2nd Reading Speech

5 June 2018

The Hon. ADAM SEARLE (21:26): I lead for the Opposition in debate on the Miscellaneous Acts Amendment (Marriages) Bill 2018. The Opposition does not oppose the legislation. The object of the bill is to provide for various legislative amendments that are consequent on the commencement of the Commonwealth legislation called the Marriage Amendment (Definition and Religious Freedoms) Act 2017, better known as the marriage equality legislation, which commenced on 17 December last year. The amendments to be achieved by the legislation are to update terminology relating to marriage and parentage in various Acts and statutory instruments, as provided in schedules 1, 2 and 6; to extend the existing exceptions to the hearsay rule to any married persons, as provided in schedule 4, and to provide the entitlement to register a change of sex to any married person, as provided in schedule 3; and to set out in schedules 5 and 7 the effect to certain enduring guardianship appointments and registered relationships.

The primary legislation is the 2017 Commonwealth legislation. While the Commonwealth has the obvious constitutional power for that legislation, there is a range of legislative provisions that the Commonwealth does not have jurisdiction over, being State laws, that must change as a result of the marriage equality legislation. Those changes are dealt with in this bill. As a result, most of the bill consists of a range of quite technical changes. The Government said in its second reading speech that this was the first bill in any State or Territory legislature to introduce comprehensive consequential amendments flowing from the 2017 marriage equality legislation. I also note the statement in the second reading speech that the Government’s policy intent is not to go beyond the changes covered in the Commonwealth legislation.

Schedule 1 updates the terminology of the definitions of spouse, relatives, dependants and similar terms, and removes some redundant provisions in 46 separate Acts or regulations from the Aboriginal Land Rights Regulation to the Workplace Injury Management and Workers Compensation Act—for example, section 4 (2) (d) (i) of the Anatomy Act, which says that the person’s “husband or wife” is replaced by the words “a person to whom the person is legally married (including husband or wife of the person)”. As noted in the second reading speech, gender-inclusive or gender-neutral language is used while reference to wife, husband and de facto are often retained.

Schedule 2 amends legislation dealing with terms relating to parentage in the Adoption Act, the Adoption Regulation, the Guardianship of Infants Act and the Status of Children Act. Schedule 3 importantly removes restrictions from the Births, Deaths and Marriages Registration Act so that a person who changes their sex and is married may have that change of sex recorded on the register.

Currently, a person who undergoes a sex affirmation procedure can have their registered sex altered on the register. At present, that is restricted to people who are not married. That flows from the pre-December 2017 Commonwealth definition of a marriage being between a man and a woman. Amending the sex of a married person would then have resulted in the marriage becoming a same-sex marriage which would be inconsistent with the then Commonwealth provisions. That would sometimes perversely lead to divorce to allow the registration desired. Of course, that is not a desired outcome.

The Evidence Act amended by schedule 4, section 73 provides an exception to the hearsay rule so that it does not apply to evidence of reputation concerning whether a man and a woman cohabiting at a particular time were married to each other at that time. That provision in section 73 (1) (b) is altered by replacing “a man and a woman” with “two people”. There is also a transitional provision. Schedule 5 amends the Guardianship Act to deal with certain enduring guardian appointments that would otherwise be revoked because of the impact of the Commonwealth legislation. The Married Persons (Equality of Status) Act is amended by schedule 6 which updates references and provides for the making of various regulations. Schedule 7 provides for the revocation of a relationship registered under the Relationship Register Act. With those comments, the Opposition does not oppose the bill.