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1
Discrimination Law Amendment Bill 2002
DISCRIMINATION LAW AMENDMENT
BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
There are three objectives of this Bill, namely:
1. To amend a range of Queensland laws to ensure that de facto
partners (regardless of their sexual orientation) have rights and
obligations consistent with those of married spouses where
possible.
2. To amend the Anti-Discrimination Act 1991 (ADA) to improve
its operation and achieve greater consistency with similar laws in
other States; and
3. To amend the Registration of Births, Deaths and Marriages Act
1962 to allow post-operative transgenders to obtain new birth
certificates in their reassigned sex.
Reasons for the objectives and how they will be achieved
Relationships law reform
Reasons for the objectives
The nature of the Australian family unit is dynamic with people
choosing a variety of life-partnering options such as marriage and de facto
relationships. The Australian Bureau of Statistics has reported that
marriage rates are declining and that the number of de facto relationships is
increasing.
Historically, legal recognition of partner relationships focussed on
marriage. However, with the increase in de facto relationships, laws need
updating to acknowledge and recognise de facto relationships, given that de
facto relationships raise similar issues to marriage. Both types of
relationships are based on financial and emotional interdependence.
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Discrimination Law Amendment Bill 2002
The recognition of de facto relationships upholds the principle of
equality before the law. Australia is a signatory to the United Nations
Convention on Civil and Political Rights. Under the Convention, all people
have the right to equal treatment under the law. Consequently, Queensland
laws should not discriminate against people in de facto relationships.
Further, society can only benefit socially and economically through
supporting stable and mutually dependent adult relationships. The
proposed comprehensive law reform package will reduce discrimination
against people in de facto relationships and give them the same rights and
obligations as people in a marriage relationship where possible.
Particularly, these reforms increase the human rights of gay and lesbian
people living in de facto relationships so that they will be treated before the
law in the same way as opposite sex couples and married people.
New South Wales, Victoria, Tasmania and Western Australia have
already comprehensively updated their statute books to recognise de facto
relationships, regardless of sexual orientation. Tasmania and South
Australia have announced a similar reform package.
How objectives will be achieved
The Bill amends or affects most Acts that confer rights or obligations on
spouses. The amendments to specific Acts extend the statutory benefits,
entitlements, powers, or protection that currently arise from a person's
status as a spouse in a marriage to people in a de facto relationship,
regardless of their sexual orientation. Amendments to specific Acts set out
in the Bill largely adjust provisions so that they are consistent with the
broader definition of spouse that includes de facto partners.
To streamline the reform process, the Bill inserts a definition of "spouse"
and "de facto partner" in section 32DA of the Acts Interpretation Act 1954
(AIA) to be applied in any Act where "spouse" is mentioned. The
definition is of general application and will apply to all references to
"spouse" in existing and future legislation, unless the Act or subordinate
legislation has a contrary intention. The definition of "spouse" includes
"de facto partner." "De facto Partner" means either one of 2 persons living
together as a couple on a genuine domestic basis but who are not married to
each other or related by family. The gender of the persons in the
relationship is not relevant. The definition further provides that in deciding
whether two persons are living together as de facto partners, any of their
circumstances can be taken into account, including:
· the length of their relationship;
· the degree of financial dependence or interdependence;
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Discrimination Law Amendment Bill 2002
· the degree of mutual commitment to a shared life, including care
and support of each other and children;
· the reputation and public aspects of their relationship.
Minimum cohabitation periods
Cohabitation is a key factor in the definition. People who have an
intimate relationship but who choose not to cohabit will not be included in
the definition of de facto partner. The reform package (on a general basis)
does not include a minimum cohabitation period before de facto partners
are entitled to receive benefits or be responsible for obligations under
legislation. The principle is that a particular right or benefit is conferred on
a de facto partner by virtue of being in a relationship and not because of its
particular length.
There are some exceptions to the above rule where an Act confers a
potentially large financial reward or obligation. In these cases, a minimum
two year cohabitation period applies for de facto partners to be eligible for
large financial benefits or obligations. This gives de facto partners and
their families certainty as to when they are eligible for such benefits
consistently across the statute book. Also, it seems just that where a large
financial benefit is to be awarded to a person due to their status as a de facto
partner, there should be some evidence of the partner's intention to have a
continuing committed relationship. The two year period demonstrates that
commitment.
The two year cohabitation period is consistent with the current pre-
requisites under Part 19 of the Property Law Act 1974, the Duties Act 2001
and the First Home Owner Grant Act 2000. These Acts confer a financial
benefit or obligation on one or both of the de facto partners of the
relationship.
The Queensland Government's position is that for the purposes of
consistency across the statute book, it is essential that large financial
rewards or obligations should only be conferred on de facto partners if they
have cohabited for two years. Further, it is undesirable that statutory
decision makers can confer benefits on de facto partners who have not
demonstrated the intention that the relationship is to be long term and
committed.
The Queensland Government appreciates that in taking this position, it
may be argued that the rights of citizens have been reduced by increasing
the cohabitation period under existing statutory schemes. To accommodate
this concern but to ensure a general consistency across the statute book, the
following approach in the reform package has been taken:
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Discrimination Law Amendment Bill 2002
· all present and future statutory schemes that confer a large
financial benefits or obligations are to provide for a two year
cohabitation period;
· under Lord Campbell's actions, WorkCover and government
superannuation legislation, the two year minimum cohabitation
period will apply except where:
-- the deceased left a child of the relationship (this will not
apply to the superannuation schemes); or
-- there is evidence that the de facto partners intended that
relationship to be long term and committed.
These exceptions to the two year cohabitation rule for financial benefits
and obligations will continue to provide the WorkCover Board, the
Government Superannuation Office and the courts with an ability to accept
claims from de facto partners who have not cohabited for the minimum two
year period where the facts of the case warrant the acceptance of the claim.
A transitional provision for WorkCover and Lord Campbell's actions
will allow people currently in de facto relationships over one year but less
than two years to continue to be eligible as of right under the two schemes
so that their rights have not been reduced under the amendments.
Commencement
The amendments will commence on proclamation. The delayed
commencement allows all Departments to amend subordinate legislation
and forms so that they are consistent with the broad definition of spouse in
the AIA.
Amendment of the Anti-Discrimination Act 1991 (ADA)
The ADA has been in operation for more than 10 years. During that time
community attitudes and social structures have undergone significant
change. While there has been a number of amendments to the ADA, it has
become clear that further reform is required if the ADA is to continue to
fulfil its objectives and keep pace with anti-discrimination legislation in
other Australian jurisdictions.
The ADA was enacted to promote equality of opportunity by providing
protection from unlawful discrimination, sexual harassment and associated
objectionable conduct. It achieves this by identifying a range of attributes
and prohibiting direct and indirect discrimination on the basis of these
attributes in a range of areas. In addition, it prohibits certain other conduct
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Discrimination Law Amendment Bill 2002
which promotes prejudice and unfair treatment and undermines
fundamental human rights. In a number of areas, the coverage provided by
the ADA no longer meets community expectations. The Bill will overcome
these deficiencies by:
· Introducing a new attribute of "family responsibilities" to
achieve consistency with the Industrial Relations Act 1999 and
ensure that people are able to fulfil family responsibilities not
already covered by the ADA (for example, care of aged parent)
without fear of discrimination;
· Introducing a new attribute of "sexuality" which will provide
more comprehensive protection for the general community, and
in particular for the gay and lesbian community;
· Introducing a new attribute of "gender identity" to protect people
of transgender identity and intersex people from discrimination
and bring Queensland into line with other Australian States and
Territories,
· Clarifying that the existing ground of "religion" includes
protection for "holding or not holding a religious belief" and
"engaging in, not engaging in or refusing to engage in a lawful
religious activity" to ensure protection for people with no
religious belief, such as atheists;
· Prohibiting discrimination on the basis of "breastfeeding" in all
areas covered by the ADA;
· Introducing new vilification laws to prohibit vilification on the
basis of sexuality and gender identity;
· Removing anomalous exemptions for religious bodies and non-
state school authorities which permit discrimination against
groups that the ADA was designed to protect; and
· Amending the prohibition on victimisation so that people will no
longer have to demonstrate an intention to bring an actual
complaint before the Anti- Discrimination Commission
Queensland (ADCQ) to gain protection.
In addition, the Bill will implement a number of reforms to improve
ADCQ and Anti Discrimination Tribunal (ADT) procedures. This is to
ensure the ADA continues to meets its original objectives of providing a
cheap and speedy process for resolving complaints. Existing ADCQ
investigation and conciliation processes have been criticised as being
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Discrimination Law Amendment Bill 2002
unnecessarily protracted and, accordingly, expensive and frustrating for
parties.
· Streamlining ADCQ investigation/conciliation processes by
giving respondents the option of seeking an early conciliation
conference without providing an initial written response to the
ADCQ;
· Expediting referral of unconciliable complaints to the ADT by
giving complainants the right to require referral following a
conciliation conference. (At present, the complainant only has
this right when the Commissioner has determined a complaint
cannot be resolved by conciliation.)
