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Where am I now? Lawlink > Law 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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