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Where am I now? Lawlink
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Reform Commission > Publications
> The Hon Jeff Shaw QC, Opening Address
SEMINAR PAPERS: A Discussion
Forum on Relationships and the Law (Sydney, 7 July
2000)
The Hon
Jeff Shaw QC, Opening Address
The Honourable Madame Justice
L’Heureux-Dube, distinguished guests, colleagues, ladies and
gentlemen, It is my pleasure to open
this discussion forum on the New South Wales Law Reform Commission’s
review of the Property (Relationships)
Act 1984.
As most of you will be aware, the coverage of
this Act was significantly reformed in 1999 so that it provides a
non-discriminatory framework with respect to the rights and
responsibilities of people living in intimate relationships.
Before the Property (Relationships) Legislation Amendment Act
1999 was enacted the Law Reform
Commission and other commentators had identified a number of issues of
serious concern about the operation of the then De Facto Relationships Act 1984.
In particular, concern was expressed about the way in which the property
adjustment provisions of the Act have recently been
interpreted by the NSW Court of Appeal. However, in my capacity as the
then Attorney General, I considered it of paramount importance that the
Act
and numerous other NSW statutes be amended so as to end discrimination
against gays and lesbians who choose to live together in intimate
relationships before endorsing a wider investigation into the operation of
the Act generally.
In reaching this conclusion I was mindful of
the view of many in the community, particularly, but not exclusively, in
the gay and lesbian community, that it was inappropriate to continue to
maintain discriminatory provisions in legislation which accorded rights to
spouses and heterosexual de facto partners. This was especially clear when
regard was had to the following circumstances:
- Firstly, Australia’s human rights
commitments (in particular, to the International Covenant on Civil and
Political Rights
- Secondly, the need for same sex couples to
revert to the expensive and time consuming remedies of the Equity
Division of the Supreme Court to establish rights available to
heterosexual de facto couples by virtue of the De Facto Relationships
Act, and to the specialist discrimination tribunals when discriminated
against in circumstances where discrimination would have been
considerably less likely if they had been a heterosexual couple;
and,
- Thirdly, the enactment of the
Domestic Relationships
Act in the Australian Capital
Territory in 1994. This Act gave rights of a similar nature to those
contained in the NSW De Facto
Relationships Act to persons in
relationships of a caring nature, including those between same sex
couples and other intimate relationships.
Fortunately, the political climate after the 1999 State
elections made this reform possible and in June 1999 the Property (Relationships) Legislation Amendment
Act was enacted.
It was a historic moment in law reform and one
noted by His Honour, Justice Michael Kirby , in a recent address to the
London Conference on Legal Recognition of Same-Sex Partnerships organised
by the Law School of King’s College, London as “significant and
symbolic”.
Although at times the amendments to the then
De Facto Relationships Act
and other cognate statutes seemed
politically impossible, in the end they were profoundly simple.
The fundamental change in the legislation is
found in the definition provisions of what is now the Property (Relationships) Act 1984 and in the definition of ‘spouse’ or like terms in the
cognate amendments to other Acts.
The key relationship to be aware of is now that
of ‘domestic relationship’.
A ‘domestic relationship’ is defined in the
Act
to mean:
- a ‘de facto relationship’ or
- ‘a close personal relationship (other than
a marriage or a de facto relationship) between two adult persons,
whether or not related by family, who are living together, one or each
of whom provides the other with domestic support and personal
care.’
A ‘de facto
relationship’ is redefined in the Act as:
- ‘a relationship between two adult persons
who live together as a couple and who are not married to one another
or related by family.’
The
Act gives some assistance in determining whether two people are in a de
facto relationship, by reducing the criteria that have been considered in
the common law to a statutory list. The Act says specifically that ‘in
determining whether two persons are in a de facto relationship, all the
circumstances of the relationship are to be taken into account, including
such of the following matters as may be relevant in a particular
case:
- the duration of the relationship,
- the nature and extent of common residence,
- whether or not a sexual relationship
exists,
- the degree of financial dependence or
interdependence and any arrangements for financial support, between
the parties,
- the degree of mutual commitment to a
shared life,
- the care and support of children,
- the performance of household duties,
- the reputation and public aspects of the
relationship.
This is not an
exclusive list and the Act goes on to say that a court
does not need to make any finding in respect of the criteria mentioned or
any combination of them in order to find that a de facto relationships
exists and it ‘is entitled to have regard to such matters, and to attach
such weight to any matter, as may seem appropriate to the court in the
circumstances of the case.’
No such list is provided to assist the court in
determining the existence or otherwise of a ‘close personal relationship’
although the Act does make it clear that such a relationship cannot be
found to exist where one of the parties provides the other with domestic
support and personal care ‘for fee or reward or on behalf of another
person or an organisation (including a government or government agency, a
body corporate or a charitable or benevolent organisation).’ Also, my
second reading speech on the Bill specifically referred to
the sorts of domestic support and personal care that might characterise
such a relationship.
As a concomitant of the expanded categories of
persons who may be entitled to relief under the Act the definition of a
child of a relationship to which the Act applies is now expanded to
include ‘a child for whose long-term welfare both parties have parental
responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act
1998.)’
Apart from these, not insubstantial
definitional changes, the structure and application of the Act remain the same
as the previous De Facto Relationships
Act 1984.
The cognate amendments to other Acts are made
to statutes dealing with property, stamp duty, inheritance, death, illness
and incapacity, compensation and criminal law. Whilst at first glance the
nature of the statutes affected seems quite broad, they were selected for
amendment primarily on the basis of a policy commitment of the Premier,
whilst he was in Opposition, to give rights to same sex partners with
respect to hospitalisation and incapacity and on the death of one of the
partners.
Since there remains a substantial body of
legislation that still discriminates against those in same sex
relationships, further remedial legislation is necessary. Many of these
statutes are identified in the December 1999 Report of the Legislative
Council’s Standing Committee on Social Issues entitled “Domestic
Relationships: Issues for Reform, Inquiry into De Facto Relationships
Legislation”.
That Report also highlights a number of issues
for further consideration by the Law Reform Commission in the course of
their present review of the Property
(Relationships) Act and I know they are
keen to generate debate about some of those issues.
With that in mind, it is with much pleasure
that I hand over the speaker’s podium to our distinguished guest, Madame
Justice Claire L Heureux-Dube, of the Supreme Court of
Canada.
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