Purpose

The Act amends the Crimes Act 1958 so as to make further provision for the questioning or investigation of persons held in custody who are suspected of having committed an offence other than the offence for which they are held in custody.

The purpose of the Bill is to promote fair and responsible handling of health information by –

[2] The Bill comes into operation on proclamation, but not later than by 1 July 2002.

[3] Provides for definitions used in the Bill including –

"health information" means –

(a) information or an opinion about--

(i) the physical, mental or psychological health (at any time) of an individual; or

(ii) a disability (at any time) of an individual; or

(iii) an individual's expressed wishes about the future provision of health services to him or her; or

(iv) a health service provided, or to be provided, to an individual--

that is also personal information; or

(b) other personal information collected to provide, or in providing, a health service; or

(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or

(d) other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants--

but does not include health information, or a class of health information or health information contained in a class of documents, that is prescribed as exempt health information for the purposes of this Act generally or for the purposes of specified provisions of this Act;

[5] An organisation is deemed to hold health information if the information is contained in a document that is in the possession or under the control of the organisation, whether alone or jointly with other persons or bodies, irrespective of where the document is situated, whether in or outside Victoria.

[8] Provides that nothing in the Bill gives rise to any civil cause of action; or operates to create in any person any legal right enforceable in a court or tribunal otherwise than in accordance with the procedures set out in the Bill. A contravention of the provisions in the Bill do not create any criminal liability except to the extent expressly provided by the Bill. [Refer to section 85 Constitution Act 1975 statement below.]

[9] The Act will bind the Crown in all its capacities.

[10] The Act will apply to all public sector departments and agencies, including Members of the Parliament of Victoria. The Governor in Council may by Order published in the Government Gazette declare a body to be either wholly or in part an organisation to which the Act applies.

[11] The provisions in the Bill will apply to the private sector including a natural person; a body corporate; a partnership; a trust; and any other unincorporated association or body that is a health service provider or collects, holds or uses health information not being a public sector body in [10] above.

[12] Deals with the effect of outsourced services where a State contract results in an interference with the privacy of an individual. In certain circumstances enforcement may be made against the outsourcing organisation.

[13, 14 and 15] Certain health information held by families or households, by courts and tribunals exercising judicial functions and publicly available health information are exempt from the provisions of the Bill.

[16] Ensures that the provisions of the Freedom of Information Act 1982 continue to apply to health information held by public agencies.

[18] Sets out what is an interference with privacy for the purposes of the Act.

[19] Health Privacy Principles (HPP’s) are set out in Schedule 1 of the Act.

[20] Provides that some HPP’s apply prospectively only and others apply to information collected prior to the commencement of the Act.

[22] The Health Services Commissioner (the Commissioner) may, by notice published in the Government Gazette, issue, approve or vary guidelines.

22(5) provides that the Commissioner may only issue, approve or vary guidelines that would have the effect of lessening the level of privacy protection afforded by the relevant HPP’s if he or she is satisfied that the public interest to be protected by the guidelines, or the guidelines as varied, substantially outweighs the public interest in maintaining that level of privacy protection.

[23] The Commissioner may, by notice published in the Government Gazette, revoke an issue or approval of guidelines under 22 if he or she is no longer satisfied of the matter that he or she had to be satisfied of to issue or approve the guidelines.

[24] The Governor in Council may at any time, by notice published in the Government Gazette, disallow a decision of the Commissioner to issue, approve or vary guidelines or to revoke an issue or approval of guidelines.

Right to access health information

[25] Deals with the right of access to health information and provides that an individual has a right of access relating to that individual held by a health service provider or any other organisation and applies to all health information collected on or after the commencement of the Act.

Certain information enumerated in the clause is also amenable to disclosure that was collected prior to the commencement of the section.

Right to withhold information – where threat to life or health of person seeking access

[26] Access to health information may be withheld where there may be a threat to life or health of individual or another person or, [27] where the health information is given in confidence by a third person. A person who gives health information in confidence may consent to the information being communicated to the individual to whom it relates.

