must be fulfilled in heterosexual relationships, such as the requirement that the parties live together for a certain period; the recognition of the jurisdiction of the District Court rather than the Supreme Court, which is a far less expensive and less formal court; and the need to establish a case that is evidentiary in law.
Most of the community would recognise the non-discriminatory approach to such relationships. The Government made such a commitment in 1995. In 1998 the Hon. Elisabeth Kirkby brought before the Parliament the De Facto Relationships Amendment Bill because the Government had failed to honour its commitment to introduce the appropriate legislation. Her bill covered aspects of property redistribution following a relationship breakdown or death, as well as maintenance and inheritance rights. The Gay and Lesbian Rights Lobby has campaigned for some time for greater legal recognition of same-sex relationships. In March 1998 the Victorian Equal Opportunity Commission produced a 112-page report detailing discriminatory practices and ways to eliminate them.
The report is significant because it identified 26 State Acts and 17 Federal Acts which effectively or implicitly discriminated against gay or lesbian relationships. Victoria now has limited recognition of same-sex relationships. New South Wales first granted statutory recognition to the rights of survivors of same-sex relationships in December 1998 when amendments to the Workers Compensation (Dust Diseases) Act redefined de facto relationships so that homosexual couples could receive the same benefits as heterosexual couples. This legislation is not the first of its kind, although it is far more comprehensive than the workers compensation bill of 1998. Similarly, that bill was not opposed by the New South Wales Coalition parties.
The Coalition consulted widely in its assessment of the bill. It consulted with various churches and it received representations from several organisations, including those in favour of the legislation and those opposed to it. It received a significant representation from the Catholic Education Commission in a letter signed by Bishop Geoffrey Robinson and the Director of the Catholic Education Office, Mr McDonald, requesting that time for further consideration of the legislation be extended. The letter stated:
Marriage in the Catholic view is, of course, the foundation of all family life. Catholic schools in particular, and other Catholic institutions in general, exist to support, and promote family life.
Consequently the Bill as drafted presents Catholic institutions with a serious moral dilemma.
The Catholic Education Office did not oppose the legislation, but it asked for more time to consider it. The Government chose not to grant that request. The New South Wales Coalition parties are cognisant of the Church’s request, but the timing of this legislation is in the hands of the Government, and it is the Government that has to accept responsibility for denying the Church’s request. The bill does not in any respect refer to marriage or adoption of children, which are two key issues; it relates to property matters. There is no suggestion that it makes any attempt to subvert the rights of any church or provider of educational facilities to continue to run schools in accordance with their teachings.
Not only is this Parliament now passing legislation recognising property rights but also, since 1984, has passed other legislation dealing with relationships, particularly anti-vilification legislation which prohibits vilification on the basis of homosexuality and anti-discrimination laws which
prohibit discrimination in renting and employment, except in private schools. Legal protection has been granted to the gay community by attempts through the legal system and law enforcement to target homophobic conduct which at times, in some tragic cases, has resulted in assaults and even death. Such violent conduct cannot be condoned by any civilised society and it is certainly not being condoned in New South Wales. It is appropriate also that the gay community should recognise the rights of other people and obligations accepted by everybody to prevent vilification and targeting based on personal beliefs or sexuality.
The legislation amends a number of bills and is quite comprehensive in its impact. It amends the Anatomy Act, the Bail Act, the Compensation to Relatives Act, the Conveyancers Licensing Act, the Coroners Act, the Dentists Act, the Family Provision Act, the Guardianship Act, the Human Tissue Act, the Insurance Act, the Stamp Duties Act, the Mental Health Act, the Retirement Villages Act, and the Wills, Probate and Administration Act. The effect of this bill on each Act will be to acknowledge that, regardless of the sexuality of the relationship, a spouse is the recognised survivor. Essentially, the concerns expressed throughout the community about the lack of legal recognition of property rights will be ameliorated. This bill provides a legislative framework acknowledging that people who are dependent on one another, who care for one another and who can show evidence of a longstanding relationship will have their property rights respected by the law.