· Ensuring greater certainty and fairness for parties by setting the
ADT scale of costs at the District Court scale. (At present, the
lack of any set standard creates inconsistency and uncertainty for
parties who cannot make any meaningful cost/benefit
assessment in deciding whether to proceed with a matter in
which they may suffer an adverse judgment);
· Encouraging the speedy resolution. of disputes by allowing
offers of settlement to be taken into account by the ADT in the
making of costs orders; and
· Extending the remedies that the ADT may order by specifically
providing that the ADT has the power to order apologies and
retractions (both private and public) and to order the respondent
to implement programs to eliminate unlawful discrimination.
Amendment of the Registration of Births Deaths and Marriages Act
1962
The transgender community has lobbied for many years for Queensland
to introduce legislation allowing people of transgender identity to obtain
new birth certificates in their reassigned sex. All other Australian States and
Territories except Victoria currently have such legislation.
Transgenders experience prejudice and discrimination in many areas of
daily life, including forms of identification. For people who have
undergone sexual reassignment surgery, there is a certain irrevocability and
finality in relation to the gender transfer process. It is appropriate that such
people be recognised in law as being of their reassigned sex.
The Bill will address this by amending the Registration of Births Deaths
and Marriages Act 1962 to allow post-operative transgenders who
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Discrimination Law Amendment Bill 2002
currently have their births registered under Queensland law to obtain new
birth certificates in their reassigned sex. The legislative scheme will be
modelled on provisions in the New South Wales Births, Deaths and
Marriages Registration Act 1995.
The key features of the amendments will be that a person may apply to
the registrar-general to have a change of sex entered into the birth register
if:--
1. the person is 18 or above;
2. the birth was registered in Queensland;
3. the person has undergone sexual reassignment surgery;
4. the person is not married.
The parents or guardian of a child may also apply to the registrar-general
to have a change of a child's sex entered into the birth register.
The application must be accompanied by either statutory declarations of
two doctors verifying that the person has undergone the surgery, or a
recognition certificate. The registrar-general may also require the applicant
to provide further information as required.
After the record of a person's sex is altered, a birth certificate issued by
the registrar-general will show the person's sex in accordance with the
altered record. The certificate will not include a statement that the person
has changed sex.
Registration in the reassigned sex will operate in a similar way to the
process of re-registration after a change of name.
The birth will be re-registered with a new number and a notation
referencing the former registration number. This will indicate that re-
registration has taken place, but will not highlight that it is as the result of a
change of sex.
Consistent with other jurisdictions, the legislation will provide that a
certificate issued from the new registration can be used, where lawful, for
other purposes and that the transgendered person will be taken to be of the
reassigned sex for the purpose of the laws of Queensland.
When a birth is re-registered, no further certificates will be issued from
the original entry without the consent of the registrar-general, and only on
the application of a prescribed list of persons. It is intended that, consistent
with other jurisdictions, the prescribed list will be extremely limited eg the
child of the person.
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Discrimination Law Amendment Bill 2002
Amendments will also be made to the Adoption of Children Act 1964,
which will provide for the issue of certificates, showing the changed sex,
from the adopted children register. The amendments will also provide that
an adopted person who has changed sex may also have a change of name
by deed poll entered into the adopted children register. These change of
name provisions will apply to all adult adopted people who wish to have a
change of name entered into the adopted children register.
Administrative cost to Government of implementation
The amendments contained in the Bill are not expected to have
significant financial implications for government.
Consistency with Fundamental Legislative Principles
Relationships Law Reform
The amendments are consistent with fundamental legislative principles.
The purpose of the proposed Bill is to confer on people in de facto
relationships the same rights as people in a marriage relationship so that
people in a cohabiting relationship are equal under the law. Overall, the
rights of de facto partners are strengthened under the reform package.
However, in providing rights to de facto partners, the rights of married
spouses and children under the intestacy laws and under some
superannuation schemes may be reduced. This raises an issue regarding
consistency with fundamental legislative principles contained in section 4
of the Legislative Standards Act 1992. Section 4(2) requires that legislation
has sufficient regard to, inter alia, the rights and liberties of individuals.
Succession
Under the Succession Act 1981, de facto partners are currently entitled to
claim part of their partner's estate (if the partner died without a will) only if
the relationship was at least five years duration ending on the partner's
death. In addition, a de facto partner may seek provision out of their
deceased partner's estate if adequate provision has not been made for their
support or maintenance whether or not the deceased person left a will. The
surviving married spouse, children or next of kin would be entitled to the
entire estate if the de facto relationship were less than five years duration.
Under the proposed amendments, a de facto partner is entitled to claim
part of the estate if the relationship was of at least two years duration
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Discrimination Law Amendment Bill 2002
ending on the death of the partner. Such a claim will reduce the balance of
the estate available to be paid to a surviving spouse, children or next of kin.
Although the rights of some beneficiaries have effectively been reduced
through this amendment, this is a consequence of providing rights to de
facto partners who have cohabited with the deceased for at least two years.
It is no longer reasonable or justifiable in terms of current community
values towards de facto partners to have a minimum five year cohabitation
period requirement.
Superannuation
The above issues also apply to superannuation. Although the largest
superannuation scheme has recognised de facto partners (in opposite sex
relationships) from approximately 1980, the Judges scheme does not
currently recognise de facto partners. Under this scheme, a pension is
payable to the judge. On the judge's death, currently a pension is paid to
the surviving spouse and eligible children. The benefits available to these
individuals may be reduced if benefits are also payable to the judge's de
facto partner, and eligible children. Again, this is a consequence of
recognising de facto partners. The superannuation asset must be divided
among more beneficiaries.
The issue for policy makers is to ensure that the apportionment is fair.
Under the Judges' pension scheme, the Attorney-General is to decide the
apportionment between these beneficiaries.
It may also be argued there has been insufficient regard to the rights and
liberties of individuals in the increase in the minimum cohabitation periods
for de facto partners to be eligible for benefits under Queensland
government superannuation schemes, WorkCover and Lord Campbell's
actions. This can be justified because it is important to have a consistent
cohabitation period in all legislation that confers a significant financial
benefit on a de facto partner to provide certainty to the de facto partners and
their families. Because the Bill provides eligibility for de facto partners
who have cohabited for a lesser period under these schemes, de facto
partners' rights have not in fact been reduced. For a de facto partner who
has cohabited with the deceased for a period less than two years to be
eligible under these schemes, there must be evidence that the partners
intended that the relationship be long term and committed. It is just that
the de facto partners should be able to prove this intention given that the
benefits under the schemes may be large and are intended to compensate a
surviving spouse for the loss of their life partner.
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Discrimination Law Amendment Bill 2002
A transitional provision for WorkCover and Lord Campbell's actions
will allow people currently in de facto relationships over one year but less
than two years to continue to be eligible as of right under the two schemes
so that their rights have not been reduced under the amendments.
Amendments to the ADA
The ADA amendments raise one issue regarding consistency with
fundamental legislative principles contained in section 4 of the Legislative
Standards Act 1992. Section 4(2) requires that legislation has sufficient
regard to, inter alia, the rights and liberties of individuals.
The Bill extends the new anti-vilification provisions to sexuality and
gender identity. This will arguably limit some rights to freedom of speech.
It is considered that the restriction is justifiable in that it serves a
legitimate purpose in ensuring that people are able to live peaceful and
dignified lives free from vilification. The new provisions are limited in
scope and are a response to problems of violence and anti-social behaviour
directed towards the homosexual and transgender communities.
The proposed restriction is reasonable and proportionate in that:
(a) it applies only to public, not private acts;
(b) it will be subject to exemptions which strike a balance between
freedom of expression and freedom from vilification because of
sexuality or gender identity; and
(c) the offence of serious vilification requires proof to the criminal
standard that the incitement was done knowingly or recklessly.
Article 19 of the International Covenant on Civil and Political Rights
recognises that the right to freedom of expression may be subject to certain
restrictions if these are provided by law and are necessary for respect of the
rights or reputations of others or for the protection of national security or of
public safety.
The new anti-vilification laws fulfil these criteria in that their purpose is
to protect people from vilification that promotes hatred on the basis of a
person's sexuality or gender identity and creates social disharmony in the
wider community.
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Discrimination Law Amendment Bill 2002
CONSULTATION
Community
There has been no consultation with the community on the Bill.
However, individuals and organisations affected by the proposed reforms
have made continuing submissions to government supporting such changes
to the current law.
Government
All Departments have been consulted on the Relationships Law Reform
package. Each Department approved the amendments made to Acts under
their responsibility.
WorkCover, the Motor Accident Insurance Commission and Local
Government Association of Queensland have also been consulted on the
Relationships Law Reform Package. The Office of the Public Trustee was
consulted about the amendments to the Public Trustee Act 1978.
The ADA amendments have been developed in consultation with the
ADCQ and ADT. The Registration of Births, Deaths and Marriages Act
1962 and Adoption of Children Act 1964 amendments have been developed
in consultation with the Department of Families.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 Sets out the short title of the Act.
Clause 2 Provides that the Act commences on a day to be fixed by
Proclamation.
