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Wednesday, 29 October 1997
Page: 8403


Senator STOTT DESPOJA(6.40 p.m.) —The Student and Youth Assistance (Sex Discrimination Amendment) Bill 1997 seeks to grant a permanent exemption for Abstudy and Austudy from the Sex Discrimination Act 1984. I note that the exemption specifically applies to the treatment of students in defacto relationships and their definition as either independent or dependent. Currently student assistance schemes discriminate on the grounds of marital status in that the schemes differentiate between legally married and defacto couples.

The Australian Democrats oppose the government's proposal for a permanent exemption from the Sex Discrimination Act. We believe that this is yet another deferral, another move, to avoid the task of finding a solution to this particular problem. We do not believe the proposal for a permanent exemption is acceptable and/or necessary. I take up Senator Carr's point relating to the report that was promised to this place and other senators. I acknowledge that it was faxed as soon as it was available, as I understand it, to my electorate office. So we have had an opportunity, albeit brief, to skim those pages. It is very important in the context of this debate.

I note the most recent exemption that was granted to DEETYA by HREOC. I will quote from the correspondence that was addressed to the first assistant secretary of the youth, students and social policy division on 29 November last year. In granting the exemption, HREOC gave a specific proviso. The precondition was the following:

That Minister for Employment, Education, Training and Youth Affairs, Senator the Hon Amanda Vanstone, give an undertaking that a report will be made to the HREOC prior to the expiry of the proposed exemption—

It is due to finish on 31 December this year—

on long term solutions to address the marital status discrimination within student assistance schemes (existing and proposed). This reporting would need to take into account the outcomes of the "Review of the Notions of Dependency" being conducted by the Minister for Social Security, Senator the Hon Jocelyn Newman.

Clearly, this particular report is key to this entire debate because it was the basis on which the previous exemption was granted.

The Democrats, like the opposition, will be moving an amendment. Originally we thought that a six-year exemption period would be appropriate. But I have decided that the most appropriate date would be 1 January 1999. That would be the maximum period of time that an exemption should be obtained or sought because it basically allows for the introduction and the operation of the common youth allowance legislation—something we will be debating in this place some time soon, I have no doubt. That is expected to start in July of next year. Assuming that something goes wrong, or it does not start on the date anticipated, I think 1 January 1999 is an appropriate time for which the exemption should be sought. I hope to see that amendment circulated shortly.

That is the basis on which the Democrats would be prepared to grant an exemption. We think that it is time to have a short period. For that reason, we do not believe that Senator Carr's amendment is appropriate, simply because three years is too long. Governments—Labor governments and the current government—have avoided finding solutions to this problem for too long. If you have a period that is at the latest January 1999, it takes into account proposed changes to student and other assistance schemes.

My understanding is that in that report and in the Commonwealth youth allowance legislation this anomaly, this discrimination, should be cleared up. If that is the case, I commend the government on actually solving that, but I look forward to the minister's remarks in response.

From 1976 to 1982 de facto couples were able to be defined as independent if they fulfilled certain criteria, including two statutory declarations, preferably from their parents. I note that that criteria was removed by the then Fraser government for new but not continuing students. That was back in 1981. In 1984, when the Sex Discrimination Act was enacted, section 40 of the SDA granted either a two-year exemption for prior legislation directly inconsistent with the act in order that those acts could be properly aligned with the SDA; or a permanent exemption for certain legislation.

The Student and Youth Assistance Amendment Act 1973 was not included on the permanent list. Instead, a two-year exemption was granted with a view to rectifying the discriminatory aspects of the act. In 1991 student assistance schemes were given a further three-year exemption. This exemption was granted despite the government's intention yet again to find a solution to eradicate the discrimination.

I note that the minister, the Hon. Robert Brown, stated during the second reading speech of the Sex Discrimination Amendment Bill 1991 in the House of Representatives:

An exemption . . . is to be given to student assistance schemes provided for in the Student Assistance Act 1973. The criteria for means tests and rates of payment for these student assistance schemes are discriminatory on the basis of marital status. The Government has decided to undertake a review of the discriminatory provisions of these schemes over the next three years and has limited the period of exemption accordingly.

So after this expired Abstudy and Austudy became subject to a series of rolling exemptions through the system of administrative exemptions provided through the Human Rights and Equal Opportunity Commission.

In 1995, as some may recall, the ALP government proposed that a solution to address the discrimination was not to allow married couples to be granted independent Austudy. That proposal was rejected by the Senate and by the Australian Democrats. I mentioned earlier the most recent exemption to be granted—that is, in November last year—by the Human Rights and Equal Opportunity Commission and the proviso on which that exemption was based, and that was that a review was being conducted.

So it is obvious certainly to the Australian Democrats and I hope others in this chamber that yet another exemption is not an acceptable solution to address marital discrimination in student assistance schemes. At no point over the past 13 years was it proposed that student assistance schemes be permanently exempted from the SDA, although there were such opportunities, I believe, in 1984 and 1991. However, the coalition government has decided to pursue this option—that is, of seeking a permanent exemption.

I note that the bill before us has passed through the House of Representatives without any member of parliament citing the particular report. We may be complaining, Senator Carr and Senator Margetts, that we have not seen a copy of this report but what about those members of the lower house who had to debate and make a decision on this bill with no knowledge of that report? It certainly does highlight the scrutiny and the nature of the Senate.

But when this was raised in the House the Parliamentary Secretary to the Minister for Employment, Education, Training and Youth Affairs, Mr Abbott, did brush aside this concern—that is, that no report had been cited or read—and he claimed that the government was preparing the report and it would be entirely consistent with the legislation that is before us today.

How can this be possible when the government has not been consistent in its own treatment of de facto couples? De facto status will enable a young person to establish independence for the purposes of the proposed common youth allowance, yet students will not be able to similarly establish their independence in this manner. So it seems a bit unusual and somewhat unfair to treat students in a different manner from that of young people generally.

It would be highly unlikely that the provisions made under the common youth allowance legislation to avoid `rorting the system' could not be readily applied to student assistance schemes as appropriate data matching and fraud checks are already in place.

Debate interrupted.