The NSW Government has introduced the Miscellaneous Acts Amendment (Marriages) Bill 2018 (NSW) (‘the Bill’) on 23 May 2018. The Bill aims to update terms and definitions related to marriage,
parentage and change of sex across a number of acts and instruments.
The Bill proposes to amend a number of legislative instruments. Some of the proposed
amendments are for the purpose of:
- Updating the terminology of the definitions of 'spouse', 'relatives', and ‘dependants’
in acts such as the Anti-Discrimination Act 1977 (NSW), the Assisted Reproductive Technology Act 2007 (NSW), and the Crimes Act 1900 (NSW);
- Updating legislative instruments such as the Building Professionals Act 2005 (NSW) and the Property (Relationships) Act 1984 (NSW) to remove redundant references to spouses and de facto partners being of either
the same or opposite sex;
- Amending various legislation in order to update terms relating to parentage and change
- Amending the Births, Deaths and Marriages Registration Act 1995 (NSW) to allow persons who change their sex and get married to have the change of
sex recorded on the Births, Deaths and Marriages Register;
- Amending the Evidence Act 1995 (NSW) to ensure that the exception to the hearsay rule with respect to reputation
concerning whether a man and a woman cohabiting were married to each other applies
equally to any two people.
In his second reading speech, Minister for Resources, Minister for Energy and Utilities,
and Minister for the Arts Don Harwin stated that due to the flow-on effects of the
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), there was a need for consequential amendments. For more information on the
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), please read TimeBase's earlier article.
Mr Harwin noted that the amendments were technical in nature:
“These consequential amendments are predominantly technical in nature. Many of the
amendments are designed to ensure that terms related to marriage and married people
are capable of encompassing married couples regardless of sex through the use of gender-inclusive
or genderneutral language—for example, terms such as "spouse", "surviving spouse"
and "parent". Existing references to "wife", "husband", "widow", "widower", "mother"
and "father" will generally be retained. The policy intent behind the amendments is
to accommodate all married and widowed people, including individuals who do not identify
with those existing terms. It is not intended to change rights, obligations or entitlements
beyond the changes conveyed by the amendments to the Commonwealth Marriage Act.”
On amendments to the hearsay rule contained in the Evidence Act 1995 (NSW), Mr Harwin noted:
“Schedule 4 makes two minor amendments to the Evidence Act 1995, as follows: Firstly, the exception to the hearsay rule at section 73 includes evidence
of reputation as to relationships. Currently, the hearsay rule does not apply to evidence
of reputation concerning whether a man and a woman cohabiting at a particular time
were married to each other at that time. The bill extends this exception to evidence
of reputation concerning any two people who were cohabiting. Secondly, the bill inserts
a transitional provision to ensure the amendment applies to evidence adduced immediately
after commencement in all proceedings, including those already on foot.”
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