The amendments that were moved in the Legislative Council by the Coalition and by Reverend the Hon. F. J. Nile in respect of marriage and adoption of children are significant. The legislation will make important changes and, in that context, I acknowledge the work that has been contributed in the preparation of this legislation and the importance of this bill to many people. Demonstrations by members of the gay and lesbian community occurred outside this House during the term of the last Parliament, urging Premier Bob Carr to fulfil the promises he made and did not keep. Finally, the Government has introduced this legislation. Accordingly, the Coalition will not oppose the bill. I look forward to the debate that will ensue.
(Bligh) [4.44 p.m.]: I support this bill because lesbians and gay men for most of this decade have been looking to this Parliament to provide basic human rights which the rest of us take for granted. Those people have been looking to this Parliament to recognise the simple fact that they form close and committed personal relationships; that they need and are entitled to have the protection of the law in times of crisis. Many lesbians and gay men are my constituents. As their parliamentary representative, I have long supported their campaign to have their relationships recognised legally.
Before the 1995 election I committed myself to doing everything I could to achieve that representation. Over the past four years I have used every means available to bring this issue before Parliament, such as question time, private members’ statements and presentation of petitions each sitting day. In September 1997 I introduced a private members bill, the Significant Personal Relationships Bill, which provided for comprehensive legal recognition of close personal relationships, including same-sex relationships. Incidentally, similar legislation has been introduced into the Tasmanian Parliament and also has been commended by the Victorian Equal Opportunity Commission. I also wrote to the Attorney General several times about these issues.
Before the 1995 election, the Premier made specific commitments. He committed a Labor government to ensuring that same-sex partners had the very same rights and responsibilities as have heterosexual de facto people when their partner is hospitalised or incapacitated, and to obviating discrimination in the operation of wills, probate and family provisions. Those commitments were not honoured. Instead, less than six months before the last election, the Government referred the issue to the social issues committee of the Legislative Council.
After four years and one full parliamentary term, the Government has now honoured its commitment. I commend the Premier, the Attorney General and the Government for introducing this legislation so early in this session and for going further than the limited commitments that had been made in 1995. I also commend the Opposition for its decision to support the bill. Legislation such as this - basic human rights legislation - deserves bipartisan support.
The death, illness or serious injury of one’s partner can be very stressful. The breakdown of a long-term relationship can be equally traumatic. In such circumstances, people should not have to face additional stress or trauma because the law is unable to provide for them. They should not be denied access to the law simply because their partner happens to be of the same sex. A compassionate and tolerant society should not accept a situation where that can happen.
The Property (Relationships) Legislation Amendment Bill addresses almost all areas of crisis faced by same-sex couples. It provides legal redress when relationships break down, when one of the partners dies with either no will or with an inadequate will, and when one of the partners is ill or incapacitated. It will ensure that same-sex partners have the same rights and obligations as heterosexual de facto couples in the situations I have described. As such, this bill addresses the most pressing concerns of people who are engaged in same-sex relationships, but it goes no further than that. Therefore, it must be seen as a starting point. There is still much more that needs to be done to reform the law regarding close personal relationships. There are some signs that the Government recognises these factors: I cite the example of the Legislative Council social issues committee’s inquiry into interdependent personal relationships, which I understand will proceed.
This bill does not give same-sex couples full equality with heterosexual couples. Not all same-sex couples, or for that matter heterosexual couples or people in other close interdependent relationships, are included. After this bill becomes law, possibly 30 or more New South Wales statutes will still not recognise same-sex relationships. In fact, in several instances, this bill specifically ensures that outcome. There will be numerous situations where same-sex partners will not be able to exercise the same rights or be subject to the same obligations as are heterosexual de facto partners.
Most significantly, this bill does not amend the Anti-discrimination Act to include same-sex relationships. The Anti-discrimination Act gives heterosexual de facto couples a means of seeking redress against employers, service providers and others who engage in discriminatory practices. Same-sex partners are denied that means of redress and will continue to be denied that redress after this bill is passed and becomes law. I understand, however, that the New South Wales Law Reform Commission’s review of the Anti-Discrimination Act is now almost complete, and its report will soon be released. I hope the Law Reform Commission’s review and report will lead to the inclusion of same-sex couples.
