ACTS INTERPRETATION (REGISTERED RELATIONSHIPS) REGULATIONS 2019 (F2019L00280) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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ACTS INTERPRETATION (REGISTERED RELATIONSHIPS) REGULATIONS 2019 (F2019L00280)

ACTS INTERPRETATION (REGISTERED RELATIONSHIPS) REGULATIONS 2019

EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General

Purpose and operation of the Instrument

Outline

The Acts Interpretation Act 1901 (the Act) provides rules for the interpretation of Acts of the Commonwealth Parliament.

Section 51 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 2D of the Act prescribes a definition of 'de facto partner' that may be referred to by other Commonwealth laws. Paragraph 2D(a) provides that a person is the de facto partner of another person if they are in a registered relationship with the other person under section 2E.

Section 2E of the Act provides that a person is in a registered relationship with another person if that relationship is registered under a prescribed state or territory law as a prescribed kind of relationship.

The Acts Interpretation (Registered Relationships) Regulations 2008 (the current Regulations) prescribe State and Territory relationship laws, and the kinds of relationships registered under those laws for the purposes of section 2E of the Act.

Under section 50 of the Legislation Act 2003 the current Regulations are due to sunset on 1 April 2019.

The purpose of the Acts Interpretation (Registered Relationships) Regulations 2019 (the new Regulations) is to remake the current Regulations to ensure their continued operation. Minor amendments have been made to ensure their fitness for purpose and to incorporate changes which more accurately reflect the requirements of section 2E of the Act.

The new Regulations prescribe the State and Territory laws, and the kinds of relationships, for the purposes of section 2E of the Act.

The combined effect of sections 2D and 2E of the Act, and the new Regulations, is to ensure that the registration of prescribed kinds of relationships under prescribed State and Territory laws will provide conclusive proof that a person is another person's de facto partner.

The table in section 5 of the new Regulations draws explicit attention to the two separate requirements of the definition of a 'registered relationship' in section 2E of the Act.

The provisions that relate to New South Wales (NSW) and Victorian couples have been modified to better match the requirements of section 2E of the Act. In particular, they now explicitly separate the two conditions in that section, prescribing separately the type of relationships and the laws under which those relationships can be registered. It is intended that this new formulation will clarify how section 2E of the Act operates in relation to the NSW and Victorian relationship registration laws, but will not substantively change which couples are considered to be in a registered relationship under section 2E.

In addition, the entry in the 2008 Regulations referring to the Civil Unions Act 2012 (ACT) (Civil Unions Act) has been updated. Civil unions as described in subsection 6(1) of the Civil Unions Act are registered under Part 5A of the Births, Deaths and Marriages Registration Act 1997 (ACT) (BDMR Act), not the Civil Unions Act. As such, the new Regulations now reference section 32A of the BDMR Act, which provides that if a civil union is entered into under the Civil Unions Act, then it must be registered under Part 5A of the BDMR Act. It is intended that this new formulation will be more consistent with the wording of section 2E of the Act, but it is not intended to substantively change which relationships are considered to be registered relationships under section 2E of the Act.

Despite these changes, it is intended that the new Regulations would apply to the same cohorts as the 2008 regulations, and that there would be no change to the status of a couple's relationship under section 2E as a result of the new regulations.

Consultation

Before the new Regulations were made, the Attorney General considered the general obligation to consult imposed by section 17 of the Legislation Act.

Commonwealth bodies which have portfolio responsibility for legislation that imports the definition of 'de facto partner' from the Act, and State and Territory bodies which have responsibility for the prescribed State and Territory relationship registration laws, were consulted on, and support, the 2019 Regulations.

Regulation Impact Statement

The Office of Best Practice Regulation (OBPR) has confirmed that a Regulation Impact Statement is not required for the 2019 Regulations. The OBPR reference is ID 23998.

OTHER DETAILS

Details of the new Regulations are at Attachment A.

A statement of compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is at Attachment B.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The 2019 Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

 


 

ATTACHMENT A

Details of the Acts Interpretation (Registered Relationships) Regulations 2019.       

