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1
Commonwealth Powers (De Facto Relationships)
Bill 2003
COMMONWEALTH POWERS (DE FACTO
RELATIONSHIPS) BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The purpose of the Commonwealth Powers (De facto Relationships) Bill
2003 is to refer to the Commonwealth Parliament, under to section
51(xxxvii) of the Commonwealth Constitution, power over certain
financial matters arising out of the breakdown of de facto relationships.
Reasons for the objectives and how they will be achieved
Under the Commonwealth Constitution, only the Commonwealth
Parliament has the power to make laws with respect to marriage, divorce
and related matters.
The Family Law Act 1975 (Cth) (Family Law Act) regulates marriage
breakdown and divorce and related matters such as the care of children
after relationship breakdown and the adjustment of property interests.
Part VII of the Family Law Act also deals with family disputes involving
children whose parents are not married following a reference of power
from all States (except Western Australia) between 1986 and 1990. Under
the Family Law Act the Family Court of Australia has jurisdiction to
resolve disputes in relation to matters that fall within the ambit of that Act.
In 1993, in Report No.44, De Facto Relationships, the Queensland Law
Reform Commission expressed the view that the Family Court was the
most suitable forum to hear and determine property disputes which may
arise from the breakdown of a de facto relationship.
In October 1995, the Commonwealth Powers Amendment Bill 1995 was
introduced to the Legislative Assembly. That Bill was in similar terms to
the Commonwealth Powers (De facto Relationships) Bill 2003 (the Bill).
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Commonwealth Powers (De Facto Relationships)
Bill 2003
However, the 1995 Bill lapsed following the prorogation of the Legislative
Assembly in March 1996.
In 1999, following a lack of agreement on the terms of a referral between
the Commonwealth and the States, Queensland enacted Part 19 of the
Property Law Act 1974 to enable de facto partners to resolve property
disputes following the break down of a relationship. Without this
legislation, de facto partners needed to base an action for redistribution of
property under the law of equity, trusts or contract.
The Commonwealth subsequently renewed its invitation to the States to
refer power over financial matters arising out of the breakdown of
relationships between de facto partners to enable jurisdiction over these
matters to the given to the Family Court and other federal courts having
jurisdiction to hear matters under the Family Law Act.
The Bill was prepared through the Standing Committee of Attorneys-
General, and is to be enacted in similar form by other States who have
accepted the Commonwealth's invitation to refer power.
The Bill will enable the passage of Commonwealth laws to give the
Family Court jurisdiction over de facto property disputes. The major
benefit that will flow from having de facto property disputes dealt with
under the Family Law Act is that both child and property issues will be
dealt with by a single court. This will reduce duplication of proceedings,
costs and help minimise the stress that accompanies the breakdown of
relationships.
The reference of power is made possible by section 51 (xxxvii) of the
Commonwealth Constitution, which gives the Commonwealth Parliament
the power to legislate with respect to "matters referred to the Parliament of
the Commonwealth by the Parliament or Parliaments of any State or
States".
A Commonwealth law made with respect to a referred matter only
extends to States by whose Parliaments the matter is referred, or which
afterwards adopt the law.
Administrative cost to Government of implementation
The referral of power to the Commonwealth will not result in any
increase in expenditure by the State.
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Commonwealth Powers (De Facto Relationships)
Bill 2003
Consistency with Fundamental Legislative Principles
The Bill is generally consistent with the fundamental legislative
principles set out in the Legislative Standards Act 1992.
Under the Legislative Standards Act 1992,section 4(3)(g), whether
legislation has sufficient regard to rights and liberties of individuals
requires a consideration of whether the legislation adversely affect rights
and liberties, or imposes obligations, retrospectively.
Clause 4(4) of the Bill extends the reference of power to the
Commonwealth to de facto relationships that ended before the
commencement of the Act.
The Commonwealth could amend the Family Law Act to extend
jurisdiction to all de facto relationships regardless of whether they ended
before the commencement of the relevant Family Law Act amendments.
