Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Bill

Second Reading

I now make a second reading explanation on the Statutes Amendment (Legalisation of Same Sex Marriage Consequential Amendments) Bill 2019, noting that the same amends marriage-related provisions in 19 acts of the parliament.

In 2017, the commonwealth parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Following the commencement of this act on 9 December 2017 the federal definition of marriage became gender-neutral and same-sex couples could access the status of marriage. Although the definition of marriage is a matter for federal law, many of our South Australian laws rely on or reference marriage. The government has undertaken a comprehensive review of South Australian statutes to identify which laws require amending to properly reflect the new gender-neutral definition of marriage.

The bill makes basic, mostly terminological or technical, updates to marriage-related provisions in 19 acts of parliament, as identified, requiring amendment. The primary change proposed by the bill is to remove gendered references to marriage in South Australian legislation. The bill changes numerous instances of 'husband or wife' to 'spouse' and 'widow or widower' to 'surviving spouse'. This ensures that the legislation matches the commonwealth definition of marriage. The bill also includes amendments to the Family Relationships Act 1975 that will create consistent requirements in relation to parentage presumptions.

Previous amendments to the Family Relationships Act provided parentage recognition rights to same-sex couples but also introduced a lot of complexity to the scheme. The opportunity has been taken to simplify this process so that a single test is applied to couples seeking to rely on parentage presumptions. The test will be that they are either married or in a qualifying relationship, as is already defined in the act.

The bill creates a new gender-neutral test for being de facto spouses for the purposes of four acts relating to superannuation, as the current definition expressly assumes that same-sex couples cannot marry. The bill also modernises the law in relation to marriage by removing several references to obsolete doctrines about married women's property. The bill repeals sections of the Births, Deaths and Marriages Registration Act 1996 that allowed married persons to change their registered sex or gender identity even though it would create a same-sex marriage. Now that commonwealth laws allow same-sex marriages, this confirmation is no longer needed.

The bill also fixes an anomaly whereby a same-sex couple could be simultaneously married and in a registered relationship under the Relationships Register Act 2016, something the act was not meant to allow—modern-day bigamy. Firstly, the bill removes a now unnecessary right to contact a same-sex partner when detained under the Terrorism (Preventative Detention) Act 2005, as same-sex couples are now fully covered under the rights to contact spouses or de facto spouses and do not need to be placed in a separate category.

The bill also makes small changes but has an important purpose: it ensures that our lives in relation to marriage are modern, relevant and inclusive of all legally married couples. This reform will also ensure that South Australian legislation is compatible with commonwealth law and therefore remove any risks of a provision being void under clause 109 of the Australian Constitution. May I acknowledge, in progressing this bill, the work undertaken by and the support of a number of my colleagues in cabinet who also have the responsibility of legislation that is being affected by this bill. I commend the bill to members for their, hopefully, favourable consideration and seek leave to insert the explanation of clauses without my reading the same.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Births, Deaths and Marriages Registration Act 1996

4—Amendment of section 29I—Application to change sex or gender identity

Subsection 29I(3) allows a person to apply to change their sex or gender identity despite the fact that if married they would, as a result of the change, be in a same sex marriage. Due to the legalisation of same sex marriage this provision is no longer required and this clause removes the provision accordingly.

5—Amendment of section 29O—Application for identity acknowledgement certificate

Subsection 29O(3) allows a person to apply for an identity acknowledgement certificate despite the fact that if married they would, as a result of the issuing of the certificate, be in a same sex marriage. Due to the legalisation of same sex marriage this provision is no longer required and this clause removes the provision accordingly.

Part 3—Amendment of Criminal Law Consolidation Act 1935

6—Amendment of section 78—Bigamy

This clause removes gender specific language in relation to marriage in respect of the offence of bigamy.

7—Amendment of section 79—Defences in cases of bigamy

This clause removes gender specific language in relation to marriage in respect of defences to a charge of bigamy.

Part 4—Amendment of Electoral Act 1985

8—Amendment of section 70—Errors etc in roll not to forfeit entitlement to vote

Section 70 provides that a female elector is not to be disqualified from voting should her surname be changed by marriage. This clause broadens the section to apply to any elector regardless of gender.