[28] Specifies how a right of access may be exercised.

[30] An individual may authorise another person to be given access to their health information.

[36 to 42] Provides for procedures where access to health information is denied on the grounds that access would pose a serious threat to the life or health of the individual.

[44] Provides that it is a term of a contract, whether oral or in writing, for the provision of a health service to an individual, that the health service provider will allow the individual to have access to health information relating to, or is made in consequence of, the provision of the service.

[45 to 46] Deal with complaints to the Commissioner about an act or practice that may be an interference with the health information privacy of an individual or a group of persons, and [47] specifies how a complaint may be made by a child or a person under a disability.

[51] Outlines the circumstances in which Health Services Commissioner may decline to entertain a complaint.

[52-54] The Commissioner may refer a complaint to an appropriate health service registration board and the Minister may refer a complaint directly to the Victorian Civil and Administrative Tribunal (the Tribunal).

[59 to 63] Deals with conciliation of complaints agreements and processes. The Commissioner may require a party to attend a conciliation either personally or by a representative. The Commissioner may give a person a written notice requiring the person to give information to the Commissioner in writing or to produce a document to the Commissioner or attend before the Commissioner at a time and place specified in the notice to answer questions relevant to the complaint. If conciliation fails the matter may be investigated by the Commissioner or proceed to the Tribunal.

[64] The Commissioner may investigate a complaint with or without the conciliation process having taken place.

[65] The complainant or the respondent may require the Commissioner to refer the complaint to the Tribunal for hearing.

[66] The Commissioner may issue a compliance notice to an organisation.

[67] The Commissioner has powers to obtain information and documents, and [69] to administer an oath or affirmation to require persons to answer relevant questions. However, these powers must not be inconsistent with the provisions of the Freedom of Information Act 1982.

[70] Privilege against self-incrimination

Provides that it is a reasonable excuse for a natural person to refuse or fail to give information or answer a question or to produce a document when required to do so under this Part (s.45-s.79), if giving the information or answering the question or producing the document might tend to incriminate the person.

[71] It is an offence not to comply with such a notice.

[72] There is an appeal mechanism against a decision to serve a compliance notice.

[73] The Tribunal may make an interim order before hearing a matter to prevent any party to the complaint from acting in a manner prejudicial to negotiations or conciliation or to any decision or order the Tribunal might subsequently make.

[77] Provides for the inspection of exempt documents of a kind referred to in section 28(1) (Cabinet documents) of the Freedom of Information Act 1982 by the Tribunal.

[78] The orders the Tribunal may make include the award of amounts not exceeding
$100,000, by way of compensation for any loss or damage suffered by the complainant, including injury to the complainant's feelings or humiliation suffered by the complainant, by reason of the act or practice the subject of the complaint. Further orders may involve the reimbursement of expenses incurred in making the complaint and the correction of health information relevant to an individual.

[79 to 84] Deal with offences such as the unlawful destruction or removal of health information to evade or frustrate the operation of the Act, unlawfully requesting or obtaining access to health information, persuading a person not to exercise rights conferred under the Act, hinder, resist or obstruct the Commissioner, failure to attend or give information or produce a document before the Commissioner.

[85] Deals with the legal capacity to consent or make a request (such as a legal representative of the person) or exercise a right of access

[86] Provides certain protection from liability to persons who lodge a complaint or who produce documents, or who gives any information or evidence, to the Commissioner under the Act.

[87 and 88] Provide the functions and powers of the Commissioner.

[91] Provides a delegation power –

(1) The Health Services Commissioner may, by instrument, delegate to a person employed for the purposes of this Act, or a person belonging to a class of those persons, any of his or her powers under this Act other than this power of delegation.

(2) The Health Services Commissioner may, by instrument, delegate to any person any of his or her powers under Division 3 of Part 6.*

* Sections 59-63 – conciliation of complaints.

