Page 1618 - Week 05 - Thursday, 11 May 2006
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As I said, some of the anomalies accrue rights that people normally would not have, but, on the other side, two minors in a civil union will accrue certain rights and capacities currently reserved to adults or those married to adults. The bill will erode safeguards present in much of the existing legislation according to which certain rights and capacities are reserved for individuals who have attained the age of majority or who are married to somebody who has attained the age of majority.
For example, if this bill is passed, two minors in a civil union would be immediately entitled to share in an intestate estate through section 46 (1) of the Administration and Probate Act. Under the existing law, a minor could gain such an entitlement only if he were married to someone who had attained the age of majority. It can only be assumed that this would be the effect of the bill’s proposed addition of section 168A to the Legislation Act. This section basically states that references to spouse, marriage or married includes references to a civil union partner, civil union and being in a civil union.
In general terms, the current scheme of the law ensures that either an individual or his husband or wife has the capacity to deal with that to which he is entitled, but if this bill were to be passed it would result in various lacunae whereby a minor in a civil union may accrue an entitlement which neither he nor his civil union partner would have the capacity to deal with.
There are other novelties in the bill which I think show that it has not been particularly thought through. Although Mr Barr did speak about doing away with discrimination, in substantive terms this bill does little to increase the rights of two people in a homosexual relationship, and what it does is largely symbolism. This is because there are very few areas of the current ACT law under which a husband or a wife has more rights or capacities than those that used to be known as de facto relationships and are nowadays called domestic partnerships. It is interesting to see the evolution of the law in the ACT. We went through a process of redefining de facto relationships as domestic partnerships and now we are going back and re-redefining them as civil unions.
I think that most of the areas of discrimination that are covered by ACT law have already been addressed by legislation supported by the Liberal opposition in this place. Mr Barr may shake his head, but the moves to remove discrimination in matters of property, in testacy and in things like that have already been addressed in this place.
There are a couple of other interesting things which can only be described as novelties that do make us twist our eyes rather. One of them, I think, is sadly just a little bizarre. That arrives through amendments to division 2.2 of the Parentage Act. Section 7 of the Parentage Act currently provides that a child born to a woman while she is married is presumed to be the child of the woman and her husband. This bill proposes that “husband” should be amended to “spouse”, which could include someone in a civil union and “married”, of course, would now include a civil union. As such, it should now be presumed, even for two women in a civil union, that one woman is the parent of the child and the other becomes the father of the child. It now means, Mr Speaker, that a natural father of a child born to one of two females in a civil union would have to commence legal proceedings in this absurd position of having to disprove the paternity of the female in the civil union who did not carry the child.
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