Part 5—Amendment of Evidence Act 1929

9—Amendment of section 16—Parties and their spouses competent and compellable in civil proceedings

This clause removes gender specific language in relation to marriage in respect of giving evidence in civil proceedings.

Part 6—Amendment of Family and Community Services Act 1972

10—Amendment of section 6—Interpretation

This clause removes the reference to marriage being between a man and a woman and substitutes it with gender neutral language.

11—Amendment of section 104—Order for payment of preliminary expenses

Section 104 provides that where a woman is pregnant or has given birth she may sue for expenses if she can prove that she is pregnant by someone who is not her husband. This clause gender neutralises the section by replacing the word 'husband' with 'spouse'.

12—Amendment of section 140—Evidence of mother as to paternity of child born outside marriage etc not to be accepted without corroboration except in certain cases

Section 140 provides that the evidence of a woman that she is pregnant by someone other than her husband must not be accepted without corroboration, except in certain circumstances. This clause gender neutralises the section by replacing the word 'husband' with 'spouse'.

13—Amendment of section 211—Power to make provisional order against person resident in reciprocating country

This clause removes gender specific language in relation to marriage in respect of maintenance orders against a spouse.

14—Amendment of section 245—Evidence of spouses

This clause removes gender specific language in relation to marriage in respect of giving evidence for or against a person's spouse.

Part 7—Amendment of Family Relationships Act 1975

15—Amendment of section 8—Presumption as to parentage

Section 8 provides that a child born to a woman during her marriage (or qualifying relationship) will be presumed to be the child of the mother and the husband or domestic partner.

This clause changes the word 'husband' to 'spouse' to reflect that the woman's spouse may not be a husband. The term 'domestic partner' is also changed to 'partner' by this clause which reflects the fact that a qualifying relationship is, by definition, made up of 'partners' not 'domestic partners'.

The effect of this amendment is that whether a woman is married to, or in a qualifying relationship with, a man or a woman, that person will be presumed to be the parent of the child born to the woman in the circumstances prescribed in the section.

16—Amendment of section 10A—Interpretation

This clause gender neutralises language in relation to marriage by removing definitions of 'married woman', 'wife' and 'husband' and substitutes them with the term 'spouse'.

This clause also clarifies that a 'qualifying relationship' includes a relationship that is registered under the Relationships Register Act 2016.

17—Amendment of section 10C—Rules relating to parentage

This clause gender neutralises language in relation to marriage. The effect of the changes to subsection (3) is that where a woman who is married or in a qualifying relationship undergoes a fertilisation procedure with the consent of her spouse or partner, the woman's spouse or partner (whether male or female) will be presumed to have caused the pregnancy and will be taken to be the father (in the case of a male spouse or partner) or the co-parent (in any other case) of the child.

Section 10C(3a) was introduced into the Family Relationships Act 1975 at a time when the presumption for parentage in 10C(3) applied to a mother and her partner who had been cohabiting for at least 3 years. The 3 year requirement in subsection (3) was later removed and, as such, subsection (3a) is no longer needed.

Clause 19 of this Bill inserts transitional provisions in relation to the changes to subsections (3) and (3a) which is explained in that clause.

18—Amendment of section 10HA—Recognised surrogacy agreements

This clause gender neutralises language in relation to marriage. The effect of this clause is that the spouse or partner of a proposed surrogate, regardless of gender, is to be a party to the relevant recognised surrogacy agreement.

Clause 19 of this Bill inserts a transitional provision in relation to the changes to section 10HA which is explained in that clause.

19—Insertion of Schedule 1

This clause inserts three transitional provisions. The first provides that in the period between the legalisation of same sex marriage and the commencement of the amending Act, a reference to a husband in section 10C(3) will be taken to have been a reference to a spouse. The effect of this clause is that, where a woman has undergone a fertilisation procedure after the day on which same sex marriage became legal, a female spouse of the woman who underwent the procedure will be deemed to be the co-parent of the child born as a result of that procedure.

To avoid doubt, this clause also provides that a partner of a woman who was taken to be a father or co-parent of a child born as a result of the woman's pregnancy in consequence of a fertilisation procedure under existing section 10C(3a) will still be taken to be the father or co-parent (as the case may be) of that child after the subsection is repealed.