[95] The privacy protections provided by the Bill apply to deceased individuals who has been dead for 30 years or less in the same way as if they had not been deceased.

[99] Declares that it is the intention of section 8 to alter or vary section 85 of the Constitution Act 1975.

[100] Allows regulations to be made to give effect to the purposes of the Act.

[101 and 102] Consequential amendments are made to the Freedom of Information Act 1982.

[103 and 104] Make amendments to the Health Services Act 1988.

[105] Amends the Health Services (Conciliation and Review) Act 1987.

[106] Amends the Infertility Treatment Act 1995 to clarify that confidentiality and access regimes under that Act apply over the provisions in the Bill. As in the public sector under the Freedom of Information Act 1982 a person may apply to a private sector organisation for access to their own records.

[107] Makes consequential amendments to the Information Privacy Act 2000. Schedule 2 of that Act relating to health information is repealed.

[108] Amends the Information Privacy Act 2000 to permit the Privacy Commissioner to refer complaints to the Health Services Commissioner.

[110] Amends the Magistrates' Court Act 1989 to ensure that the offence of failing to comply with a compliance notice is an indictable offence that is triable summarily.

[111 and 112] Make amendments to the Mental Health Act 1986.

[113 and 114] Make amendments to the Ombudsman Act 1973 to permit the Ombudsman to refer a complaint to the Health Services Commission and notify the complainant and the respondent in writing of the referral.

[115] Amends the Parliamentary Committees Act 1968 by inserting a new section 4D(a)(iiib) the effect of which will require the Scrutiny of Acts and Regulations Committee to report on any Bill introduced that either expressly or by implication unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2000.

[116] Amends the Subordinate Legislation Act 1994 by inserting a new section 21(1)(gb) the effect of which is to require the Regulation Review Subcommittee of the Scrutiny of Acts and Regulations Committee to report to the Parliament on any Statutory Rules that unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2000.

[117] Amends the Victorian Civil and Administrative Tribunal Act 1998 to allow the Tribunal jurisdiction in proceedings and reviews as introduced by the Bill.

The brief commentary on each of the 11 Health Privacy Principles is extracted from the Minister’s Second Reading Speech –

Principle 1 sets out the framework for collection of health information. It requires collection to be an accountable and transparent process. Organisations are generally required to obtain the individual's consent for collection or to be covered by one of the public interest grounds that permit collection.

Principle 2 regulates the use and disclosure of health information. In general, use or disclosure is permitted for the purpose for which the health information was collected or, otherwise, with the consent of the person to whom it relates.

Secondary use or disclosure is also permitted in cases where there is a strong public interest in doing so (for instance, where there is a serious threat to life or health, where disclosure is required by law, or for the purposes of research which is in the public interest and complies with guidelines developed by the Health Services Commissioner).

Principle 3 is about ensuring data quality. It requires health information to be accurate, complete, up to date and relevant to the functions of the organisation that holds the information.

Principle 4 sets out general requirements to ensure appropriate security and retention of data. It generally requires health information held by a health service provider to be stored for at least seven years subject to any specific legislation to the contrary. This reflects current good practice.

Principle 5 encourages transparency by requiring organisations to document clearly their policies on management of health information and to make those policies available to the public.

Principle 6 provides individuals with a right to access their health information and to make corrections to it, where necessary. This principle applies to health information held by the private sector, while the Freedom of Information Act will continue to apply to health information held by public sector organisations.

Limited grounds for refusal of access are set out in the Bill. If only part of the health information is covered by a legitimate ground for refusal, the organisation is required to provide the rest of the health information to the applicant.

Principle 7 imposes limits on the assignment of identifiers that are intended to uniquely identify individuals in relation to their health information. It also restricts the adoption, use or disclosure of identifiers assigned by a public sector organisation.

Principle 8 preserves, where lawful and practicable, the right of individuals to remain anonymous in transactions with an organisation.

Principle 9 puts certain limits on the flow of health information outside Victoria.