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Discrimination Law Amendment Bill 2002
PART 2--AMENDMENT OF ACTS INTERPRETATION
ACT 1954
Clause 3 Provides that this part amends the Acts Interpretation Act 1954.
Clause 4 Inserts a new section 32DA definition of "de facto partner" into
the Act. "De facto partner" means a person with whom another person is
living as a couple on a genuine domestic basis. The person and the other
person must not be married or related by family. The gender of the two
people is not relevant. Subsection 2 sets out a non-exhaustive list of factors
to be considered when deciding whether 2 people are living together as a
couple on a genuine domestic basis. These include things such as the
length of the relationship, the degree of financial dependence or
interdependence and the reputation and public aspects of the relationship.
The section also makes it clear that two persons are not to be regarded as
de facto partners of each other merely because they share a residence.
Subsection 6 provides that the definition of "de facto partner" as defined in
section 32DA is to be read into all Acts whether or not the Act commenced
prior to the commencement of this Bill or after the commencement of this
Bill unless a specific exemption to the contrary is included in the Act.
Clause 5 Inserts definitions of "de facto partner", "de facto relationship"
and "spouse" into section 36 of the Act. "De facto partner" is defined by
reference to new section 32DA. "De facto relationship" is defined as the
relationship existing between two persons as a couple because they are the
de facto partners of each other. "Spouse" is defined to include a de facto
partner.
PART 3--AMENDMENT OF ADOPTION OF CHILDREN
ACT 1964
Clause 6 Provides that this Part amends the Adoption of Children Act
1964.
Clause 7 Amends section 6 by inserting a definition of "adoption entry."
Clause 8 Amends section 39C of the Adoption of Children Act 1964, so
that if the adopted person's adoption has been reregistered under the
Registration of Births Deaths and Marriages Act 1962, a birth parent or
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Discrimination Law Amendment Bill 2002
relative under section 39C(b) will also be entitled to obtain a certified copy
of the reregistered adoption entry, if one or more changes of the person's
name have been entered into the adopted children register after the
reregistration.
This clause also amends section 39C by providing that subsection
(1)(b)(i) applies even if the adoption entry is closed under the Registration
of Births, Deaths and Marriages Act 1962 section 29B(2)(b)(i) or (4)(b) or
29C(6)(a) and access to it is restricted under section 55A of this Act.
Clause 9 This clause inserts a new section 47A which provides for the
use of a certified copy or extract. If a person's adoption has been
reregistered as the result of a change of sex, a person, whether or not the
person is the reregistered person, who is aware of the reregistration, must
not produce to another person, for a purpose of a law of another State or the
Commonwealth, a certified copy or extract obtained under the Adoption of
Children Act 1964 showing the changed sex, unless the laws of the other
State or the Commonwealth expressly allow it to be produced, or the
person, when producing the certified copy or extract informs the person to
whom it is produced about registration of the change of sex.
In addition, the reregistered person must not, with intent to deceive,
produce to another person a certified copy or extract obtained under the
Adoption of Children Act 1964 showing the sex as it was recorded in the
adopted children register prior to reregistration.
Clause 10 Inserts a new section 55A, which provides that when the
reregistration of an adopted person has occurred under section 29B(4) of
the Registration of Births, Deaths and Marriages Act 1962, a certified copy
or extract obtained under this Act from the registrar-general must show the
person's sex in accordance with the reregistration, and must not include a
statement or other clear indication to the effect that a change of the person's
sex has been entered in to the adopted children register.
A person may ask the registrar-general for a certified copy from the
adoption entry that was closed on the reregistration if the applicant is:- the
relevant person; a child of the relevant person; the parent of the relevant
person, if the relevant person is a child; or a person prescribed under a
regulation.
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Discrimination Law Amendment Bill 2002
PART 4--AMENDMENT OF ANTI-DISCRIMINATION
ACT 1991
Clause 11 Provides that this Part amends the Anti-Discrimination Act
1991.
Clause 12 Amends section 4 by inserting a range of new definitions.
These include "family responsibilities", "lawful sexual activity", "religious
activity", "religious belief", "sexuality", and "gender identity" which relate
to attributes listed in section 7. The clause also defines "de facto partner"
and "immediate family" by reference to new sections 4B and 4C
respectively. These definitions are incorporated into the general definition
of "family responsibilities".
Clause 13 Inserts the new sections 4B and 4C which define "de facto
partner" and "immediate family" for the purposes of the new attribute of
"family responsibilities".
Clause 14 Amends section 7 by repealing the current attribute "religion"
and replacing it with the new attribute "religious belief or religious
activity". It also inserts new attributes of "gender identity", "sexuality" and
"family responsibilities". The clause also repeals section 7 (2) to remove
the current restriction on the application of the attribute "breast feeding".
The effect is that discrimination on the basis of "breast feeding" will now
be prohibited in all areas covered by the Act.
Clause 15 Amends section 25 by inserting a further example of what
would constitute a genuine occupational requirement for the purposes of
the exemption. It provides that "employing persons of a particular religion
to teach in a school established for students of the particular religion"
would be an example of a genuine occupational requirement.
Clause 16 Amends section 28 to provide that the exemption applies to
both the new attributes of "gender identity" and "lawful sexual activity"
(which is now specifically defined to mean a person's status as a lawful sex
worker). As a result the exemption will no longer apply to a range of
activity currently caught by "lawful sexual activity", for example
homosexual activity.
The clause also inserts a new subsection 28(2) which makes it clear that
there is nothing in the Act to prohibit discrimination against people who
have been convicted in Queensland or elsewhere of an offence of a sexual
nature involving a child, or disqualified from working with children under
any State or Commonwealth legislation. The purpose of this new
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Discrimination Law Amendment Bill 2002
subsection is to reinforce the protection of children currently provided by
other specific legislation.
Clause 17 Repeals section 29. This exemption presently allows
educational or health related institutions under the direction or control of
religious bodies to discriminate on any ground except age, race, or
impairment in the work area if it is in accordance with the doctrine of the
religion concerned and necessary to avoid offending the religious
sensitivities of the people of the religion. This exemption is contrary to the
spirit of the Act in that it has the effect of sanctioning and perpetuating
discrimination against groups which the Act was designed to protect.
Clause 18 Repeals section 42 which currently allows non-State school
authorities to discriminate in the education area on any ground other than
race or impairment. The exemption is considered unjustifiable in that it
would allow non-State schools to refuse to admit or teach a student because
he or she was, for example, homosexual, pregnant or in a de facto
relationship. The Act already provides a specific exemption for educational
authorities under section 41 which allows educational authorities to operate
institutions wholly or mainly for children of a particular sex or religion or
who have a general or specific impairment. Any further exemption is
considered unjustifiable.
Clause 19 Inserts a new section 45A which expressly states that section
46 does not apply to the provision of assisted reproductive technology
services if the discrimination is on the basis of marital status or sexuality
(for example, if a person is in a same sex relationship). The purpose of this
amendment is to maintain the existing situation by ensuring that State
legislation does not prevent medical practitioners making decisions about
access to ART in accordance with clinical and ethical standards. Section
45A will remove any risk that a medical practitioner who declines to
provide fertility treatment to a person on this basis may be subject to a
complaint under the ADA.
Clause 20 Amends section 109 by limiting the application of the general
exemption in section 109(d) to areas other than work and education. This
is to ensure that the purpose of repealing sections 29 and 42 is not
circumvented by recourse to section 109(d).
Clause 21 Amends section 111 to provide an exemption in relation to
competitive sporting activity for discrimination on the basis of gender
identity if the restriction is reasonable having regard to the strength,
stamina, or physique requirements of the activity.
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Discrimination Law Amendment Bill 2002
Clause 22 Amends section 124A by introducing new prohibitions on
vilification on the basis of sexuality or gender identity. As with racial and
religious vilification, the prohibition is subject to a range of exemptions.
Clause 23 Amends section 130(1)(a)(ii) by removing the words "for the
purposes of a proceeding under the Act". These words have limited the
scope of the protection that the Act provides against victimisation. This
amendment will make it clear that the protection is not limited to situations
where a complainant makes an allegation about another person's conduct
for the purposes of making an actual complaint to ADCQ. Victimisation
will be found to occur when a respondent does something to the detriment
of the complainant because the complainant (or the complainant's
associate) alleges or intends to allege that another person committed an act
that would amount to a contravention of the Act, whether or not the
complainant intends to actually complain to the ADCQ.
Clause 24 Amends section 131A by creating new offences of serious
sexuality or gender identity vilification. The amendment will mean that
person who by a public act knowingly or recklessly incites hatred towards,
serious contempt for, or severe ridicule of, a person or group of persons on
the ground of sexuality, or gender identity of the person or members of the
group by threats of physical harm or inciting others to threaten physical
harm will commit an offence. The maximum penalty is 70 penalty units or
six months imprisonment (for an individual) or 350 penalty units (for a
corporation).