Section 1         Name

This section provides that the instrument is named the Acts Interpretation (Registered Relationships) Regulations 2019. The instrument may be cited by that name.

Section 2         Commencement

This section provides for the instrument to commence on the day after it is registered.

Section 3         Authority

This section provides that the instrument is made under the Act.

Section 4         Schedules

This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed according to the terms set out in the Schedule, and any other item in a Schedule to the instrument has effect according to its terms.

Section 5         Registered relationships

This section prescribes the State and Territory laws, and the kinds of relationships, for the purposes of section 2E of the Act.

The combined effect of sections 2D and 2E of the Act, and the 2019 Regulations, is to ensure that the registration of prescribed kinds of relationships under the prescribed State and Territory laws will provide conclusive proof that a person is another person's 'de facto partner' in Commonwealth legislation (unless otherwise provided by that legislation).

Column 1 of the table in section 5 prescribes each of the existing State and Territory laws under which a prescribed 'kind of relationship' is registrable for the purposes of section 2E of the Act. They are:

*         Item 1--Relationships Register Act 2010 (NSW)

*         Item 2--Relationships Act 2008 (Vic.)

*         Item 3--Civil Partnerships Act 2011 (Qld)

*         Item 4--Relationships Register Act 2016 (SA)

*         Item 5--Relationships Act 2003 (Tas.)

*         Item 6--Domestic Relationships Act 1994 (ACT), and

*         Item 7--Births, Deaths and Marriages Registration Act 1997 (ACT).

Column 2 of that table prescribes the kinds of relationships which, when registered under the corresponding State or Territory scheme in Column 1, will satisfy the definition of being in a 'registered relationship' for the purposes of section 2E of the Act. The prescribed kinds of relationships are:

*         Item 1--a relationship that may be registered in accordance with Part 2 of the Relationships Registration Act 2010 (NSW). Subsection 5(1) of that Act provides that two adults who are in a relationship as a couple, regardless of their sex, may apply for registration of their relationship.

*         Item 2--a registrable domestic relationship that may be registered in accordance with Part 2.2 of the Relationships Act 2008 (Vic.). Section 5 of that Act provides that a registrable domestic relationship is a relationship between two adult persons who are not married to each other but are a couple, where one or each of the persons in the relationship provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof.

*         Item 3--a relationship that may be entered into in accordance with sections 4 and 5 of the Civil Partnerships Act 2011 (Qld). Section 4 of that Act provides that a civil partnership is a legally recognised relationship that, subject to that Act, may be entered into by any 2 adults, regardless of their sex. Section 5 provides the eligibility criteria for entering into a civil partnership.

*         Item 4--a relationship that may be registered in accordance with Part 2 of the Relationships Register Act 2016 (SA). Subsection 5(1) of that Act provides that two adults who are in a relationship as a couple, irrespective of their sex or gender identity, may apply for registration of their relationship.

*         Item 5--a significant relationship in relation to which a deed of relationship may be registered in accordance with Part 2 of the Relationships Act 2003 (Tas.). Subsection 4(1) of that Act provides that a significant relationship is a relationship between two adult persons who have a relationship as a couple and are not married to one another or related as family.

*         Item 6--a civil partnership that may be entered into in accordance with sections 37C and 37D of the Domestic Relationships Act 1994 (ACT). Section 37C sets out the eligibility criteria for entering into a civil partnership. Section 37D provides that two adults who are in a relationship as a couple, regardless of their sex, and who meet the eligibility criteria in section 37C, may enter into a civil partnership by having their relationship registered.

*         Item 7--a civil union that must be registered under section 32A of the Births, Deaths and Marriages Registration Act 1997 (ACT). That section provides that a civil union entered into under the Civil Unions Act 2012 (ACT) must be registered. Section 7 of the Civil Unions Act 2012 (ACT) sets out the eligibility criteria of entering into a civil union.