Principle 10 regulates what a health service provider must do with its stock of health records when the practice or business is sold, closed or amalgamated.

Principle 11 provides individuals with a right to have their health information that is held by one health service provider made available to other providers. Since the disclosure is from one health service provider to another, the grounds to refuse access that apply under part 5 and principle 6 do not apply.

The Bill concerns changes to the governance arrangements of community centres and amends the Health Services Act 1988 to provide for elected and appointed members of boards of community health centres.

The Committee notes the following comments from the Minister’s Second Reading Speech –

[Clauses]

[2] The provisions in the Bill come into operation on 1 April 2001.

[3] Substitutes new sections 46-51 to provide for the new board of management of community health centres consisting of between 7 and 9 members, of whom 4 or 5 shall be elected, and between 2 to 4, appointed by the Governor in Council on the nomination of the Minister.

The new sections deal with the terms and conditions of appointment, community elections to the boards; proceedings of the boards; the filling of casual vacancies; resignation and removal of members by the Governor in Council on the recommendation of the Minister; and the maintenance of electors rolls of eligible voters for a community health centre.

[4] Inserts a new regulation making power as new section 158(1)(oa) providing that regulations may be made concerning –

the conduct of elections for members of boards of community health centres including provisions for voting at those elections, the counting of the votes and the method of determining the next eligible candidate for the purpose of filling casual or extraordinary vacancies in the offices of members.

[5] Inserts a new section 230 providing for transitional arrangements. The board of a community health centre as constituted immediately before 1 April 2001 continues as the board of the centre until the next annual general meeting of the centre. A person holding office as a member of a board of a community health centre continues as a member of the board until the next annual general meeting unless he or she sooner resigns or is removed from office.

At the first annual general meeting of a community health centre held after 1 April 2001 the offices of all members of the board fall vacant. The resulting vacancies are then to be filled by the method introduced by the Bill.

The Minister must consult with the members of a board who were in office immediately before the annual general meeting before nominating a person as a board member to the Governor in Council for the purposes of appointing members to a board under the new arrangements.

[Clauses]

[2] The provisions in the Bill come into operation on the day after Royal Assent.

[5] Inserts new sections 71(2) and (2A) providing that where the Chief Commissioner or authorised officer reasonably believes that a member has committed an offence referred to in the First Schedule, they must not charge the member with the commission of a breach of discipline until they have consulted the Director of Public Prosecutions (DPP). Where a non First Schedule offence is involved they may consult the DPP before charging the member with the commission of a breach of discipline.

[6] Amends sections 86P, 86R and 86S to allow the Deputy Ombudsman or the Minister to refer to the DPP the question of whether or not criminal proceedings should be taken against a police member.

[8] Inserts a new section 91F(2A) to impose a 14 day limit to appeal against a decision to review a disciplinary or personnel-related decision.

[10] Inserts a new section 91MA providing for Police Board hearings to be held in public unless the Appeals Board is satisfied that the holding of the hearing or part of the hearing in private would facilitate the conduct of the proceeding or would otherwise be in the public interest.

New section 91MA(3) provides that if the Appeals Board considers it necessary to do so in the public interest, it may make an order prohibiting the reporting or other publication or disclosure of any hearing or of any information derived from the hearing, except by leave of, the Appeals Board.

The Committee notes the following comments from the Second Reading Speech –

The prospect of judicial review of a decision to close a hearing or suppress evidence will act as a disincentive to any overzealous use of these powers.

[11] Inserts a new section 91R(ca) to make it a contempt of the Board to contravene an order under section 91MA(3).

[12] Inserts a new section 91T to permit the Police Board a discretion to accept late appeals or applications for review or to extend other time limits.

Regulation making powers

[16] Substitutes a new section 130(1)(de) to clarify that fees and charges may be imposed for services provided by public servants in Victoria Police as well as police members. This includes fees to be prescribed to perform criminal checks.