There are other omissions. For example, the Local Government Act requires councillors to disclose any financial interest they might have in a matter before council. They also are required to disclose the interest of their spouse or heterosexual de facto partner if it is known to them. This obligation does not extend to a councillor who has a partner of the same sex. In fact, the bill includes an amendment to the Local Government Act to ensure that this remains the case! Similarly, a hotel licensee who has his or her licence suspended may transfer the licence to his or her heterosexual partner. This is not the case for a licensee who has a same-sex partner.
The other major omission is the many New South Wales laws relating to public sector superannuation schemes. These laws discriminate harshly and unfairly against the same-sex partners of police officers, teachers, nurses and others working in the public sector. I understand that New South Wales is prevented from acting unilaterally to extend these laws to include same-sex couples. Changes to Commonwealth law are required. There is, I believe, a private member’s bill before the Commonwealth Parliament which seeks to make the necessary changes. I understand that it has the support of the Opposition and some Liberal members. I hope that a Government which claims to govern for all Australians would support that bill.
The Property (Relationships) Legislation Amendment Bill provides a new definition of "de facto relationship". This new definition is a significant advance on the definitions contained in the draft legislation which the Government had prepared during the last Parliament, but never introduced. It is also superior to the definition contained in the De Facto Relationships Amendment Bill, the private member’s bill introduced into the Legislative Council last year by the Hon. Elisabeth Kirkby.
The new definition simply requires two persons to live together as a couple. Previous definitions effectively required persons in de facto relationships to live together "like a married couple". This is inappropriate for persons in same-sex relationships, or indeed for people in heterosexual relationships who wish to define and establish their relationship on its own terms.
The bill also writes into law a non-exhaustive checklist of factors to assist any court which is required to determine whether or not a de facto relationship exists, or had existed, between two persons. The courts have long had regard to such a list. Such a list was set out by Justice Powell in his judgments in the earliest cases brought under the De Facto Relationships Act. The checklist contained in the bill largely repeats Justice Powell’s list.
The courts are given considerable discretion in using this checklist. Significantly, the absence of any particular factor should not prevent a court from determining that a de facto relationship exists, or
had existed. The bill states that none of these factors, or any combination of them, "is to be regarded as necessary for the existence of a de facto relationship". One of the factors to be considered is whether or not a sexual relationship exists. Certainly, a sexual relationship can indicate intimacy and affection within a relationship. But people may continue to live together as a couple long after sexual relations have ceased. Indeed, two people may live together as a couple without ever having had a sexual relationship. What they do have is "a mutual commitment to a shared life", to quote one of the other factors listed in the bill.
There has long been a view, however, that a de facto relationship must be a sexual relationship. Professor John Wade, the leading academic expert on de facto relationship law has stated:
Certainly at some stage of a relationship it would need to be established that a sexual relationship existed between the parties. Without this it would be hard to characterise the relationship as like a marriage.
Significantly, the definition of "de facto relationship" contained in the bill removes the requirement that a de facto relationship be like a marriage. Certainly, evidence showing the existence of a sexual relationship has long featured in cases under the De Facto Relationships Act. Moreover, judges have complained when this evidence has not been presented with sufficient clarity. Justice Young, in his judgment in a 1997 de facto relationship case, wrote:
I have found a difficulty in this case, as I often find in this sort of case, that counsel, in putting questions to the witnesses, tend to get a little prudish. Accordingly, questions are often put in code about `emotional relationships’ or `relationships’, and it is sometimes not clear to either the witness or the judge as to exactly what is meant.
Following this judgment, Professor Wade offered this advice through the De Facto Relationships Legal Service:
It is therefore recommended that affidavits and questions be framed with specific reference to `sexual intercourse’ and the regularity with which sexual intercourse took place in all cases in which the existence of a de facto relationship is disputed.
Such an approach would require highly invasive inquiries of the most intimate and private aspects of a personal relationship. I would hope that this bill would make such intrusive inquiries unnecessary. While the new definition represents a significant advance, it has two significant limitations. People in de facto relationships wanting to assert their rights may still have to satisfy a court that such a relationship exists or existed. This will apply as much to same-sex partners as it now does to heterosexual de facto partners. Proving the existence of a de facto relationship may involve costly and protracted litigation. It may involve a court examining all aspects of a private personal relationship.
