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Legislative Assembly for the ACT: 2002 Week 10 Hansard (28 August) . . Page.. 2988 ..

MR STANHOPE (continuing):

There is also a presumption that applies where a woman is not married. In this case any man who produced semen used in the procedure is conclusively presumed not to be the father of any child born as a result of the pregnancy occurring by reason of that procedure. This latter presumption would currently apply to a child born to a lesbian couple using an artificial insemination or in vitro fertilisation procedure to conceive, so that the donor of the semen would be conclusively presumed not to be the father of the child. But should the legislation go further? Should it provide that where the birth mother of the child conceives with the consent of her partner her partner is also conclusively presumed to be the parent of the child?

A side issue, although not a determinative one, is how these sorts of presumptions might be reflected in the Births, Deaths and Marriages Registration Act 1997. The registration requirements under that legislation currently only provide for the registration of the mother and the father of a child. While it may be possible to amend that legislation to register the parents of a child, this raises the much broader question of the purpose of birth registration information.

The purpose of the register has already been stretched beyond containing birth information so that it now includes adoption information and information arising from surrogacy arrangements. It is one of the purposes of the births register to provide social parentage information.

Another very complex issue is the treatment of property in succession matters. The Administration and Probate Act 1929 and the Family Provision Act 1969 both currently make provision for a domestic partner, which includes a same-sex partner, to benefit from the estate of a deceased person. The domestic partner does not, however, benefit in exactly the same way as they would if they were a spouse of the deceased person.

A spouse of a deceased person is entitled to an interest in the deceased's estate regardless of the length of the marriage. The domestic partner must have been a domestic partner of the deceased for at least two years or be the parent of a child of the deceased. Should this two-year qualifying period continue to apply, would the same-sex partner of the deceased birth parent of a child be regarded as the parent of the child of the deceased for the purposes of this provision?

Other issues are more straightforward. Under the Powers of Attorney Act 1956, for example, the signature of the donor of an enduring power of attorney must be witnessed by two persons, neither of whom is the donee of the power or a relative of the donee or the donor. This requirement relates to the need to establish an independent witness who can attest to the circumstances in which the power of attorney was signed.

While the definition of relative includes a spouse and de facto spouse but not the partner in a same-sex relationship, this does not have a discriminatory effect in the sense that such a person is treated unfavourably. In fact, such a partner can do things that a spouse or de facto spouse cannot do-that is, be a witness to a power of attorney. While the definition does not have a discriminatory effect, it would seem to be appropriate to amend the provision to include a same-sex partner in order to give better effect to the intention of the provision, which is to protect the interests of a donor of a power of attorney.

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