This clause also provides that a female spouse or partner of a surrogate mother may only be a party to a recognised surrogacy agreement if the agreement was entered into after the commencement of the clause. The effect of this transitional provision is to prevent a person who was a female spouse or partner of the surrogate mother prior to the commencement of this clause from unwittingly becoming party to a recognised surrogacy agreement.

Part 8—Amendment of Judges' Pensions Act 1971

20—Amendment of section 9A—Spouse entitlement subject to any Family Law determination

This clause includes domestic partners within the scope of section 9A.

21—Amendment of section 11—Minimum pensions

This clause removes the gender specific language in relation to surviving spouses. This clause also includes surviving domestic partners as being able to receive a Judge's pension upon their death.

22—Amendment of section 17B—Purpose of this Part

Part 2A currently only applies to facilitating the division of interests under the Family Law Act 1975 of the Commonwealth between spouses who have separated. This clause amends section 17B to include domestic partners who have separated.

23—Amendment of section 17K—Pension not payable to spouse or domestic partner on death of Judge if split has occurred

This clause provides that a pension is not payable to the domestic partner of a Judge if a split has occurred. At present, the section only applies to spouses.

Part 9—Amendment of Law of Property Act 1936

24—Amendment of section 100—Assurance policy by spouses

This clause removes gender specific language in relation to marriage in respect of assurance policies.

Part 10—Amendment of Limitation of Actions Act 1936

25—Amendment of section 3—Interpretation

This clause removes gender specific language in relation to marriage.

26—Amendment of section 32—Further provisions as to application of Act to trusts

Due to the fact that married women can own property in their own right, this clause removes the concept of separate use by married women.

Part 11—Amendment of Parliamentary Superannuation Act 1974

27—Amendment of section 5—Interpretation

This clause removes gender specific language in relation to surviving spouses.

28—Amendment of section 7A—Putative spouses

This clause removes gender specific language in relation to putative spouses.

Part 12—Amendment of Police Superannuation Act 1990

29—Amendment of section 4A—Putative spouses

This clause removes gender specific language in relation to putative spouses.

Part 13—Amendment of Real Property Act 1886

30—Amendment of section 69—Title of registered proprietor indefeasible

This clause removes paragraph 69(g) which relates, inter alia, to a wife's prevailing title where a husband has been wrongly registered as a co-proprietor of land belonging to his wife.

31—Amendment of section 111—Transfer by registered proprietor to spouse etc

This clause removes gender specific language in relation to marriage in respect of transferring an estate or interest in land.

Part 14—Amendment of Relationships Register Act 2016

32—Insertion of section 13A

The Relationships Register Act 2016 does not permit a person who is married to be in a registered relationship. This clause puts it beyond doubt that if a person was party to a same sex marriage that took place overseas before the day on which overseas same sex marriages were recognised as legal in Australia and was also a party to a registered relationship on or before that day, the registration of that relationship is revoked.

Part 15—Amendment of Settled Estates Act 1880

33—Amendment of section 44—Tenants for life etc may grant leases for 21 years

This clause removes reference to the concept of a person owning or acquiring property in right of their wife.

34—Amendment of section 45—Against whom such leases shall be valid

This clause removes gender specific language in relation to marriage and removes reference to the concept of a person owning or acquiring property in right of their wife.

Part 16—Amendment of Solicitor-General Act 1972

35—Amendment of section 9—Leave on retirement

This clause removes gender specific language in relation to surviving spouses.

36—Amendment of section 10—Pension rights of Solicitor-General and application of Judges' Pensions Act 1971

This clause removes gender specific language in relation to surviving spouses.

Part 17—Amendment of Southern State Superannuation Act 2009

37—Amendment of section 7—Putative spouses

This clause removes gender specific language in relation to putative spouses.

Part 18—Amendment of Stamp Duties Act 1923

38—Amendment of Schedule 2—Stamp duties and exemptions

This clause removes gender specific language in relation to surviving spouses.

Part 19—Amendment of Superannuation Act 1988

39—Amendment of section 4A—Putative spouses

This clause removes gender specific language in relation to putative spouses.

Part 20—Amendment of Terrorism (Preventative Detention) Act 2005

40—Amendment of section 35—Contacting family members etc

This clause removes a now outdated reference to a same sex partner.

Debate adjourned on motion of Ms Cook.