Clause 25 Amends section 134 by enabling an organisation to make a
complaint of vilification. This will overcome current restrictions in the Act
which allow complaints to be made only by a person subjected to the
alleged contravention (or the person's agent) and representative complaints
(ie a complaint by an individual who has a common complaint with and
seeks to represent all other individuals in a particular group who have been
similarly affected by the alleged contravention). In relation to complaints
of vilification these restrictions are unsatisfactory as many vilifying acts are
directed at a group rather than an individual. In such cases individuals
within an affected group may be reluctant to make a complaint for fear of
being singled out for victimisation or retribution. The amendment will
enable appropriate organisations (relevant entities) to make a complaint by
conferring on the Commissioner a discretion to accept a complaint if the
Commissioner is satisfied it is made in good faith, the relevant alleged
contravention is about conduct that has affected or is likely to affect
relevant persons for the relevant entity (as defined) and that it is in the
interests of justice that the complaint be accepted. The section defines a
relevant entity as a body corporate or an unincorporated body, a primary
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Discrimination Law Amendment Bill 2002
purpose of which is the promotion of the interests or welfare of a particular
race, religion, sexuality or gender identity. It is not intended that only an
entity which expressly includes in its objects of association the promotion
of the welfare or interests of a relevant group will have a right to complain.
In determining whether an entity is eligible, it is intended that the
Commissioner will be able to take a wide variety of factors into account
such as objects of association, past conduct, community profile, past
representative activity etc
Clause 26 Amends section 136 by extending the criteria for an eligible
complaint. The clause inserts a new subsection (c) which requires a
complaint to state the complainant's address for service and renumbers the
existing subsection (c) as (d).
Clause 27 Amends section 143 by requiring the Commissioner to notify
a respondent of a range of matters if a complaint is accepted. The purpose
is to expedite existing ADCQ investigation and conciliation processes by
giving the respondent the option of providing a written response. The
amendments to the section provide that if there is no written response from
the respondent within 28 days, the Commissioner will be able to order a
compulsory conference under section 159.
Clause 28 Amends section 153 to overcome current problems in the
construction of the section. The section has been construed to mean that if
a worker is dismissed in circumstances entitling the worker to both lodge a
complaint under the Act and file a complaint with the Industrial Relations
Commission (IRC), the worker cannot apply to the IRC for relief, if the
worker has not applied for such relief before lodging a complaint under the
ADA, whether or not the Commissioner has accepted the complaint. This
can have harsh consequences for an applicant who has made a complaint
under section 136 only to have it rejected under section 141. The
amendments make it clear that the worker will only lose his/her right to
apply for industrial relief if:
· the worker is dismissed in circumstances entitling the worker to
both lodge a complaint under the Act and apply for industrial
relief;
· the worker does not apply for industrial relief before lodging the
complaint and being notified under section 141that the complaint
has been accepted.
Clause 29 Inserts a new section 154A which provides that the
Commissioner may investigate complaints accepted under section 141.
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Discrimination Law Amendment Bill 2002
This is to offset the repeal of section 155(1) which requires the
Commissioner to investigate such complaints.
Clause 30 Amends section 155(1) to remove the obligation on the
Commissioner to conduct an investigation into complaints accepted under
section 141. The obligation is inappropriate and unnecessary. This is offset
by the new section 154A which gives the Commissioner a discretion as to
whether he or she investigates such complaints.
The clause also repeals section 155(4). The subsection has given rise to
problems in interpretation. The repeal of the subsection will ensure that
there can be no argument about the degree of satisfaction the
Commissioner must have as to whether a contravention has occurred in
order to try to resolve the matter by conciliation. The existing sections
155(5) and (6) are renumbered to account for the repeal of section 155(4).
Clause 31 Inserts a new section 164A which gives a complainant a new
right to elect to have a complaint referred to the Anti-Discrimination
Tribunal following a conciliation conference. At present a complainant
only has a right to require referral if the Commissioner has decided that the
complaint cannot be resolved by conciliation and notified the complainant
accordingly. The amendment will not affect this right but will simply
provide for a further right to ensure that a complainant does not have to
wait until the Commissioner has made a decision that a matter is
unconciliable before requiring referral. The purpose is to expedite the
dispute resolution process and to ensure that parties are not required to
attend exhaustive conciliation conferences. The section makes it clear that
this will not affect the power of the Commissioner to lapse a complaint if
the Commissioner is of the reasonable opinion that the complaint is
frivolous or vexatious or misconceived or lacking in substance.
Clause 32 Amends section 188 to make it clear that either before or
during a hearing the Tribunal has the power to attempt to conciliate a
complaint, refer a complaint to the registrar for conciliation or refer a
complaint to the Commissioner for conciliation if the Tribunal considers
the complaint could be resolved this way. At present the section does not
make it clear that the Tribunal has the power to refer a complaint to the
registrar.
Clause 33 Amends section 201 to empower the Tribunal to order any
person to attend a hearing, give evidence on oath or affirmation or give the
Tribunal documents whether or not a party to the hearing has required the
person as a witness.
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Discrimination Law Amendment Bill 2002
Clause 34 Amends section 208 by clarifying the powers of the Tribunal
in the evaluation of evidence. The clause inserts new subsection (a) which
provides that the Tribunal must have regard to the reasons for the
enactment of this Act as stated in its preamble. It also inserts a new
subsection (d) which provides that the Tribunal must conduct itself in a
way which will enable costs or delay to be reduced and will help to achieve
a prompt hearing of the matters at issue between the parties. The clause
renumbers existing subsections to take account of the changes.
Clause 35 Amends section 209 by providing a number of additional
remedies that can be ordered by the Tribunal if a complaint is proven. The
section provides that the Tribunal may order the respondent to make a
private apology or retraction, to make a public apology or retraction
(including the way and form of publication) or to implement programs to
eliminate unlawful discrimination. It also provides that the Tribunal may
order any party to pay interest on an amount of compensation.
Clause 36 Amends section 213 by providing that the Tribunal must
assess costs using the scale of costs for the District Court under the
Uniform Civil Procedures Rules 1999, unless the Tribunal is satisfied that
because of the complexity of the matter or for some other reason costs
should be assessed using a higher scale. The purpose is to ensure greater
fairness and certainty for parties by allowing them to make a more
meaningful costs/risk assessment of litigating an issue before the Tribunal.
The section also sets out criteria the Tribunal may take into account in
deciding whether to order a party to pay costs. These are the reasons for
the enactment of the Act as stated in the preamble and a range of factors
which may affect the fairness of the order. The new subsection (4)
specifically provides that this does not limit the overriding discretion of the
Tribunal to make such orders as it considers reasonable.
Clause 37 Inserts a new chapter 7, part 2, division 3A which establishes
a new scheme for the making of offers to settle which may be taken into
account by the Tribunal in ordering costs. The purpose is to encourage a
speedy resolution of disputes. The new section 213A provides that if a
party to a proceeding (the offeror) makes an offer to settle which is not
accepted within the relevant time, the Tribunal may make an order
requiring the other party (the offeree) to pay all costs incurred by the
offeror after the offer was made if the Tribunal considers that the orders it
makes are not more favourable to the offeree than the offer. The new
section 213B provides that an offer to settle cannot be revealed to the
Tribunal until it has made its orders, that a party may make more than one
offer to settle and that if an offer to settle provides for the payment of
money the offer must state when the money is to be paid. Section 213C
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Discrimination Law Amendment Bill 2002
provides that an offer to settle must be open for acceptance until
immediately before the Tribunal makes any order under section 209 or 210
or until the expiry of a stated period, whichever happens first. An offer to
settle cannot be withdrawn while it is open for acceptance without the
permission of the Tribunal. Section 213D sets out the orders that the
Tribunal may make if a party who makes an offer does not comply with its
terms.
Clause 38 Inserts a new section 215A which empowers the Tribunal to
dismiss complaints that are frivolous, vexatious, misconceived or lacking
in substance or that for any other reason should not be further considered.
Clause 39 Replaces the existing section 216 with a new section which
clarifies the procedures by which a matter is brought to the Supreme Court
for a decision. The section provides that the Tribunal may, at any stage of
the proceeding and on the terms it considers appropriate state a written case
for the opinion of the Supreme Court on a question of law relevant to the
proceedings. The court may hear and decide the matter raised by the case
stated and remit the case with its opinion to the Tribunal. The Tribunal
must give effect to the court's opinion.
Clause 40 Amends section 236 by clarifying the powers of the
Commissioner. It specifically provides in relation to requests for a person
to give the Commissioner a document or other material, the Commissioner
may require the document or other material be provided within a specified
time.
Clause 41 Amends chapter 10 by inserting a new "Part 1- Service". The
new Part sets out a number of matters relating to the provision of an
address for service including the use that may be made of an address for
service and provision for a deemed address for service if no address for
service is known.
Clause 42 Inserts new Chapter and Part headings - "Chapter 11 -
Transitional Provisions" " and "Chapter 11, Part 1- Transitional Provision
for Act No 29 of 1994"
Clause 43 Inserts "Chapter 11, Part 2- Transitional Provisions for the
Discrimination Law Amendment Act 2002" which contains transitional
provisions. It also inserts the heading for the Schedule which contains the
dictionary of defined terms currently contained in the existing section 4.
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Discrimination Law Amendment Bill 2002
PART 5--AMENDMENT OF THE GUARDIANSHIP AND
ADMINISTRATION ACT 2000
Clause 44 Provides that that this part amends the Guardianship and
Administration Act 2000.