Clearly, an inexpensive and straightforward process is needed to enable people in such relationships to establish the existence of their relationship. The "recognised relationship" option contained in my Significant Personal Relationships Bill provided such a process. I hope that the Standing Committee on Social Issues inquiry will consider this matter.
The other major limitation is the requirement that de facto partners live together. Not all couples live together. Indeed, not all happily married couples live together. People can and do have other living arrangements which enable them to maintain, sustain and build their relationships. In some cases this may be the conscious choice of the people involved. In other cases employment demands, health, the need to be close to children from a previous marriage or relationship are some of the reasons why people live apart.
My Significant Personal Relationships Bill recognised and provided for such situations. The Australian Capital Territory’s Domestic Relationships Act does not require persons in a domestic relationship to live together. The failure of the law to acknowledge such relationships has serious consequences in the case of death of a partner. The amendments to the Wills, Probate and Administration Act and the Family Provision Act require that the couple be living together at the time of the partner’s death.
But this may not be possible. Take for example a de facto couple who have lived together for many years. One partner needs to go into a nursing home. The other moves to be close to the home and visits every day. Several months later the nursing home resident dies. The deceased’s will cannot be found. The other partner is in an impossible position. This is not a fictional example. It is a real life case which a solicitor experienced in this area has brought to my attention. And he tells me he is aware of other, similar cases. This is an issue which I also hope the social issues committee will consider.
The bill will rename the De Facto Relationships Act. It will become the Property (Relationships) Act. The new name is entirely appropriate. It will reflect the primary purpose of the
Act, which is to provide for the redistribution of property when a relationship breaks down. I am informed, however, there is some concern among family lawyers about the Act’s ability to serve this primary purpose. There is concern that the De Facto Relationships Act - and the way it is now being interpreted - has not kept pace with developments elsewhere in the law. I am informed that there have been significant developments elsewhere in the law, notably in equity law, which have significantly expanded the remedies available to persons seeking fair and just outcomes when a relationship breaks down. This contrasts with what is seen as a narrow and rigid interpretation of the De Facto Relationships Act.
The De Facto Relationships Act will be 15 years old this year. These amendments are the first significant amendments to the Act since it was introduced in 1984. If family lawyers are correct, it is clearly in need of review. I understand that the Government already recognises this and is considering referring what will be the Property (Relationships) Act to the New South Wales Law Reform Commission. I hope that if this happens the terms of reference are sufficiently broad to allow the Law Reform Commission to conduct a comprehensive inquiry into the law and into close personal relationships. I also hope that the New South Wales Law Reform Commission will rise to the challenge of conducting such an inquiry if it is given the opportunity.
The Law Reform Commission ducked the challenge on the last occasion it was given such a chance. In 1981 the then Attorney General requested the Law Reform Commission to inquire into and review the law relating to family and domestic relationships, with specific reference to heterosexual de facto relationships. The commission limited its inquiry and report to heterosexual de facto relationships and ignored all others. I hope it is given the opportunity to complete the task it failed to complete 16 years ago.
The Property (Relationships) Legislation Amendment Bill is a significant move forward in reforming the law regarding close personal relationships. I commend the Government for taking this important step, and for continuing the social issues committee inquiry. I look forward to the issue being referred to the Law Reform Commission. These inquiries should continue the process. There is still more, much more, to be done.
(Lane Cove - Leader of the Opposition) [4.59 p.m.]: The Opposition recognises that the purpose of the Property (Relationships) Legislation Amendment Bill relates to property rights between homosexual couples and within relationships of dependency such as those involving parents and children. We accept that, in seeking to define a de facto relationship, the amendments will clarify these property and financial arrangements for a range of people in a range of relationships, and rightly so. The Opposition does not view this bill as setting moral precedent but as a bill which clarifies, and which removes anomalies and inconsistencies. The Opposition also acknowledges that the bill does not affect laws relating to marriage or those concerned with the adoption of children. Members of the House will be aware of the history leading up to this bill. It flows from a commitment by the Australian Labor Party during the 1995 election campaign. When Labor failed to move on that promise, on 24 June 1998 the Hon. Elisabeth Kirkby introduced a private member’s bill which dealt with various aspects of property rights in relationships coming to an end.
