Lawlink NSW: 16. Other Legislation

16.1 In this Report we have examined the major issues concerning the legal regulation of de facto relationships in New South Wales. Thus we have examined financial adjustment between de facto partners; succession on death, compensation for fatal accidents; protection against domestic violence; and custody and maintenance of children. We have now however, attempted to analyse every area of law in which the recognition of de facto relationships may prove an issue. The range of possible issues is virtually limitless since we cannot anticipate every area of human activity that might be subject to legal regulation. As legislation (or other forms of rules) are introduced to deal with novel questions, such as the regulation of artificial insemination and other aspects of the new biotechnology, it will often be necessary to consider whether the new measure should extend to de facto relationships and, if so, on what basis. This can and, in our view, should be done in accordance with the principles discussed in this Report.

16.2 While we do not purport to consider all possible legal issues concerning de facto relationships, there are several matters to which we briefly direct attention in this Chapter. These matters were mentioned by the New South Wales Anti-Discrimination Board in its 1978 report on Discrimination in Legislation, ¹ to which we referred in Chapter 5. In that report the Board identified numerous State enactments which in its view, unjustifiably discriminated on the ground of marital status, a term defined to include the status of “being in cohabitation otherwise than in marriage, with a person of the opposite sex”. ² As noted in paragraph 5.31, the Board took the view that all State legislation affecting the parties to a marriage should be amended to apply also to the parties to a de facto relationship. On this basis the Board recommended amendments to a large number of Acts, including some that do not raise any questions of general significance. We have given our reasons in Chapter 5 for rejecting the approach of the Board, which seeks to equate marriages and de facto relationships for all legal purposes. However, the Board s report performs a valuable function in identifying issues that may warrant attention either by us or by those responsible for the administration of particular enactments.

16.3 Elsewhere in this Report we have examined some of the legislation criticised by the Anti-Discrimination Board as discriminatory. These included the following.

We now refer to other legislation which raises questions concerning de facto relationships.

16.4 Section 407 of the Crimes Act 1900, provides, in effect that in criminal proceedings the spouse of an accused person may not be compelled against his or her will to give evidence. The section does not extend to de facto partners. De facto partners may therefore be compelled by the prosecution to give evidence in a trial involving their partner. The Anti-Discrimination Board recommended extending the protection provided by section 407 to de facto partners so that a person would not be a compellable witness in criminal proceedings against his or her de facto partner. ⁴

16.5 In our Issues Paper we raised for discussion the question whether the rule of non-compellability embodied in section 407 should be extended to de facto partners. ⁵ We also referred to our Discussion Paper on Competence and Compellability, which was published in 1980 in the course of our review of the law of evidence. ⁶ In that Discussion Paper, we tentatively suggested that a spouse of the accused should, in general continue to be a non-compellable witness, but that there should be an exception in cases of domestic violence and the court should have a discretion to require a married person to give evidence against his or her spouse where “the interests of justice outweigh the importance of respecting the bond of marriage”. ⁷ In the Discussion Paper, doubts were expressed as to the wisdom of extending the principle of non-compellability to de facto partners. ⁸

16.6 Since the publication of our Issues Paper there have been two significant developments. First, the Crimes Act, 1900, has been amended by the insertion of section 407AA, which makes a married person a compellable witness for the prosecution where his or her spouse is charged with a domestic violence offence. ⁹ The definition of “husband” and “wife” for the purposes of the section includes a de facto partner. The section permits a compellable witness to apply to a court to be excused from giving evidence for the prosecution. The court may excuse the witness if it is satisfied that the application is made freely and that having regard to the value of the potential evidence and the seriousness of the charge, among other factors, the witness should be excused. In respect of domestic violence offences, then de facto partners and married persons are equally compellable, and may be excused on the same grounds.

16.7 The second development is that the Australian Law Reform Commission has published a Research Paper on Competence and Compellability of Witnesses in the course of its review of the law of evidence. ¹⁰ The Paper (which does not purport to express the views of the Commission) puts forward suggestions for reform. The Paper suggests that the general rule should be that all witnesses are competent and compellable. However, where the prosecution seeks to compel the spouse of the accused to give evidence, the court should have a discretion to excuse the witness. In exercising its discretion the Paper suggests that the court should have regard to a number of factors, some relating to the value of the potential evidence, others to the likely effects on the relationship if the witness is compelled to testify. ¹¹ The Paper contends that these principles should apply also to de facto partners and to parents and children of the accused. ¹²

16.8 The Paper gives two reasons supporting limits on the principle of compellability of spouses, and the application of those limits to de facto partners. ¹³ They are:

On the other hand consideration must be given to the danger that important evidence will not be heard or, less likely, that the parties will enter into a de facto relationship in order to ensure that evidence is not given In addition account must be taken of the uncertainty and delay which would be associated with criminal trials if courts have a wide discretion to excuse particular witnesses from giving evidence. ¹⁴

16.9 We have some sympathy with the tentative conclusions reached in the Australian Law Reform Commission’s Research Paper. However, we have two reasons for thinking it inappropriate to make any recommendations in this Report.