Clause 45 Inserts a new section 262B into the Guardianship and
Administration Act 2000. Section 262B is a transitional provision. Section
231 prevents a person from holding office as a community visitor if the
person or the person's spouse has a direct pecuniary interest in a relevant
contract or visitable site. Section 262B will enable a community visitor
appointed prior to the commencement of the amendments, whose de facto
spouse has a direct pecuniary interest in a relevant contract or visitable site,
to continue to hold office as a community visitor until their term of office
expires. The community visitor is only protected for the term of office
current at the time of commencement of the section so any renewal or
extension of the term will not be covered.
PART 6--AMENDMENT OF JUDGES (PENSION AND
LONG LEAVE) ACT 1957
Clause 46 Provides that this Part amends the Judges (Pension and Long
Leave) Act 1957.
Clause 47 Inserts a new definition of "live together as a couple" into
section 2 which means "live together as a couple" as provided for in section
32DA of the Acts Interpretation Act 1954.
Clause 48 Amends section 7 of the Judges (Pension and Long Leave) Act
1957, which sets out the pension entitlements of a spouse of a judge who
dies before retirement.
Subsection 2 provides that a spouse who is a de facto partner of the
judge is only entitled to a pension if the judge and spouse had lived
together as a couple for a continuous period of 2 years prior to the judge's
death or for a shorter period if the circumstances of the relationship show a
clear intention that the relationship be a long term, committed one.
Subsection 2(b) provides what happens if the judge is survived by more
than one spouse. In this case the pension payable is the pension that would
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Discrimination Law Amendment Bill 2002
have been paid had only one spouse survived the judge. This pension is to
be apportioned between the spouses by the Minister in the shares that the
Minister considers appropriate.
Clause 49 Amends section 8 of the Judges (Pensions and Long Leave)
Act 1957 which sets out the pension entitlements of a spouse of a judge
who dies after retiring.
Subsection (2)(a) provides that a husband or wife of a deceased retired
judge is entitled to a pension only if they were married to the judge prior to
retirement. The marriage relationship would also need to exist at the time
of death of the judge.
Subsection (2)(b) provides that a de facto partner of a judge is only
entitled to a pension if they were the judge's spouse when the judge retired
and when the judge died. In addition, a de facto partner must have lived
with the judge as a couple for a period of 2 years prior to the judge's death.
A shorter cohabitation period ending on the death of the judge is acceptable
if the circumstances of the de facto relationship show a clear intention that
the relationship be a long term, committed one.
Subsection (2)(c) sets out what happens if the judge is survived by more
than one spouse. In this case the pension payable is the pension that would
have been paid had only one spouse survived the judge. This pension is to
be apportioned between the spouses by the Minister in the shares that the
Minister considers appropriate.
Clause 50 Amends section 8A of the Judges (Pensions and Long Leave)
Act 1957 which sets out the pension entitlements of children. The new
section 8A inserts a new definition of "eligible child" into the Act. Under
the definition an eligible child is entitled to a pension as set out in section
8A of the Act. A child of a judge who is under 16 or who is under 25 if
they are receiving full time education at a school, college or university is an
eligible child.
For a judge who dies before retirement, a child of a judge's husband or
wife is also an eligible child. A child of a de facto partner will also be an
eligible child if the child was a child of the de facto partner at the date of
the judge's death and the de facto partner is a spouse who is eligible for a
pension under the amended section 7.
For a judge who dies after retirement, a child of a judge's husband or
wife is an eligible child if the judge was married to the husband or wife at
the date of retirement and at the date of death. The child must also have
been a child of the judge's husband or wife at the date the judge retired. A
child of a de facto partner of a judge who dies after retirement will also be
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Discrimination Law Amendment Bill 2002
an eligible child in certain circumstances. The child must have been a child
of the de facto partner at the date the judge retired. The de facto partner
must also be a person who is eligible for a pension under the amended
section 8 of the Act.
PART 7--AMENDMENT OF LAND TAX ACT 1915
Clause 51 Provides that this part amends the Land Tax Act 1915.
Clause 52 Amends section 3 of the Land Tax Act 1915 to insert a
reference to the new definition of "spouse". "Spouse" is defined by
reference to a new section 3BA.
Clause 53 Inserts a new section 3BA into the Land Tax Act 1915 to
provide a definition of "spouse". Under this definition, a person will be
another person's spouse if they are married or if the person is a de facto
partner of the other person. New subsection (2) sets out when a person will
be a de facto partner. This provision incorporates the meaning of "de facto
partner" under section 32DA on the Acts Interpretation Act 1954 with the
addition of a requirement for a minimum cohabitation period of 2 years.
The new subsection (3) ensures that the definition of "spouse" applies
for the purposes of the Act, despite section 32DA(6) of the Acts
Interpretation Act 1954.
Clause 54 Amends section 11(6F) of the Land Tax Act 1915 to replace
the references to "husband" and "wife" with "spouse".
Clause 55 Amends section 11B(3B) of the Land Tax Act 1915 to replace
the references to "husband" and "wife" with "spouse".
Clause 56 Amends section 11BA(5) of the Land Tax Act 1915 to replace
the references to "husband" and "wife" with "spouse".
Clause 57 Amends sections 11C(2A) and 11C(2B) of the Land Tax Act
1915 to replace the references to "husband" and "wife" with "spouse".
As the new definition of "spouse" in new section 3BA includes de facto
partners, the sections amended by clauses 54 to 57 will now apply also
where a de facto relationship exists between beneficiaries of the trusts
referred to in the sections.
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Discrimination Law Amendment Bill 2002
PART 8--AMENDMENT OF PROPERTY LAW ACT 1974
Clause 58 Provides that this part amends the Property Law Act 1974.
Clause 59 Inserts a new definition of de facto partner in section 260 in
the Property Law Act 1974. It provides that a person is a de facto partner of
another person if they are or have been a de facto partner of the other
person under section 32DA of the Acts Interpretation Act 1954. In
addition, a person will be a de facto partner of another person if they would
have been a de facto partner of the person had section 32DA of the Acts
Interpretation Act 1954 been in operation when they were in their de facto
relationship with the other person.
Clause 60 Amends section 323 of the Act which provides that a
declaration made under Division 5 of Part 19 of the Property Law Act 1974
has effect as a judgement of the court. Declarations made under this
Division are intended to avoid duplication of proceedings by allowing a
person to make an application to a court for a declaration about the
existence or non-existence of the de facto relationship.
The amendment provides that the persons named in a declaration may
also be taken to have been or not to have been de facto partners for Part 19
and the new definition of de facto partners in section 32DA of the Acts
Interpretation Act 1954.
The amendment also provides that a declaration only has effect for
another Act to establish whether the persons named in it were on the stated
date or during the relevant periods, de facto partners of each other as
defined in the Acts Interpretation Act 1954.
PART 9--AMENDMENT OF THE PUBLIC TRUSTEE
ACT 1978
Clause 61 Provides that this part amends the Public Trustee Act 1978.
Clause 62 Amends section 54 of the Public Trustee Act 1978. Section 54
enables the Public Trustee to pay the residue of the estate of an intestate
person to a spouse who survives the deceased person if the residue does not
exceed $20,000. The amendments incorporate the new definition of "de
facto partner" in section 32DA of the Acts Interpretation Act 1954 with the
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Discrimination Law Amendment Bill 2002
addition of a requirement for a 2 year minimum cohabitation period ending
on the death of the intestate.
This makes the provision consistent with those provisions of the
Succession Act 1981, which deal with the entitlement of a de facto partner
to estate of their intestate partner.
Clause 63 Amends section 88 to enable the Public Trustee to pay out the
estate of a deceased incapacitated person to a spouse of the incapacitated
person without requiring a grant of administration. The amendment to
section 88 provides that a de facto partner will only be a spouse of an
incapacitated person if the incapacitated person and the de facto partner
lived together as a couple on a genuine domestic basis within the meaning
of section 32DA of the Acts Interpretation Act 1954 for a period of 2 years
ending on the death of the incapacitated person. This makes the provision
consistent with those provisions of the Succession Act 1981, which deal
with the entitlement of a de facto partner to the estate of their intestate
partner.
Clause 64 Amends section 94 to clarify that a person who was the de
facto partner of a prisoner immediately before the imprisonment occurred
is not prevented from being a spouse of the prisoner during their
imprisonment even though the imprisonment prevents them from
cohabiting.
Clause 65 Amends section 107 to make it clear that a de facto partner of
the owner of unclaimed property who was the de facto partner of the owner
immediately before the last known contact with the owner of the property
may be a spouse.
Clause 66 Inserts a new part 10, Division 3, which contains transitional
provisions for the amendments effected to the Public Trustee Act 1978.
Those amendments do not apply in relation to a will executed before the
commencement of the amendments effected by this Bill or in relation to the
estate of a person who died before the commencement of these
amendments.
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Discrimination Law Amendment Bill 2002
PART 10--AMENDMENT OF REGISTRATION OF
BIRTHS, DEATHS AND MARRIAGES ACT 1962
Clause 67 Provides that this Part amends the Registration of Births,
Deaths and Marriages Act 1962.