The bill dealt with death, maintenance and inheritance rights. A number of precedents were set between then and the introduction of this legislation. In July last year the Supreme Court awarded a Sydney man part of his homosexual partner’s estate by accepting his claim to being a dependant. This ruling came despite the fact that there was no recognition of same-sex couples in legislation existing at the time. Then, on 1 December last year, amendments to the Workers Compensation Act redefined de facto relationships to include homosexual partners in terms of the Act. So far as homosexual partnerships are concerned, this legislation in many ways formalises what has become practice.
The bill also helps to standardise the New South Wales law with Commonwealth trends and legislation - for example, with regard to superannuation and equal opportunities. Amendments that would also assist de facto or dependent partners include the right to advocate and make decisions in cases of death and incapacitation. The amendments would also allow a de facto partner to make decisions as to the treatment of body parts in the event of death. The widening of de facto relationships to include family relationships - for example a son or daughter looking after an aged or incapacitated parent - gives parties wider rights than afforded at present. The Opposition accepts that there is community benefit in this bill, and we will not oppose it.
(Upper Hunter - Leader of the National Party) [5.01 p.m.]: I lead on behalf of the National Party in this debate. I make it clear that I
support those parts of the bill that make it easier for children who are carers to make a claim on an estate in the event of intestacy. This is an important recognition of the increasingly important role of carers in our ageing society. However, I oppose the elements of the bill that might have the consequence, intended or unintended, of giving a homosexual partner priority over a natural family in the event of intestacy, and I will therefore abstain should a division be called on the bill. I oppose any legislation that in any way undermines the sanctity of marriage and the family unit.
Yesterday I received a copy of a letter from the Catholic Education Commission asking that consideration of the bill be deferred for one month to allow consideration of its likely long-term impact on the institution of marriage; consideration of its possible impact on the enrolment policies and practices of catholic schools; consideration of its possible impact on family provision legislation and guardianship legislation in particular; and consideration of its impact on general service provision for families, including the provision of services to retired persons.
I support the call by the commission and hope that the Government will accede to its request to defer this debate for a period to allow what is obviously a vital part of consultation on this issue. I note that, despite the Government’s claims that this is merely a property bill, it is certainly being viewed otherwise by the homosexual community. In particular I refer to an article that appeared in the Sydney Morning Herald
on 27 May in which the convener of the New South Wales Gay and Lesbian Rights Lobby said:
. . . the law reform was a historical step for same-sex couples, occurring just after the 15th anniversary of the decriminalisation of male-to-male sex on May 18, 1984.
NSW is now at the forefront in same-sex laws in Australia by a long way.
Other commentators have made similar remarks, reading into this bill far more than is evident on a prima facie basis. The honourable member for Bligh just a moment ago advanced the issue as one of gay rights generally, not as an issue of property rights only. Indeed, the honourable member for Bligh referred to this issue as a starting point and alluded to some 30 or more statutes yet to be amended. Whilst the bill is predominantly about property issues, nevertheless it is being seen by many advocates of this general agenda of gay rights reform as a very small step along the expansive agenda which generally is laid out before us.
I note the amendments by Reverend the Hon. F. J. Nile in another place, which go a long way towards ensuring that the bill is not used to in any way validate same-sex relationships. I note that the Government accepted those amendments. I note also that a further amendment was moved by the Hon. J. M. Samios to ensure that the legislation does not validate homosexual adoption. I note that all of those amendments were adopted by the House. I support the amendments and ask the Deputy Premier, Minister for Urban Affairs and Planning, Minister for Aboriginal Affairs, and Minister for Housing to reiterate that for the benefit of future readers of Hansard
. At this time I have no doubt that the overwhelming majority of rural and regional communities do not support the prospects of same-sex marriage and homosexual adoption, and I and members of the National Party will oppose those aspects if they appear at any stage in the future.