[17] Inserts a new Schedule 1 which sets out the possible offences detected in a disciplinary investigation on which the Chief Commissioner must consult the DPP before laying any disciplinary charges under section 71(2) of the Act (see [5] above).

[Clauses]

[2] Other than section 3, the provisions in the Bill come into operation on Royal Assent. Section 3 is deemed to have come into operation on 1 July 2000.

Part 2 – First Home Owner Grant Act 2000

[3] Amends section 3 of the Act 2000 to correct an anomaly with regard to the definition of ‘permanent resident’ in the Act. The amendment will allow citizens of New Zealand to be eligible to apply under the scheme. The provision is retrospective to 1 July 2000, being the date the scheme commenced operation.

[4] Amends section 10(3) and inserts a new section 11(3) to tighten eligibility criteria under the scheme thus removing an unintended shortcoming.

Part 3 – Land Tax Act 1958

[5] Clarifies the application of the exemption under the Act applying to charitable purposes. A pro rata exemption applies to land used for a charitable purpose. Similarly land owned by a charity but used for a non-charitable purpose will not attract the exemption.

Part 4 – Pay-Roll Tax Act 1971

[6] Substitutes a new section 10(1)(k) to clarify the exemption from pay-roll for wages paid to apprentices.

Part 5 – Stamps Act 1958

[8] Substitutes new sections 137AK(4), (5) and (6) to impose on a motor dealer who does not lodge a return or lodges a late return, a penalty of an amount fixed by the Act.

Part 6 – Taxation Administration Act 1997

[11] Substitutes a new section 115 of the Act dealing with refunds of taxation on successful objection or appeal by the taxpayer to an assessment by the Commissioner. The proposed provision limits the refund to 3 years from the earlier of the date of decision, or the date of a written request for the decision which included certain particulars.

The Committee notes the following comments from the Second Reading Speech –

The amendments to the objections, appeals and refund provisions of the Taxation Administration Act 1997 are an important element in this Bill. They plug a potentially significant hole in the state's revenue base.

The proposed amendments are necessary to protect the revenue and on the grounds of equity. They demonstrate the government's commitment to responsible fiscal management and that it is prepared to take a strategic approach to the maintenance of the revenue laws.

The amendments contained in the Bill arise as a consequence of litigation between the Commissioner of State Revenue and the Drake group of companies. The litigation concerned the payment of payroll tax. It turned on the question of whether temporary staff on-hired to its clients by Drake were: either 'employees' of Drake and therefore liable for payroll tax; or 'independent contractors' under the relevant contract provisions of the Pay-roll Tax Act 1971.

The Commissioner was successful before the Court of Appeal, but the proceedings have brought to light an anomaly in the operation of the general refund provisions and the separate and distinct objections and appeals regime under the Taxation Administration Act.

Contrary to the prevailing understanding of the operation of the law by both the Commissioner and taxpayer representatives, the structure of the legislation would appear to result in a limited refund of three years where the Commissioner agrees to an application that tax wrongly paid should be refunded, but results in an unlimited refund if the Commissioner disagrees and the taxpayer is successful on objection or appeal.

This is because under the objections and appeals provisions, where a taxpayer has successfully objected or appealed, the Commissioner must refund any amount paid in excess of the legal liability.

Where the taxpayer has objected or appealed against an assessment the refund is limited to the excess paid under the assessment. However, where the taxpayer has appealed against a decision, no such limitation exists.

[13] Amends section 125 to provide that documents may be served by electronic means.

[14] Sets out in a new section 125A the circumstances when the service of a document is deemed to be effective for purposes of a taxation law.

[15] Inserts a new section 135(2) into the Act declaring that it is the intention of clauses 13(8), (9) and (10) in Schedule 1 as inserted by [16] of the Bill to alter or vary section 85 of the Constitution Act 1975.

