Legislative Assembly for the ACT: 2003 Week 3 Hansard (13 March) . . Page.. 1024 ..
MS DUNDAS(12.16): Mr Speaker, members will note that the Attorney-General's amendment No 4 and my amendment No 3 are quite similar. But there are some key differences that I would like to discuss.
The Attorney-General's amendment and my amendment would insert a list of indicators of a domestic partnership. The government is suggesting that we do it with an example, whereas I was proposing that we do it by putting it in the legislation. They are two strategies that would produce similar results in the interpretation of the definition. The original definition in the legislation lacked clarity and was based on uncertain legal precedents in other jurisdictions.
The need for the list approach has been vigorously pursued by Canberra's queer community due to the uncertainty that would be caused if it was not included. The ACT Democrats maintain that it is preferable to insert the definition directly into the legislation rather than to rely on the softer and less reliable approach of inserting an example. I believe that the direct approach will provide greater surety for those affected by the legislation and provide a greater direction to our judiciary about how the definition should be interpreted.
Some concern was raised about whether or not inserting it in legislation would mean that the list was all-defining. But my amendment quite clearly states that the list does not limit matters that may be taken into account in deciding whether or not two people are domestic partners. That statement is similar to the note at the bottom of the Attorney-General's amendment. These indicators are not exhaustive. The courts can still take other facts into account when necessary.
I contend that my approach of sticking it into the legislation is stronger than the government's approach and would ensure that the courts did not solely rely on previous definitions of de facto relationships.
There is another small difference between the Attorney-General's amendment and mine. The Attorney-General's list includes "the reputation, and public aspects, of the relationship"between the two people as an indicator, whereas I call for the "social recognition, and public aspects, of the relationship". It is a small difference, and a subtle one at that.
Whilst I am supportive of the need to have the list of indicators, I think it is important that the indicators be in the legislation and have the same standing as the rest of our laws, not just sit there as an example. If the Attorney-General's amendment fails, I hope that people will support the need to have the list in the legislation. However, if the Attorney-General's amendment passes today, I will not be disappointed. The key point is that we should have the list in our legislation so that we do not confine the definition of domestic partnership. We should recognise the factors that influence legal definitions of domestic partnership. I prefer having the indicators in the legislation. If the Chief Minister's amendment is not successful, I will be moving mine. But I am supportive of a list of indicators being in the legislation.
MR STEFANIAK (12.20): I put a query to the Clerk in relation to Ms Dundas's amendment No 2, which would seem to be quite important to amendment No 3. They