Smith Murray: Relationships (Statutory References) Bill — In Committee 
Smith Murray: Relationships (Statutory References) Bill — In Committee 
[Volume:624;Page:19093] 
MURRAY SMITH (United Future) 
: 
 In talking to Part 2 I note that there are some comprehensive schedules in terms of amendments to regulations that demonstrate the sort of thing I was saying in my principal speech about the difficulty and confusion that will arise in regard to not defining what a de facto relationship is. It starts with the definition in the provision that the Justice and Electoral Committee has added in clause 40 which inserts a new section 29A into the Interpretation Act. The new section 29A states that: “(5) In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union the court or person required to determine the question must have regard to—(a) the context or the purpose of the law in which the question is to be determined; and (b) all the circumstances of the relationship.” In my view the comment on the “context or the purpose of the law in which the question is to be determined;” will create huge uncertainty and a lot of confusion particularly because it is not just the way that the courts will interpret the clause but it is also which “court or person” will be required to determine it. 
As we look at some of the regulations in schedule 15 we can see exactly what the consequences of the provision will be. How do we define the “context or the purpose of the law”? In the Alcoholism and Drug Addiction (Forms) Regulations there is provision for a de facto partner to sign a form that enables treatment of people who are afflicted with alcoholism or drug addiction. How can we say whether a relationship is a de facto relationship in the context of that legislation? Would we ask whether it is the alcoholic partner’s intention that his or her spouse may sign such a form? That is problematic in itself because it may well be that the alcoholic partner is not happy about such a form being signed. So how do we determine whether in the context of that legislation it was part of the purpose of that couple’s de facto relationship that that right should be given to the de facto partner? That is the problem that we find ourselves with. 
To take another example in the Cremation Regulations a de facto partner can sign a certificate to enable his or her partner’s body to be cremated. How do we determine whether in the context of the Cremation Regulations the parties were in a de facto relationship? What does that mean? In order to sign the certificate the partner has to prove somehow that for the purposes of that legislation the parties were in a de facto relationship. One of the problems we have for a start is that obviously the de facto partner has died and therefore is not able to make a comment as to whether he or she would have been happy for the other partner to sign a consent form for his or her body to be cremated. But what does it mean in that context? How does the court determine that the relationship was the sort of de facto relationship that would have enabled the certificate to be signed? What does it mean to state that one is a de facto partner for the purposes of the Cremation Regulations but that one is not a de facto partner for the purpose of other things? For some things one is a de facto partner and for some things one is not. 
When we look at the Government Superannuation Fund Regulations there is the situation where the partner of a deceased contributor may receive a financial benefit if that person was in a de facto relationship. Under the new section 29A(5) that means that the person was openly in a de facto relationship in the context of the Government Superannuation Fund legislation. So how do we determine whether someone was in a de facto relationship? In this instance the Government Superannuation Fund Authority has to determine whether a de facto relationship existed in that context. How will that happen? The new regulation 3(c) of the Government Superannuation Fund Regulations inserted by schedule 15 states that the determination will be based on “… such evidence as the Government Superannuation Fund Authority may in its discretion require …” but there are no guidelines. 
What sort of guidelines will there be? The authority cannot even state that where the person has been declared to have been a de facto partner for the purpose of some other legislation or where the social welfare authorities recognise the person as being in a de facto relationship the authority can take that on board because the legislation as changed by the Justice and Electoral Committee states that that consideration is irrelevant. It is the context of the Government Superannuation fund legislation that will apply in determining whether a de facto relationship exists. 
The Health (Immunisation) Regulations require among other things a de facto partner to advise the school about the immunisation of a child. If a so-called de facto partner does not do that and somebody comes along and says that the partner has contradicted the requirement to advise the school will the partner then say that he or she is not in a de facto relationship for the purpose of those regulations? This legislation is a farce and it will cause a huge waste of time and money for the courts.