[16] The new clauses 13(8), (9) and (10) of Schedule 1 provide –

(8) If –
(a) a taxpayer applied before 15 October 1993 for a refund of an amount paid or purportedly paid under a taxation law; and

(b) the Commissioner refused or failed to refund the amount; and

(c) the taxpayer did not commence proceedings in any court for the refund or recovery of the amount before 14 November 2000--

the taxpayer or any other person is not entitled, on or after 14 November 2000, to commence proceedings in any court for the refund or recovery of the amount or any part of it.

(9) If –
(a) a taxpayer applied before 15 October 1993 for a refund of an amount paid or purportedly paid under a taxation law; and

(b) the Commissioner refused to refund the amount; and

(c) the taxpayer lodged an objection to the refusal of the Commissioner to refund the amount; and

(d) the objection had not been determined by the Commissioner before 14 November 2000 –

the Commissioner is not entitled to determine the objection on or after 14 November 2000 and the taxpayer or any other person is not entitled, on or after 14 November 2000, to take any further action in respect of the objection or commence proceedings in any court for the refund or recovery of the amount or any part of it.

(10) If a person commenced proceedings on or after 14 November 2000 but before the day on which the State Taxation Acts (Further Miscellaneous Amendments) Act 2000 received the Royal Assent ("the commencement day"), being proceedings that the person would not have been entitled to commence because of sub-clause (8) or (9) had those sub-clauses been in operation at the time, the court must, as soon as practicable after the commencement day, dismiss those proceedings.

Clause 13(11) further provides that nothing in sub-clause (5)-(10) affects the rights of the parties in the proceedings in the Supreme Court between –

(a) Drake Personnel Limited and Others v. The Commissioner of State Revenue of the State of Victoria;
(b) Select Appointments Pty Ltd v. The Commissioner of State Revenue of the State of Victoria;
(c) MediHealth 2000 Pty Ltd v. The Commissioner of Pay-roll Tax for the State of Victoria

The Committee notes the following section 85 of the Constitution Act 1975 comments in the Second Reading Speech –

Clause 15 of the Bill indicates that it is the intention of proposed new clauses 13(8), (9) and (10) in Schedule 1 of the Taxation Administration Act, to be inserted by clause 16 of the Bill, to alter or vary section 85 of the Constitution Act. These provisions preclude a taxpayer from commencing proceedings in relation to refusals or failures by the commissioner to make refunds of tax paid or purportedly paid in relation to applications made by taxpayers before 15 October 1993.

15 October 1993 was the date on which a three-year limitation was inserted into the Limitation of Actions Act 1958.

The reason for this limitation of the jurisdiction of the Supreme Court is that it is necessary to prevent large windfall refunds of payroll tax in respect of longstanding matters, the extent of which is estimated to be approximately $30 million. Quite apart from the quantum of potential refunds, the amendments are necessary to prevent taxpayers opportunistically taking advantage of a technical loophole only recently exposed.

It would be grossly inequitable if certain taxpayers had the benefit of windfall gains when refunds made in the past had been limited in accordance with what was understood to be the settled law. Without these amendments, the SRO may be forced to reopen many matters potentially going back to the commencement of payroll tax in 1971.

This would impose a significant administrative burden that would ultimately fall on the community at large. Only by enacting these amendments will the anomalies be addressed. Further, they would restore the policy intention of amendments made in 1992, that taxpayers are limited to a refund of three years of tax overpaid.

It would be inequitable if in the past taxpayers had been limited to a three-year refund where the commissioner agreed with their claim, but, in the light of the anomaly, those with whom he had disagreed and who had successfully objected or appealed that decision, could now apply for a further (beyond the three-year limit) unlimited refund of all the tax overpaid.

Although these amendments have wider application than the agency context, a further point should be understood specific to the agency context. Taxation liability under agency arrangements is generally passed on to clients and incorporated into fees and charges met by them. It is extremely doubtful that windfall gains obtained through refunds of tax paid far back in time would ever reach the pockets of those clients of an agency who ultimately met that taxation liability.

The Bill provides that these amendments will have effect from today's date. This will prevent taxpayers from opportunistically exploiting the loophole potentially opened. A small number of taxpayers have served legal proceedings on the Commissioner in which the issues outlined here may arise.