Clause 68 Provides for definitions of "adopted children register",
"recognition certificate" and "sexual reassignment surgery."
Clause 69 Amends section 22 of the Act. It provides that after the
reregistration of the birth of a person under section 29B(4), a certificate or
extract obtained from the registrar-general under subsection (1) must show
the relevant person's sex in accordance with the reregistration, and must
not include a statement or other clear indication to the effect that a change
of the relevant person's sex has been entered into the register of births.
A person may ask the registrar-general for a certificate from the entry
that was closed on the reregistration if the applicant is the relevant person;
a child of the relevant person; a parent of the relevant person (if the relevant
person is a child); or a person prescribed by regulation.
Clause 70 Amends section 28(3) so that even if a change of a child's
name may have been entered into a register under subsection (1), an
additional entry may be made in conjunction with the entering of a change
of sex under section 28D.
The clause also amends section 28(4), so that an adult adopted person
may apply to the registrar-general to enter a change of name by deed poll
into the relevant entry in the adopted children register.
Clause 71 Corrects a drafting omission to section 28A(1)(a).
Clause 72 Inserts new sections which provide the procedure for an
application to change sex in either the register of births or the adopted
children register. A person whose birth has been registered under the
Registration of Births Deaths and Marriages Act 1962, or whose adoption
has been registered under the Adoption of Children Act 1964, may apply to
the registrar-general to enter a change of the person's sex in the register of
births or the adopted children register.
A person may make an application to have the change of sex recorded if
the person is 18 years or more, has undergone sexual reassignment surgery
and is not married.
Also, the parents or guardian of a child whose birth or adoption have
been registered under this Act or the Adoption of Children Act 1964, may
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Discrimination Law Amendment Bill 2002
apply to the registrar-general to have the change of the child's sex entered
into the appropriate register, and for reregistration of the birth or adoption.
An application may be made by only one parent if the applicant is the
sole parent named in the registration of the child's birth or adoption, if the
other parent is dead, the other parent's whereabouts are unknown, the other
parent cannot sign the application, or there is some other reason that
justifies the making of the application by only one parent.
New section 28C provides that the application must be accompanied by
either statutory declarations by 2 doctors verifying that the person has
undergone sexual reassignment surgery or a recognition certificate, and any
other documents or information.
New section 28D provides that the registrar-general must decide an
application by entering the change of sex in the register of births or the
adopted children register or refusing to enter the change. The registrar-
general must refuse to enter a change of sex if the person who is the subject
of the application is married.
Clause 73 Amends section 29B by providing a procedure for entering a
change of sex in either the register of births or the adopted children register.
After the registrar-general enters a change of sex in the appropriate register,
the registrar-general must note the change by making a marginal note in the
relevant entry. The entry must then be closed and reregistered.
Clause 74 Amends section 29C to provide a process for an application
for reregistration of a person's adoption.
Clause 75 Extends the application of section 29D to adoptions.
Clause 76 This clause makes a consequential amendment to section
29E(2) because of the insertion of the definition of "adopted children
register."
Clause 77 This clause inserts a new section 43A which provides for the
use of a certificate or extract if a birth has been reregistered under section
29B(4). If a person's birth has been reregistered as the result of a change of
sex, a person, whether or not the person is the reregistered person, must not
produce to another person, for a purpose of a law of another State or the
Commonwealth, a birth certificate or extract showing the changed sex,
unless the laws of the other State or the Commonwealth expressly allow it
to be produced or the person, when producing the certificate informs the
person to whom it is produced about registration of the change of sex.
In addition, the reregistered person must not, with intent to deceive,
produce to another person a certificate or extract showing the sex as it was
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Discrimination Law Amendment Bill 2002
before the change of sex was recorded in the register of births before the
reregistration.
The clause also inserts a new section 43B which provides for the effect
of reregistration of change of sex. When a person's birth or adoption has
been reregistered under section 29B(4), the person is taken to be, for the
purposes of the law of Queensland to be the sex as recorded in the register
of births or the adopted children register after the reregistration.
A person who, under the law of another State, has had a change of sex
recorded in a corresponding register of births or adoptions, is taken, for the
purposes of the law of Queensland, to be the sex as recorded in the
corresponding register after the entry is changed.
New section 43C provides that a person who is the subject of a
recognition certificate is taken to be, for the purposes of the law of
Queensland, a person of the sex as stated in the certificate.
Despite this, the requirements of section 28B to 28D must be complied
with if a recognised person wishes to have the sex as stated in the
recognition certificate registered in the register of births or the adopted
children register.
PART 11--AMENDMENT OF THE SUCCESSION ACT
1981
Clause 78 Provides that this part amends the Succession Act 1981.
Clause 79 Inserts a new section 5AA, which contains a new definition of
"spouse" and "spouse of a deceased person". Under this definition a
person will generally be another person's spouse if they are married or if
the person is a de facto partner of the other person as defined in section
32DA of the Acts Interpretation Act 1954.
The new subsection 5AA(2) also sets out when a person will be the
spouse of a deceased person. Under this provision a person will be the
spouse of a deceased person if they were married to the deceased person or
if they were the deceased person's de facto partner at the date of death.
This incorporates the definition of de facto partner in section 32DA of the
Acts Interpretation Act 1954 with an additional requirement that the
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Discrimination Law Amendment Bill 2002
deceased and de facto partner must have cohabited for a minimum period
of 2 years ending on the death of the deceased.
The new subsection 2 also includes a definition of spouse that applies for
part 4 of the Act which deals with Family Provision. It includes a person
who was dependant on their deceased former husband or wife as an
additional category of person who is a spouse of a deceased person for the
purposes of Part 4.
Clause 80 Inserts a new Part 7 Division 2, section 74 into the Succession
Act 1981. This section provides that the amendments effected by this Bill
do not apply to a will executed before the Bill commences or for the estate
of a person who dies before the Bill commences.
Clause 81 Inserts a new Part 1 into Schedule 2. This sets out the way in
which the estate of an intestate is to be divided if they are survived by a
spouse. If the intestate is not survived by issue but is survived by a spouse
the spouse takes the entire residuary estate. If the intestate is survived by
more than one spouse, the residuary estate is to be divided in accordance
with section 36 of the Succession Act 1981.
If the intestate is survived by issue, and there is only one surviving
spouse the spouse is entitled to the household chattels, $150,000 and 1/2 of
the residue if there is one child of the intestate (1/3 if there is more than one
child) and the issue take the balance. If there is more than one spouse who
survives the intestate the residuary estate they are entitled to the household
chattels, $150,000 and 1/2 of the residue if there is one child of the intestate
(1/3 if there is more than one child). This is to be divided between the
spouses in accordance with section 36 of the Succession Act 1981.
PART 12--AMENDMENT OF THE SUPREME COURT
ACT 1995
Clause 82 Provides that this part amends the Supreme Court Act 1995.
Clause 83 Amends section 18 to define spouse of a deceased person for
the purposes of section 18(1). New Subsection 2 sets out when a person
will be a de facto partner of a deceased person. This provision incorporates
the meaning of "de facto partner" under section 32DA of the Acts
Interpretation Act 1954. It includes an additional requirement of a
minimum cohabitation period of 2 years or a shorter period ending on the
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Discrimination Law Amendment Bill 2002
death if the circumstances of the de facto relationship between the
deceased person and the de facto partner showed a clear intention that the
relationship be a long term, committed one. However, if there is a
dependent who is a child of the relationship, it is sufficient that the de facto
relationship existed immediately before the death occurred.
Clause 84 Amends section 81 by omitting husband and wife from the
section and inserting in its place "spouse". This makes it clear that the
section applies to people who are married and de facto partners.
Clause 85 Inserts a new section 303 into the Supreme Court Act 1995.
This is a transitional provision that applies where a person dies in the 1
year period following the commencement of the section. It provides that a
spouse of a deceased person for section 18(1) includes a person who was
living with the deceased as the deceased's husband or wife for at least 1
year immediately prior to commencement of section 303 and who
continued to live with the deceased as their husband or wife until the death.
PART 13--AMENDMENT OF WORKCOVER
QUEENSLAND ACT 1996
Clause 86 Provides that this part amends the WorkCover Queensland Act
1996.
Clause 87 Amends section 31 of the WorkCover Queensland Act 1996 to
clarify when a de facto partner may be a "spouse of a deceased worker".
Subsection 1 incorporates the meaning of "de facto partner" under section
32DA of the Acts Interpretation Act 2002. It includes and additional
requirement of a minimum period of cohabitation of at least 2 years
immediately before the worker's death or a shorter period if the
circumstances of the de facto relationship between the deceased worker
and the de facto partner showed an intention that the relationship be a long
term, committed one. However, if there is a child of the relationship, it is
sufficient if the de facto relationship existed immediately before the death
occurred. It does not matter when the child was born as long as the
relationship was in existence immediately before the death. A child born of
the spouses posthumously is also included. Subsection 3 also inserts a new
definition of "child of the relationship" and "dependant".