However, the Commonwealth has indicated that its intention is to
legislate to allow for orders to be made in relation to relationships that have
broken down prior to the reference being made only where final orders
have not been made in State courts in relation to the property in dispute.
In addition, it is likely to allow applications for such orders to be made
where previous orders are later set aside under State law. The
Commonwealth does not envisage any other retrospective effect and final
orders in State courts would be a bar to applying to a court exercising
jurisdiction under the Family Law Act.
The Bill does not breach the above fundamental legislative principle
because the retrospectivity is beneficial and does not have an adverse
effect. The retrospectivity will allow greater access to the family law
scheme.
Section 4(2)(b) of the Legislative Standards Act 1992 requires legislation
to have sufficient regard to the institution of Parliament.
Clause 2 of the Bill provides that the Acts Interpretation Act 1954, section
15DA does not apply to this Act. Under section 15DA of the Acts
Interpretation Act 1954, an Act automatically commences 12 months from
assent day if a proclamation for commencement has not been made. A
regulation can extend the postponement of commencement for a further year.
Section 15DA limits the time the Executive is able to defer the
commencement of an Act passed by Parliament.
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Commonwealth Powers (De Facto Relationships)
Bill 2003
While it is acknowledged that it is generally not appropriate for an Act to
facilitate the indefinite deferral of the commencement of an Act, it is
considered reasonable in this instance. The reason for displacing section
15DA is that the Commonwealth has not yet provided the State with detail
of the proposed amendments to the Family Law Act that will be enacted in
response to the referral of power.
This displacement will ensure that referral does not become operative
before the Commonwealth has enacted the necessary amendments to the
Family Law Act, and the State is satisfied with the content of the
amendments.
CONSULTATION
Community
The Queensland Law Society and the Family Law Practitioners
Association were consulted.
Government
Relevant Government agencies and Departments were consulted during
the preparation of the Bill, including the Government Superannuation
Office and the Office of State Revenue.
The Bill was prepared through the Standing Committee of Attorneys-
General, in conjunction with the Special Committee of Solicitors-General
and the Parliamentary Counsels' Committee.
NOTES ON PROVISIONS
Clause 1 sets out the short title to the Act.
Clause 1(2) sets out the purpose of the Act, which is to refer certain
financial matters arising out of the breakdown of de facto relationships to
the Parliament of the Commonwealth for the purposes of the Constitution
of the Commonwealth, section 51 (xxxvii). Section 51(xxxvii) provides
that the Parliament has power to make laws with respect to "matters
referred to the Parliament of the Commonwealth by the Parliament or
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Commonwealth Powers (De Facto Relationships)
Bill 2003
Parliaments of any State or States, but so that the law shall extend only to
States by whose Parliaments the matter is referred, or which afterwards
adopt the law."
Clause 2 provides that the Act commences on a date to be fixed by
proclamation. Clause 2(2) displaces the operation of section 15DA of the
Acts Interpretation Act 1954.
Clause 3 defines certain words and expressions used in the proposed Act.
The Bill defines "de facto relationship" as "a marriage-like relationship
(other than a legal marriage) between two persons". This is inconsistent
with the definition of "de facto relationship" contained in section 36 of the
Acts Interpretation Act 1954.
Section 36 defines "de facto relationship" as "the relationship existing
between two persons as a couple because each is the de facto partner of the
other". Section 32DA then contains a detailed definition of "de facto
partner". However, the Bill departs from the section 36 definition to ensure
that the referrals made by referring States relate to the same category of
relationship.
Clause 4 deals with the reference of power. Power is referred to the
Commonwealth Parliament, to the extent to which it does not already have
power, over financial matters relating to de facto partners arising out of the
breakdown (other than by reason of death) of de facto relationships
between persons of different sexes. Power is also referred over the same
subject matter arising out of the breakdown of de facto relationships
between persons of the same sex.
Clause 5 provides that the Governor may, at any time, by proclamation
published in the gazette, fix a day as the day on which the references under
this Act are to terminate.
� State of Queensland 2003