Schedule 1       Repeals

This Schedule provides that the whole of the Acts Interpretation (Registered Relationships) Regulations 2008 is repealed.

The 2008 Regulations are due to sunset on 1 April 2019, and will be replaced by the 2019 Regulations. The 2019 Regulations will actively repeal the old regulations upon commencement.


 

AtTachMENT B

Statement of Compatibility with Human Rights

The Acts Interpretation (Registered Relationships) Regulations 2019 (the 2019 Regulations) are compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

Overview of the 2019 Regulations

The 2019 Regulations are made under section 51 of the Acts Interpretation Act 1901 (the Act). Under that section, the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The 2019 Regulations are necessary to give effect to sections 2D and 2E of the Act. Section 2D prescribes a definition of 'de facto partner' that may be referred to by other Commonwealth laws. Paragraph 2D(a) provides that a person is the de facto partner of another person if they are in a registered relationship with the other person, as defined by section 2E. Section 2E provides that a person is in a registered relationship with another person if that relationship is registered under a prescribed state or territory law as a prescribed kind of relationship.

 

The 2019 Regulations prescribe the State and Territory laws, and the kinds of relationships, for the purposes of section 2E of the Act. The combined effect of sections 2D and 2E of the Act and the 2019 Regulations, is to ensure that the registration of prescribed kinds of relationships under the prescribed State and Territory laws will provide conclusive proof that a person is another person's 'de facto partner' in Commonwealth legislation.

Human Rights Implications

The 2019 Regulations engage article 26 of the International Covenant on Civil and Political Rights (the ICCPR). Article 26 provides the right to equal protection of the law without discrimination.

The 2019 Regulations prescribe kinds of relationships that are gender neutral and apply to both same-sex and opposite-sex couples. These are:

*         a relationship that may be registered in accordance with Part 2 of that Relationships Registration Act 2010 (NSW). Subsection 5(1) of that Act provides that two adults who are in a relationship as a couple, regardless of their sex, may apply for registration of their relationship.

*         a registrable domestic relationship that may be registered in accordance with Part 2.2 of the Relationships Act 2008 (Vic.). Section 5 of that Act provides that a registrable domestic relationship is, amongst other things, a relationship between two adult persons irrespective of their genders.

*         a relationship that may be entered into in accordance with sections 4 and 5 of the Civil Partnerships Act 2011 (Qld). Section 4 of that Act provides that a civil may be entered into by any two adults, regardless of their sex.

*         a relationship that may be registered in accordance with Part 2 of the Relationships Register Act 2016 (SA). Subsection 5(1) of that Act provides that two adults who are in a relationship as a couple, irrespective of their sex or gender identity, may apply for registration of their relationship.

*         a significant relationship in relation to which a deed of relationship may be registered in accordance with Part 2 of the Relationships Act 2003 (Tas.). Section 4 of that Act provides that a significant relationship is, amongst other things, a relationship between two adult persons. This section is gender neutral and applies to both same-sex and opposite-sex couples.

*         a civil partnership that may be entered into in accordance with sections 37C and 37D of the Domestic Relationships Act 1994 (ACT). Section 37D provides that two adults who, amongst other things, are in a relationship as a couple, regardless of their sex, may enter into a civil partnership.

*         a civil union that must be registered under section 32A of the Births, Deaths and Marriages Registration Act 1997 (ACT). That section provides that a civil union entered into under the Civil Unions Act 2012 (ACT) must be registered. Section 7 of the Civil Unions Act provides that a person may enter into a civil union if the eligibility criteria are met. This section is gender neutral and applies to both same-sex and opposite-sex couples.

As such, the 2019 Regulations support the right to equal protection of the law by ensuring that same-sex couples are recognised and have the same entitlements as opposite-sex de facto couples for the purposes of Commonwealth laws which reference a 'de facto partner'.

Conclusion

The 2019 Regulations are compatible with the human rights and freedoms listed in section 3 of the Human Rights Act in accordance with the right to equal protection of the law without discrimination in article 26 of the ICCPR.

 

 


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