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Discrimination Law Amendment Bill 2002
Clause 88 Inserts a new Chapter 15, section 591 into the WorkCover
Queensland Act 1996. This is a transitional provision that applies where a
worker dies in the 1 year period following the commencement of the
section. It provides that a spouse of the worker includes a person who was
living with the worker as the worker's husband or wife for at least 1 year
immediately prior to commencement of section 303 and who continued to
live with the worker until the worker's death.
Clause 89 Inserts a new definition of spouse into the dictionary which
refers to the new definition of "spouse of a deceased worker" by reference
to section 31 of the WorkCover Act 1996.
PART 14--AMENDMENT OF OTHER ACTS
Clause 90 Provides that the Schedule amends the Acts it mentions.
The amendments to the Aboriginal Land Act 1991 clarify that the Acts
Interpretation Act 1954 definition of "spouse" does not apply to sections
39(3) and 76(3)(a). In those sections "spouse or former spouse" has been
replaced with "husband or wife, or former husband or wife" of the person
referred to in the section.
The amendments to the Adoption of Children Act 1964 clarify that the
Acts Interpretation Act 1954 definitions of "spouse" and "de facto partner"
do not apply to a reference to spouse in that Act.
The amendments to the Agricultural Chemicals Distribution Control Act
1966 clarify that a "spouse" is included within the meaning of "relative" in
section 6. The amendments update the terminology used in the Act so that
it is consistent with the Acts Interpretation Act 1954 definitions of "spouse"
and "de facto partner".
The amendments to the Ambulance Service Act 1991 clarify that a
person's spouse may consent to the release of information where the next
of kin of the person could do so. In addition, the provision makes it clear
that communication of information to the next of kin or relative of a person
under section 49(2)(c)(iv) includes communicating that information to the
person's spouse.
The amendments to the Anti-Discrimination Act 1991 omit the
definitions of "de facto partner" and "immediate family" inserted by
Section 4B and 4C. When the Acts Interpretation Act 1954 definition of de
32
Discrimination Law Amendment Bill 2002
facto partner commences the definition of de facto partner in section 4B
will be obsolete. The amendment to sections 7(1)(b), 31(1), 45A, 59 and
91 replaces the references in those sections to "marital status" with
"relationship status".
The amendment to section 31(1)(f) of the Anti-Discrimination Act 1991
updates the terminology in the section to refer to de facto partners.
The amendments delete the definitions of "de facto partner" and "de
facto spouse" from the schedule and insert new definitions of "immediate
family" and "relationship status" into the schedule containing the
definitions for the Act. "Relationship status" replaces the previous term
"marital status". "Marital status" is not reflective of the types of
relationships encompassed by the definition, which includes whether a
person is a de facto partner of another person.
The amendments to the Burials Assistance Act 1965 remove the terms
"husband or wife" from section 4 and replaces them with "spouse". This
means that the Acts Interpretation Act 1954 meaning of "spouse" which is
inclusive of de facto partners applies.
The amendments to the Child Care Act 2002 remove the definitions of
"spouse" and "de facto spouse" from schedule 2 of the Act. These
definitions will be obsolete when the Acts Interpretation Act 1954
definitions of "spouse" and "de facto spouse" commence.
The amendments to the Child Protection Act 1999 remove the references
to "husband and wife" from section 131(3) of the Act and replace them
with "spouse". Spouse will then be inclusive of "de facto partners" under
the new definition of "spouse" in the Acts Interpretation Act 1954.
The amendment to the Corrective Services Act 2000 inserts a new
definition of "relative" in schedule 3 (Dictionary). Relative was previously
undefined for sections 59 and the definition of "personal visitor" in
schedule 3. The new definition of relative includes de facto partners and
recognises that a de facto partnership between two people may exist in
spite of the circumstances of imprisonment preventing them from
cohabiting. Accordingly, "relative", of a prisoner, includes a person who
was the prisoner's de facto partner immediately before the person was
imprisoned.
The amendments to the Criminal Code omit references to "de facto
partner" from section 119A. Section 119A refers to "spouse" and the
references to "de facto partner" are unnecessary, as the definition of
"spouse" in the Acts Interpretation Act 1954 which includes de facto
partners, will apply to the section. Section 219 is also amended to clarify
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Discrimination Law Amendment Bill 2002
that the Acts Interpretation Act 1954 definition of "spouse" does not apply
to section 219 of the Criminal Code. In that section "spouse" means
"husband or wife". The amendments also replace references to "husband
or wife" in section 442 with "spouse" making it clear that the provisions
apply to de facto partners as defined in the Acts Interpretation Act 1954.
The amendments to the Domestic and Family Violence Protection Act
1989 update the definition of "spouse" in section 12 of the Act to make it
consistent with the definition in the Acts Interpretation Act 1954. It also
makes it clear that for the purposes of section 12 and the schedule
definition, "spouse" includes a former spouse and people who are the
biological parents of a child are included within the meaning of spouse for
the Act.
The amendments to the Duties Act 2001 ensure that the definition of
"spouse" contained in the dictionary in schedule 6 of the Act applies for the
purposes of the Act despite section 32DA(6) of the Acts Interpretation Act
1954. Clauses 2 and 3 amend sections 423 and 425 of the Duties Act 2001
to take into account the replacement of the definition of "de facto spouse"
with the new definition of "de facto partner". The definitions of "de facto
relationship", "de facto spouse" and "spouse" are omitted from the
dictionary in schedule 6 of the Duties Act 2001. The amendments insert
new definitions of "de facto partner", "de facto relationship" and "spouse"
into the dictionary in schedule 6 of the Duties Act 2001. The new
definition of "de facto partner" incorporates the meaning of "de facto
partner" under section 32DA of the Acts Interpretation Act 1954 with the
addition of a requirement for a minimum cohabitation period of 2 years.
The amendments to the Education (Teacher Registration) Act 1988
remove references to the terms "widow" and "widower", replacing them
with "surviving spouse". The amendments are designed to update the
terminology used in the section so that the new, broader definition of
"spouse" will apply to the section. The amendment will provide rights to
the broader category of persons now included within the definition of
"spouse".
The amendment to the Fire and Rescue Service Act 1990 updates the
terminology used in schedule 4 of the Act by removing a reference to
"living in a de facto relationship" which will be unnecessary following the
commencement of the Acts Interpretation Act 1954 definition of "spouse"
which is inclusive of de facto partners.
The amendments to the First Home Owner Grant Act 2000 amend
section 9(1) of the Act to ensure that the provision operates subject to
subsections (2) to (6). The amendments to section 9(1)(b) of the First
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Discrimination Law Amendment Bill 2002
Home Owner Grant Act 2000 replace the reference to "de facto spouse"
with "de facto partner" to take into account the new expression. A new
subsection 9(2) is inserted into the Act to provide a new meaning of "de
facto partner". This definition incorporates the meaning of "de facto
partner" under section 32DA of the Acts Interpretation Act 1954 with the
addition of a requirement for a minimum cohabitation period of 2 years.
The amendments make also consequential amendments to section 9 of the
First Home Owner Grant Act 2000.
The amendments to section 9(6)(a) of the First Home Owner Grant Act
2000 take into account the replacement of the expression "de facto spouse"
with the new expression "de facto partner".
The amendments also replace subsection 9(6)(b) of the First Home
Owner Grant Act 2000 to ensure that the meaning of "live together on a
genuine domestic basis in a personal relationship as a couple" is derived
from the Acts Interpretation Act 1954, section 32DA.
The amendments insert new subsection 9(8) into the First Home Owner
Grant Act 2000 to ensure that the definition of "spouse" applies for the
purposes of the Act, despite section 32DA(6) of the Acts Interpretation Act
1954.
The amendments to the Fossicking Act 1994 allow the definition "de
facto partner" in the Acts Interpretation Act to apply for the purposes of
section 6(4)(a) of the Fossicking Act 1994.
The amendments to the Health Services Act 1991 clarify that, if a person
has died, the person's spouse may consent to the giving of information that
would enable the person to be identified as having received a public health
service. Currently, section 63(2)(b) of the Health Services Act 1991
enables a person's next of kin to give consent for the giving of information.
However, "next of kin" is not defined for the purposes of that Act.
The amendments also clarify that information concerning the condition
of a person who is a patient in, or is receiving health services from, a public
sector health service may be communicated by a member of the medical
staff of a public sector health service to the person's spouse.
The amendments to the Industrial Relations Act 1999 amend the
definition of "spouse" in the dictionary contained in schedule 5 of the Act
and provide that for the purposes of the Act "spouse" of an employee
includes a former spouse.
The amendments to the Interactive Gambling (Player Protection) Act
1998 omit the definition of "spouse" from the dictionary in schedule 3 of
35
Discrimination Law Amendment Bill 2002
the Act as the term is obsolete as it will now be defined in section 36 of the
Acts Interpretation Act 1954.
The amendments to the Law Reform Act 1995 clarify that the Acts
Interpretation Act 1954 definition of "spouse" does not apply to sections
2(2) and section 18. The amendments also removes references to "spouse"
in the headings to Parts 4 and 7 of the Act and section 18, making it clear
that those parts and section of the Act apply to people who are married. The
amendments also insert a new definition of spouse into the Law Reform Act
1995 for the purposes of section 8 of that Act. Under the amendments
"spouse" is defined by reference to the meaning of spouse in sections 18
and 303 of the Supreme Court Act 1995.