I speak also on behalf of a number of newly elected National Party members who, because they have not yet made their maiden speeches, are not able to contribute to this debate. The honourable member for Oxley has told me that he had no doubt about the view of the overwhelming majority of his constituency on this matter and that he will abstain should a division be called. The honourable member for Lismore asked me to state in this debate that he will abstain should a division be called. The honourable member for Burrinjuck asked me to state that she supports the carer aspects of the bill but does not support the homosexual property rights issue unless homosexuals have been in the role of a carer. I am pleased to be able to incorporate that in my remarks to this House so that the opinions of those three members, who are unable to speak in this debate, are reported.
Other National Party members of Parliament will support parts or even all of the bill. They are entitled to exercise the right to state their opinion, and other members may also wish to exercise the right to state their opinion and/or abstain from voting. Accordingly, the National Party’s position is that members are free to consider either supporting the bill or abstaining in any vote that may take place. I also intend to abstain should a division be called.
(The Hills) [5.07 p.m.]: Essentially, this bill, as the title suggests, is a property bill. However, reading the debate in another place there are concerns that it has implications beyond that of simply providing for an equitable distribution of an estate when one partner in a relationship dies intestate. I understand that a
catalyst for this bill was the case of Howard v Andrews
, which was decided last July in the Equity Division of the Supreme Court. Maurice Roy Andrews had died intestate on 13 April 1996 aged 48 years. The plaintiff, Matthew Howard, had lived in the same unit as Mr Andrews for 12 years and had been in a homosexual relationship with the deceased for 14 years. So it was a long-term and, by all accounts, for most of that time a loving relationship. However, Matthew was unable to make a claim against the estate under the Family Provision Act as a de facto partner of Maurice, as the Act clearly specifies that an eligible person to make a claim against an estate is either the wife or the husband of a deceased person, or the de facto husband or de facto wife. That is, the two people in the relationship must be male and female. Matthew Howard had to apply under subsection 6 (1) (d) of the Act, as a person who was at any particular time wholly or partly dependent upon the deceased person.
It was on this issue that the whole case turned. Could Matthew Howard be said to have been wholly or partially dependent on Maurice Andrews? In his judgment Master Macready pointed out that dependency can only be decided on a case-by-case basis, and that, significantly, emotional as well as financial dependency was an important element of the relationship. Certainly, the emotional dependency appears to have been more real and more tangible than the financial dependency. Indeed, the major reason for Master Macready deciding that Matthew was an eligible person was the emotional bond between the two men, even though the relationship between Maurice and Matthew had deteriorated at the time of Maurice’s death.
Despite fears, Maurice indicated that he wanted to make sure that Matthew had a roof over his head. But he subsequently told a friend that he wanted to leave his estate to his nephews and nieces, saying, "Blood is thicker than water." This led Master Macready to conclude that the deceased was somewhat ambivalent about his relationship with Matthew after the death of his mother. I suspect that the major bone of contention in that case was the fact that Maurice Andrews had died only six weeks after his mother had passed away, leaving her estate to be divided equally among her three sons, each of whom received about $130,000. While the defendant, Maurice’s brother, had no real objection to Matthew inheriting the unit in which he had lived for the past 12 years and in which he was continuing to live, the fact that a substantial sum of money from his parents’ estate had passed into Maurice’s estate so soon before his death must have weighed heavily on Victor’s mind.
Ultimately, Master Macready gave the unit to Matthew, plus a sum of $25,000 to pay off the mortgage and to effect some minor repairs. So the existing system worked, except that the estate was reduced by the undoubtedly substantial cost of the legal fees. Under this legislation, Matthew Howard would have been described as being in a de facto relationship with Maurice Andrews and would not have been required to prove dependency to have been able to make a claim on the estate. That presumably would have meant significantly reduced legal fees, which is something I suspect most honourable members in this House and most of my constituents would applaud.