In our view, the matter is best left for consideration in the light of the final recommendations on this matter by the Australian Law Reform Commission.

16.10 Under section 11 of the Evidence Act 1898, neither a husband nor a wife can be compelled to disclose communications made between them during marriage, although each is competent (that is, permitted) to give evidence of such communications voluntarily. The reason for this privilege is said to be the desirability of “promoting the utmost candour and confidence in matrimonial relations.” ¹⁵ The Anti-Discrimination Board recommended that the privilege applying to marital communications should be extended to de facto partners. ¹⁶

16.11 There is now a discernible trend in the common law world to limit or abolish the privilege against disclosure of marital communications. In England, for example, it has been abolished in civil proceedings ¹⁷ and its abolition has been proposed for criminal proceedings. ¹⁸ The Law Reform Committee, in arguing the case for abolition in civil proceedings, contended that

In New South Wales, the privilege extends both to communicator and recipient, while in Victoria only the recipient is not compellable to divulge the communication. ²⁰

16.12 In these circumstances, we think that no recommendation should be made to extend the privilege in respect of marital communications to de facto partners until a decision is made as to the future of the privilege itself. We understand that a recommendation on this matter is likely to be made by the Australian Law Reform Commission in its report on Evidence.

the provisions of the Act and any other enactment relating to the recovery of possession or the control of rents applicable to the premises shalt during the period of separation or desertion apply as if the wife were the sole tenant. The Anti-Discrimination Board recommended that the section be amended to apply equally to the husband of a female tenant and to the de facto partner of a tenant. ²¹

16.14 There are difficulties with this approach It has been held that the section does not apply to a widow or a divorcee, since in neither case is there “an existing relationship of husband and wife and an existing state of desertion or separation.” ²² It might be considered strange to extend the benefits of the section to a de facto partner, but not to a widow or divorcee. Moreover, the concept of desertion in relation to husband and wife has been outmoded since the enactment of the Family Law Act and should not be retained if section 2B were to be amended. Again, broadening the coverage of section 2B would have economic consequences, since it would extend the class of persons entitled to take advantage of legislation dealing with rent control and security of tenure. There are therefore a number of issues involved in a review of section 2B in addition to possible extension of the section to de facto partners. These issues should be considered in the context of a general review of the law of landlord and tenant We make no recommendations for amending section 2B. ²³

16.15 The Anti-Discrimination Board drew attention to the terms of section 108(4) of the Mental Health Act 1958, which provides for notice to be given to the nearest relative of a patient before surgical or other treatment can be carried out The phrase “nearest relative” does not specifically include a de facto partner of the patient and the Board recommended that the section should be amended to include such a person. ²⁴ Since the Boards report was published new mental health legislation has been prepared. The Mental Health Bill 1983, has been tabled in Parliament to allow for public comment.

16.16 Part IX of the 1983 Bill relates to the carrying out of medical or therapeutic treatment on a patient It provides that where, for example, surgical treatment is proposed for a patient incapable of consenting to the operation the medical superintendent must do everything that is reasonably practicable to give notice to the patient s “nearest relative” of the intention to seek consent to the operation from an authorised officer or the Mental Health Review Tribunal. ²⁵ The person notified may put forward objections to the proposed surgical treatment but does not necessarily have the right to veto the treatment. The “nearest relative” means the patient s spouse or, where the patient is unmarried or separated from his or her spouse, the patient s parents. If the patient has neither a spouse nor parents, or if their identity or whereabouts cannot be ascertained, the nearest relative is

prior to his or her admission. ²⁶ It may be that the de facto partner of the patient would receive notification of the proposed treatment as the person “who had the care of” the patient. But this would occur only where the patient had no surviving parents. Consequently, the Bill would not ensure that a de facto partner receives notification of the proposed treatment even assuming the de facto partner had the care of the patient.

16.17 In our view, this aspect of the Mental Health Bill 1983 is capable of working serious injustice’ The purpose of the notification provisions is to inform the person who is likely to have the closest relationship with a patient about proposed treatment and to provide an Opportunity for that person to object to that treatment. The de facto partner of a patient is as likely to be that person and to have the closest interest in the proposed treatment, as is a spouse where the partners are married. Accordingly, such a person should have the same opportunity to be notified and to agree or object to the treatment We appreciate that there may be cases where the authorities do not know of the de facto relationship, but all that is proposed by the Bill is that they must make reasonable efforts to give notice. The inclusion of a de facto partner within the definition of “nearest relative” should not cause any practical difficulties. We therefore recommend that the term “nearest relative”, as defined in Part IX of the Mental Health Bill, 1983, should include the de facto partner of the patient. ²⁷