The amendments to the Maintenance Act 1965 clarify that the Acts
Interpretation Act 1954 definition of "spouse" does not apply to section
112 of the Act. The amendment makes it clear that the section only applies
to people who are married.
The amendments to the Mental Health Act 2000 omit the definition of
"spouse" from the dictionary in schedule 2 of the Act. The term no longer
needs to be defined in the Act, as it will be defined in the Acts
Interpretation Act 1954.
The amendments to the Mobile Homes Act 1989 omit the definition of
"spouse" in section 3 of the Act. The definition of spouse is no longer
required as it will be contained in the Acts Interpretation Act 1954 and will
include a de facto partner. The amendments also omit "step-child" from
section 7(2)(b) of the Act and insert an additional subsection (c) to include
a child of the spouse of the occupier.
The amendments to the Parliamentary Contributory Superannuation Act
1970 omit the definition of "widow", and insert a new definition of
"widow" to recognise the extended definition of "spouse" contained in
s.32DA of the Acts Interpretation Act 1954. The amendments also provide
that the term "widow" includes persons of both genders. The amendments
also insert a provision providing that a de facto partner and the member or
former member must live together as a couple on a genuine domestic basis
for a period of at least 2 years ending at the time of death. The time period
can be shorter if the circumstances indicate a clear intention that the
relationship be long term and committed.
Section 21(4) of the Parliamentary Contributory Superannuation Act
1970 is also amended to make it clear that children from a de facto
relationship entered into following the cessation of the member's
membership of the Fund are not to be recognised for benefit payment
36
Discrimination Law Amendment Bill 2002
purposes. This is consistent with the treatment of children from a
marriage.
The amendments to the Partnership Act 1891 remove references to
"widow" and "widower", replacing them with a reference to "a deceased
person's spouse". The amendments update the terminology used in the
section so that the new, broader definition of "spouse" used in the Acts
Interpretation Act 1954 will apply to the section.
The amendments to the Powers of Attorney Act 1998 remove the
references to "spouse" and "de facto spouse" from the dictionary in
schedule 3 of the Act as these definitions are no longer required as the
terms will be defined in the Acts Interpretation Act 1954. In addition, the
amendments clarify that section 52 of the Powers of Attorney Act 1998 only
applies to people who are married.
The amendments to the Property Agents And Motor Dealers Act 2000
inserts a new definition of "associate" into the dictionary in schedule 3 of
the Act which omits references to "de facto spouse". The reference will not
be required as the term "spouse" will be defined to include a de facto
partner in the Acts Interpretation Act 1954. In addition, the reference in the
definition of relative to "step-child" is also omitted.
The amendments to the Property Law Act 1974 remove references to "de
facto spouse or spouses" in Part 19 of the Act and replaces them with "de
facto partner". This ensures that the Part 19 of the Property Law Act 1974
uses terminology, which is consistent with the terminology used in the Acts
Interpretation Act 1954.
The amendments to the Queensland Investment Corporation Act 1991
omit the definition of "spouse" from the definitions contained in section 3
of the Act. This term does not need to be defined as it will be defined to
include a "de facto spouse" in the Acts Interpretation Act 1954.
The amendments to the Registration of Births, Deaths and Marriages
Act 1962 clarify that in section 30 a "relative of a deceased person"
includes a spouse. This will mean that de facto partners and married
spouses have the same obligations to report the death of their spouse.
The amendments to the Reprints Act 1992 omit examples 2 and 3 from
section 24. The examples contain references to husband and wife, which
will be obsolete following the amendments made by this Bill.
The amendments to the Residential Tenancies Act 1994 omit the
definition of "spouse" from the dictionary in schedule 3 of the Act. The
37
Discrimination Law Amendment Bill 2002
term does not need to be defined in the Residential Tenancies Act 1994 as it
will be defined in the Acts Interpretation Act 1954.
The amendments to the Retirement Villages Act 1999 amend the
reference to "relatives" of scheme operators in section 89 so that the term
includes the scheme operator's spouse. The amendments update the
terminology used in section 89 so that the new Acts Interpretation Act 1954
definition of "spouse" will apply to the section.
The amendments to the South Bank Corporation Act 1989 makes it clear
that an "associated adult" of a child for the purposes of section 37I (3)(b)
includes a child's spouse. Under the Acts Interpretation Act 1954, spouse
will include the child's husband, wife, or their de facto partner
The amendments to the State Development and Public Works
Organisation Act 1971 omit the reference to "de facto relationship" in
section 119(4)(d). Section 119(4)(d) provides that a member has an
indirect financial interest in a matter if they have a spouse or live in a de
facto relationship with a person who has an indirect financial interest. The
reference to "de facto relationship" will not be required, as the Acts
Interpretation Act 1954 definition of "spouse" will include de facto
partners.
The amendments to the State Housing Act 1945 replaces references to
"husband and wife" and "widow and widower" in sections 23(2)(c),
24(2)(b), 26(1A)(b), 25(2), 25B(3), 26(3)(b), 30A and 33 (10) with
references to "spouse" as defined in the Acts Interpretation Act 1954. The
amendments also include a transitional provision so that the amendments
to section 25B made by this Bill to not apply to insurance cover that was
provided under section 25B before commencement of this Bill.
The amendments to the Status of Children Act 1978 clarify that the Acts
Interpretation Act 1954 definition of "spouse" does not apply to section
14A(2). In that section "spouse" means husband or wife of the person
referred to in the section.
The amendments to the Succession Act 1981 omit the definition of "de
facto spouse" from section 5. The definition is obsolete as the new
definition of "spouse" included in section 5AA and this definition includes
"de facto partners". The amendments also amend section 5 to insert a
reference to the new definition of spouse in section 5AA. The amendments
also replace the references in the Act to "matrimonial home" with "shared
home". Section 18(1) of the Succession Act 1981 is amended to clarify that
the new Acts Interpretation Act 1954 definition of "spouse" does not apply
for the purposes of that section and the reference to "spouse" is replaced
38
Discrimination Law Amendment Bill 2002
with a reference to "former husband or wife". Section 36 replaces the
reference to a deceased person being survived by a "spouse and a de facto
spouse" with a reference to "more than one spouse". The Bill also effects
consequential amendments to section 36(3) taking into account that a
deceased person may be survived by more than one spouse. The
amendments remove references throughout the Act to "de facto spouses"
which are unnecessary as a result of the insertion of the new section 5AA
in the Succession Act 1981.
The amendment to the Superannuation (State Public Employees
Portability) Act 1985 omits the definition of "relict". This term is obsolete.
The amendments to the Superannuation (State Public Sector) Act 1990
insert a new subsection 6A in section 13, which provides the Minister with
discretion to limit the application of the section to particular classes of
spouses as stated in the QSuper Membership Notice. It is anticipated that a
compelmentary amendment to the QSuper Membership Notice will be
made to ensure eligible spouse contributions cannot be made in respect of
same sex spouses. This is required to ensure the QSuper fund complies
with Commonwealth legislation, which does not currently allow spouse
contributions to be made in respect of same sex partners. The amendments
to section 13 also provide that subsection 6A does not limit the operation of
the Statutory Instruments Act 1992. The amendments also omit the
definition of "spouse" from section 13 so that the definition of "spouse" in
section 32DA of the Acts Interpretation Act 1954 applies.
The amendments to the Torres Strait Islander Land Act 1991 clarify that
the Acts Interpretation Act 1954 definition of "spouse" does not apply to
section 39(3)(a) and 76(3)(a). In those sections "spouse" means "husband
or wife or former husband or wife".
The amendment to the Tourism Queensland Act 1979 replaces the
reference to "widow or widower" in section 17(2)(b) of the Act with
"spouse". This clarifies the entitlement of a surviving spouse of a public
service officer, who was part of the public service before becoming an
officer of Tourism Queensland, to benefits such as superannuation.
The amendment to the Training and Employment Act 2000 replaces the
reference in section 121(6) of that Act to the definition of impairment in
section 4 of the Anti-Discrimination Act 1991 (ADA) with a reference to
the definition of impairment in the schedule. This Bill moves the
definitions in section 4 of the ADA to a schedule. This amendment reflects
this.
39
Discrimination Law Amendment Bill 2002
The amendment to the Transplant and Anatomy Act 1979 removes doubt
that, where a deceased person has more than one spouse, only the person
who most recently became the person's spouse is defined as the "senior
available next of kin" for the purposes of that Act. "Spouse" will be
defined in the Acts Interpretation Act 1954.
The amendments to the Water Act 2000 remove the definition of
"spouse" and "de facto partner" from the dictionary in schedule 4 of the
Act. These definitions are no longer required as the Acts Interpretation Act
1954 will define spouse to include a de facto partner. The amendments also
omit "partner" from the definition of "indirect financial or personal
interest" in schedule 4 as this is will no longer be necessary because of the
expanded definition of "spouse" in the Acts Interpretation Act 1954.
© State of Queensland 2002