GLBT Reform continues in NSW

RIGHTS FOR CHILDREN OF SAME SEX FEMALE PARENTS

Children of female de-facto couples will be given equal rights and protections under new legislation to be introduced into NSW Parliament.

The Iemma Government will adopt a NSW Law Reform Commission recommendation to extend parenting rights to a mother's de-facto lesbian partner.

Attorney General John Hatzistergos said the move would protect the rights of children in this situation who were conceived by artificial fertilisation.

"The protection of children is one of the cornerstones of our society," said Mr Hatzistergos.

"This new law will grant equal rights to children living in domestic situations where mothers are in same sex de-facto relationships."

The new law will bring NSW into line with Western Australia, the ACT and the Northern Territory. New Zealand and Canada also have similar laws.

Currently, under the Status of Children Act 1996, only heterosexual couples who have children through artificial fertilisation have parental presumptions.

"This will give children greater protections in, for example, an emergency health situation where a parent might be required to sign consent forms," said Mr Hatzistergos.

"Female de-facto parents will have a responsibility to protect and provide for their children, just like everyone else," said Mr Hatzistergos.

He said having two parents recognized gave children equal rights to:

1. - Workers compensation and victim compensation payments where one or both parents are killed or injured.

 

2. - Inheritance of both of the parents' assets.

 

3. - Recognition of both parents by school authorities.

 

4. - Improving access to guardianship orders for elderly parents.

 

On top of the new parenting laws, the Iemma Government will reform almost 50 other laws that extend equal rights and obligations to de-facto couples.

As part of the reform process, the Iemma Government will update anti-discrimination laws to address possible discrimination based on a person's domestic status.

The new laws were recommended by the Law Reform Commission which consulted widely with stakeholders. They will be introduced to Parliament in coming months.

The laws do not address complex reforms on same sex adoption and surrogacy - which are being dealt with by ministerial councils on health, community services and attorneys general.

FACT SHEET

The NSW Law Reform Commission was asked to review the Property (Relationships) Act 1984.

The Commission's report makes 59 recommendations, relating to:

1.  
   1. • the definition of de facto and close personal relationships;

    

   2. • financial adjustment on breakdown of such relationships; and

    

   3. • jurisdictional and procedural issues relating to these.

    

The Iemma Government has accepted 21 of these.

Nine of the remaining 38 recommendations are not relevant because they relate to the fact the Howard Government refused to take up a NSW referral on property matters relating to the breakdown of same sex relationships. The report makes recommendations to allow NSW to address same sex property matters in the absence of Commonwealth legislation, but as the Rudd Government has announced it will take up the referral, the nine recommendations are no longer relevant.

Another 10 recommendations have been noted or were not regarded as relevant in light of the Iemma Government's response to other recommendations in the report.

Further consultation is taking place with regard to four recommendations.

The report recommended a registration system for domestic relationships, which include all de-facto relationships.

The Iemma Government has not accepted the recommendation in this form.

The Government believes a registration system would best include all states and territories and be run by the Commonwealth.

The Government notes that the registers in the ACT, Tasmania and Victoria differ. The Government will, however, examine the functioning of the registers.

15 recommendations have not been accepted, they relate to such things as removing the co-habitation requirement for de facto relationships and changing the name of the Property (Relationships) Act to the Relationships Act.

Parentage presumptions for same sex female couples

The report recommends that same sex female partners be granted parentage rights for children conceived through in vitro fertilisation or artificial insemination.

The Government will change the parentage presumptions for children born using fertilisation procedures such as IVF to remove discrimination against lesbians.

This will not include children in same sex couples who were conceived through sex or who have been adopted, this is because to do so would extinguish the rights of a birth parent.

Currently, when a woman uses a fertilisation procedure to conceive a child, the sperm donor is presumed not to be the father, and there is a legal presumption that the husband or de facto male partner of the woman is the father.

The Government will extend this presumption to cover the female de facto partner of the mother if a same sex relationship exists.

The question of adoption and surrogacy is more complex and is currently under consideration of the health, community services and attorneys general ministerial councils.

Extending definition of de facto to other acts

The definition of de facto in the Property (Relationships) Act already includes same sex couples.

The Government has previously extended this definition to a large range of other acts, and the Report identifies several more.

The Government has undertaken an audit and identified nearly fifty other acts where the de facto definition should also apply.

This will include Acts that confer benefits, such as:

It will also include acts that place an obligation for disclosure in relation to de facto partners, such as the Local Government Act.

Anti-Discrimination Act - ‘domestic status'

The Government will amend the ‘marital' ground of discrimination in the Anti-Discrimination Act which includes discrimination based on heterosexual married or de facto relationships only, to include discrimination arising out of a person's domestic status.

This amendment will ensure that people who are discriminated against on the basis of their domestic status, including their status as living in a same-sex relationship, in the areas of work, education, provision of goods and services, accommodation and registered clubs have rights under the Anti-Discrimination Act.

This is a recommendation made by the report and will provide an avenue for redress of unlawful discrimination which may arise as a result of disclosure of a same-sex relationship under the new disclosure requirements.

ENDS