However, I am not persuaded that changes as profound as those embodied in this legislation are absolutely necessary to ensure that the proceeds of an estate are distributed fairly. In their excellent briefing paper, "Legal Recognition of Same Sex Relationships", Rachel Simpson and Marie Swain explicitly state that broadening the definition of de facto partner was a favoured model for achieving legal recognition of same-sex relationships. They state also - and this is important - that same-sex marriages were unlikely to be accepted by the community. In any case, as we have heard, only the Federal Parliament can legislate for marriage and divorce.
I read the debate in another place on this contentious piece of legislation and I can see merit in the arguments being advanced by both sides. My colleague the Hon. Dr B. P. V. Pezzutti raised the matter of the NIB Health Fund case and the impact that it had on Commonwealth Government legislation. It appears that NIB was discriminating unfairly against a homosexual couple and their child in not allowing them to take out family insurance. The Hon. Dr B. P. V. Pezzutti said that a gay or lesbian should have the same rights as a heterosexual partner when his or her partner is hospitalised and where the donation of organs is concerned. I cannot disagree with that. I note the honourable member for Bligh made similar remarks earlier in this debate.
The question is whether the legislation goes further than it needs to. Will it have the effect, as the Catholic Education Commission suggested in a letter to the Premier, of providing homosexual relationships with the same legal recognition and legal status as marriage? Is it, as the General Secretary of the Congregational Church, the Reverend Les Van Vorst, suggested in another letter, an attack on the Christian institution of marriage? Reverend the Hon. F. J. Nile made a valid point when he expressed concern about the use of the
word "spouse" in the bill and the introduction of the term "de facto spouse" in one of the Government’s amendments to schedule 2.25 to the bill. The latter term is a logical absurdity, an oxymoron. A person is either married, in which case he or she is a spouse, or a person is not married. If a person is living in a sexual relationship with another person, that person is a de facto partner. On this matter the Attorney General said in another place:
I do not think we ought to be obsessed with the origin of the word -
that is, the word "spouse" -
or its dictionary meaning. That is to fall into the etymological fallacy of thinking that words retain their original meaning in perpetuity . . . It is clear that in the proposed amendment the word "spouse" is used in a very special and specifically defined sense, and is not intended to be reflective of the original or dictionary meaning of that term. It is used as a drafting device, if you like, as words have to be used . . . I do not seek to undermine the ordinary or traditional view of what is a spouse, but I urge honourable members to look beyond the linguistic questions and at the substance of the amendment to see that what is being done is entirely appropriate . . . Regrettably, and unintentionally, the bill as drafted does reduce or change existing rights of heterosexual couples. The purpose and intent of the amendment is to rectify that difficulty.
I make no suggestion that words should retain their original meaning in perpetuity. That is a nonsense, but it is still no reason for this Parliament to hasten the process of change or to bastardise the English language. Given that this legislation is not supposed to have any effect on the laws relating to marriage, I find the use of the word "spouse" and the term "de facto spouse" - that oxymoronic term - to be rather unnecessary. The Hon. Dr B. P. V. Pezzutti suggested substituting "de facto partner" for "de facto spouse", an idea with which I concur. I note that the Attorney General indicated that this matter would be considered by an upper House committee, but that is putting the cart before the horse. The Standing Committee on Social Issues should have been allowed to report to the Parliament on the de facto relationships legislation before this bill was introduced. However, an amendment moved by Reverend the Hon. F. J. Nile was passed, an amendment referred to by the Leader of the National Party, which reads:
Nothing in the Property (Relationships) Amendment Act 1999 is taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between persons of the opposite sex.
The Hon. J. M. Samios moved an amendment to that amendment inserting at the end "nor entitle any person to seek to adopt a child unless otherwise entitled to do so by law". Those important, if not largely symbolic amendments, make it clear that this legislation is designed primarily to deal with cases like Howard v Andrews
, in which a partner in a gay relationship dies intestate. Regardless of the fact that the Attorney General thinks that the amendments are unnecessary, I believe that they are important. I ask the Minister to address the use of the terms "spouse" and "de facto spouse" in his reply, all the more so because the second reading speech of the Minister for Police was identical to the speech of the Attorney General, even though a significant number of amendments were moved, mainly by the Government, again suggesting that the legislation may have been drafted in haste.
Pursuant to sessional orders debate interrupted.