In the Bill, these litigants have been specifically exempted from the application of these proposed amendments.

The Bill introduces the definition ‘domestic partner’ into various Acts to recognise the rights and liabilities of partners in domestic relationships irrespective of the gender of each partner. A person’s ‘partner’ is defined for the purposes of the amendments to mean either the person’s ‘spouse’ or ‘domestic partner’ and ‘Spouse’ is defined to mean a party to a marriage.

Two definitions of ‘domestic partner’ are used for the purposes of the amendments, depending on the Act that is being amended. In the general definition, ‘domestic partner’ of a person is defined to mean ‘a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender)’. This definition is used for amendments to Acts dealing with property related benefits (Schedule 1), compensation schemes (Schedule 2), superannuation schemes (Schedule 3) and some amendments to general legislation (Schedule 7).

[Clauses]

[2] The provisions in the Bill (including the items in a Schedule) come into operation on a day or days to be proclaimed. If a provision does not come into operation before 1 January 2002, it comes into operation on that day.

[3] Schedule 1 – Property related benefits
[4] Schedule 2 – Compensation schemes
[5] Schedule 3 – Superannuation schemes
[6] Schedule 4 – Health related legislation
[7] Schedule 5 – Criminal law legislation
[8] Schedule 6 – Consumer and business legislation
[9] Schedule 7 – General legislation.

The Acts amended by the schedules mainly consist of the insertion of definitions giving effect to the purposes of the Bill and consequential amendments arising from the insertion of these definitions.

spouse of a person means a person to whom the person is married.

* Used in different Acts as required in the circumstances.

Schedule 1 – Property Related Benefits

Administration and Probate Act 1958

The inserted definition for ‘domestic partner’ differs from the definitions in 1 and 2 above and provides –

‘domestic partner’ of a person who dies means a person who, although not married to the person –

(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(b) either –

(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or

(ii) is the parent of a child of the person who was under 18 years of age at the time of the person's death;

‘spouse’ of a person who dies means a person who was married to the person at the time of the person's death;

A new section 51A is inserted into this Act dealing with the distribution of an estate between spouse and domestic partner providing –

(1) If an intestate leaves both a spouse and a domestic partner, the entitlement to the partner's share of the intestate's residuary estate is to be determined as follows--

the partner's share of the residuary estate is to be distributed equally between the domestic partner and the spouse if the domestic partner had lived as the domestic partner of the intestate continuously for a period of less than 5 years immediately before the intestate's death;

(b) the domestic partner is exclusively entitled to the partner's share if the domestic partner had lived as the domestic partner of the intestate continuously for a period of 5 years or more immediately before the intestate's death.

Property Law Act 1958

The amendments will allow domestic partners (irrespective of the gender of the partners) who are living together or have lived together as a couple on a genuine domestic basis to access the property settlement scheme detailed in Part IX of the Property Law Act 1958, on the breakdown of their domestic relationship. The new provisions apply to domestic relationships already in existence before the commencement of the provisions but not to relationships that terminated prior to the commencement of these provisions.

Wills Act 1997

The Schedule inserts the following specific definitions in this Act –

‘domestic partner’ of a deceased person means a person to whom the deceased person was not married but with whom the deceased person was living at the date of death as a couple on a genuine domestic basis (irrespective of gender);

‘spouse’ of a deceased person means a person to whom the deceased person was married at the date of death;

Schedule 2 – Compensation Schemes

Transport Accident Act 1986

Schedule 3 – Superannuation schemes

Transport Superannuation Act 1988

Schedule 4 –Health Related Legislation

Mental Health Act 1986

Schedule 5 – Criminal Law Legislation

Victims of Crime Assistance Act 1996

Schedule 6 – Consumer and Business Legislation

Second-Hand Dealers and Pawnbrokers Act 1989

Schedule 7 – General Legislation

Guardianship and Administration Act 1986

The Committee makes no further comment.