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Legislative Assembly for the ACT: 2002 Week 8 Hansard (25 June) . . Page.. 2185 ..

MS TUCKER (11.07): I move the amendment circulated in my name [see schedule 2 at page 2218].

The Compensation (Fatal Injuries) Act sets out a process for compensation to relatives of persons whose deaths are caused by wrongful acts, neglects or defaults. It applies in cases where, if the person had survived the injury caused by the wrongful act, neglect or default, they would have been able to claim compensation. Several clauses are being updated by the Statute Law Amendment Bill, but the clause of concern here is the one that defines de facto couples as members of a deceased person's family.

The Statute Law Amendment Bill updates the language of this provision from a bona fide domestic basis to a genuine domestic basis. However, it leaves untouched a quite out-of-date definition of what is a de facto couple which has serious implications for some members of our community. The definition at section 3 (h) refers currently to a person who, immediately before the death of the deceased person, was living with the deceased person as wife or husband. The phrase "as wife or husband", because these are terms defined by marriage and because marriage is only recognised by the current federal government as existing between people of opposite sex, excludes equally committed couples of the same-sex from recognition as family.

This means that a person in this situation whose long-term de facto partner has been killed by a wrongful act is excluded from recognition as a member of that person's family and is excluded from access to compensation which other people in the same situation would have, except for their sexuality. This terminology is clearly quite out of date in the ACT. Our Domestic Relationships Act 1994, while it does not specifically mention same-sex couples, was structured so that it included same-sex couples along with different sex couples in its understanding of de facto and domestic relationships, removing any unnecessary distinction on the basis of gender from its definitions.

My amendment brings this definition of de facto relationships up to date by removing reference to the gender specific husband or wife. It follows the pattern set in some other acts of making clear that the absence of reference to heterosexual relationships means an active inclusion of homosexual relationships on the same footing as heterosexual ones. It is clear that there is an unacceptably wide variation in definitions relevant to couples across ACT legislation. This amendment has been developed from existing definitions in an effort not to expand the boundaries.

The Coroners Act, at section 3, contains the phrases "in a de facto marriage relationship with the deceased" and "in a relationship (whether or not with a person of the same or the opposite sex) in which one provided personal or financial commitment and support of a domestic nature for the material benefit of the other". The Guardianship and Management of Property Act uses "a person, includes a person of the opposite sex to the person who is not legally married to the person but who lives with the person on a bona fide domestic basis".

This amendment uses the phrase "whether of the same-sex or a different sex" in preference to other forms of words so as to be clearly inclusive. It uses "de facto" as a more generally understood definition of the relationship, one more easily understood than the slightly ambiguous "bona fide domestic basis". We could equally have used the Guardianship and Management of Property Act definition.

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