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Legislative Assembly for the ACT: 2003 Week 3 Hansard (13 March) . . Page.. 1059 ..
MR STANHOPE
(continuing):The point has been made-I made it prior to the luncheon adjournment and Ms Dundas has just made it-that this is a list of indicators to show whether two people who are not married are in a bone fide domestic relationship, whether they are in a domestic partnership. The reason for that is that a person who is married is, in any event, in a domestic relationship; they are partners. The definition says, as I mentioned earlier, that a married person, a spouse, is included by specific reference in the definition of domestic partner. The definition says:
In an Act or statutory instrument, a reference to a person's domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse of the person.
So, just by that process of elimination, we have a definition of domestic partner. It is someone who lives with a person in a domestic partnership and includes a spouse. We know that, if you are married, you are in a domestic relationship, so we then exclude people who are married when we come to the legislation. The first question the court would ask is, "Are you married?". You would drop your wedding certificate on the table and say, "Yes, we are married. Here's the certificate. And no, we haven't been divorced. Therefore, we are in a domestic partnership. This person is my domestic partner."
When the next group of people came into the court, the judge would ask, "Are you living with this person in a domestic partnership?"The first question he would ask is, "Are you married?"If they say, "No, we are not married, but we do have a domestic partnership,"he would then say, "Well, tell me about yourselves. How long has your relationship been? Are you living together? Under what circumstances do you live together? Do you have sex? Are you financially dependent or interdependent?"He would go through the list and a decision would be made on whether they were domestic partners.
To intrude into that list of indicators a doubling up, as Mrs Burke proposes, by adding whether they are legally married is simply surplusage, as is said in the Office of Parliamentary Counsel. I remember it from when I was an instructing officer in the 1970s and the Office of Parliamentary Counsel would say, "That is surplusage."What a beautiful word!
Mr Stefaniak
: Maybe they use different words now.MR STANHOPE
: Don't they use that word any more?Mr Stefaniak
: I don't know; I had better ask them.MR STANHOPE
: Anyway, Mrs Burke, your proposed amendment is surplusage. Not only is it surplusage, but also on the advice of my officers, whom I trust absolutely, it would potentially confuse the interpretation of the provision and, to the extent that it would confuse, it is dangerous and should be avoided. The government cannot support Mrs Burke's amendment, as much as we understand her intent. It is unnecessary and, we think, potentially could create confusion because it leaves a question in the mind of those using the list of indicators, "What does this mean? We are not spouses, so why is there this reference to legally married in this list of indicators which essentially is for people who aren't spouses?"It is inherently confusing and should not be persisted with.
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