16.18 Section 8 of the Insurance Act 1902, provides protection for the spouse and children who are named as beneficiaries in a life insurance policy taken out by a married person on his or her life. The effect of the section is to establish a statutory trust in favour of the spouse and children, so that money under the policy does not form part of the estate of the policy holder, and is not available to creditors. The section is substantially identical with section 94 of the Life Insurance Act 1945 (Cth). This Act regulates all life insurance in Australia other than State life insurance within the limits of the State in question. ²⁸ We consider that. the protection accorded by section 8 of the Insurance Act 1902, should be extended to the de facto partner of a policy holder, because the considerations which justify the statutory trust in favour of a spouse also justify a trust in favour of a surviving de facto partner. However, we think that this step should be taken jointly by the Commonwealth and the State, since it is clearly desirable that the legislation regulating life insurance should be uniform as between State insurance and insurance generally. We therefore recommend that New South Wales raise with the Commonwealth the desirability of amending legislation governing statutory trusts in respect of life insurance, with a view to providing the surviving de facto partner of a deceased policy holder with similar protection to that which is presently provided for spouses. ²⁹

16.19 Elsewhere in this Report we have referred to the Anti-Discrimination Boards report, Discrimination in Superannuation (paragraphs 4.45-4.47). We noted that our terms of reference require us to take this report into account in our own review of the law affecting de facto relationships. We also noted that the Boards recommendations for inclusion of defacto partners as spouse beneficiaries under the State Superannuation Fund have been under consideration for some time by the Superannuation Advisory Committee. The Anti-Discrimination Boards report dealt with the position of de facto partners as part of its general review of discrimination in superannuation As the report recognised, the extension of benefits to any new class of people raises complex issues. Thus, for example, in the area of death benefits (payments made from a superannuation fund on the death of a member, or former member who was in receipt of a pension), the Board considered a number of ways of removing discrimination on the grounds of sex and marital status. These included the automatic payment of benefits to any person in a specified relationship (including a de facto relationship) with the deceased, or alternatively, the payment of benefits to any such person who was, in addition, financially dependent on the deceased. ³⁰

16.20 We do not think it is appropriate at this stage to attempt our own assessment of the alternatives currently under consideration. Actuarial and administrative considerations are relevant in determining how to avoid injustice, and we think it best that current discussions proceed without our intervention. It may be that the area will be referred to us for consideration at a later stage.

16.21 The Anti-Discrimination Board identified a number of other provisions which in its view, discriminated on the ground of marital status and warranted amendment. ³¹ Some of the provisions identified by the Board have the effect of treating de facto partners more favourably than married persons. These include the following:

16.22 Other legislation referred to by the Anti-Discrimination Board appears to treat de facto partners less favourably than married persons. This legislation includes the following:

16.23 None of these provisions, in our view, raises policy issues of substantial importance. The extension of each Act to de facto partners is best considered by those responsible for its administration. We have considered the various provisions, and have formed views which in some cases differ both as to interpretation and conclusions from the approach of the Anti-Discrimination Board. Since no points of general significance are involved we do not set out our views in this Report, but will communicate them separately to the Attorney General.

1. NSW Anti-Discrimination Board, Discrimination in Legislation (1978), prepared pursuant to s.121 of the Anti- Discrimination Act 1977.

3. Similar amendments were made to the Workmen’s Compensation (Broken Hill) Act, 1920. The Board recommended virtually identical amendments to s.8(2B) of the Workers’ Compensation (Dust Diseases) Act, 1942. Curiously enough these have not been enacted. We can see no reason why they should not be adopted.

5. NSW Law Reform Commission, De Facto Relationships (Issues Paper, 1981). Paras.4.23, 5.36.

6. NSW Law Reform Commission, Competence and Compellability (Discussion Paper, 1980).

9. Crimes Act, 1900, s.407AA, inserted by the Crimes (Domestic Violence) Amendment Act 1982.

10. Australian Law Reform Commission, Competence and Compellability of Witnesses (Research Paper No.5, 1981).

15. J.A. Gobbo, D. Byrne & J.D. Heydom Cross on Evidence (2nd Aust ed., 1979), pp.272-273.

18. Criminal Law Revision Committee, Evidence (General) Eleventh Report (1972), pp.105-106.

19. Law Reform Committee, Privilege in Civil Proceedings (Sixteenth Report, Cmnd. 3472, 1967), p.18.

22. Jeanes v. Drake (1964) 82 WN (Pt.1) NSW 437, at p.441; Abigail Pty. Ltd. v. Rudder (1967) 86 WN (Pt.1) NSW 76.

23. The Anti-Discrimination Board also raised a question concerning the definition of a “protected person” for the purpose of s.99 of the Landlord and Tenant (Amendment) Act- 1948. We do not think the section raises any general question of principle warranting review independently of the Act as a whole.

27. The Mental Health Bill 1983 employs the concept of “nearest relative”, “near relative” and “relative” for other purposes. See eg cll.4(1), 75, 76, 103, 133, 139. We have confined our recommendations to Part IX of the Bill but consideration should also be given to defining these terms, when used elsewhere in the legislation to include the de facto partner of a patient.

29. See generally, Australian Law Reform Commission, Insurance Contracts (ALRC 20, 1982).

30. Anti-Discrimination Board, Discrimination in Superannuation (1978), pp.44-47.

32. The Anti-Discrimination Board’s report actually referred to the Broken Hill Water and Sewerage Amendment Act, 1971, which contains an identical provision: s.87A(1). See also Hunter District Water, Sewerage and Drainage Act, 1938, s.104A(1); Irrigation Area (Reduction of Rents) Act, 1974, s.3(2).