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Thursday, 30 April 1987
Page: 2255


Mrs SULLIVAN(11.44) —In my opening comments in this debate on the Social Security Amendment Bill 1987 I want to refer to two matters which the honourable member for Dobell (Mr Lee) has just mentioned. At one stage he told a story about people who receive superannuation. He referred to something that some people do and he called them `immoral lurk merchants'. The other part of his speech to which I want to refer was his very fleeting reference to the definition of a spouse in the Social Security Act. On the first point he said that he would urge the Minister for Social Security (Mr Howe) to make these immoral lurk merchants get their snouts out of the trough. I wonder whether the honourable member for Dobell will also urge the Minister to look at the position of seasonal workers who can earn, over a period in a year, a very high income and then go on unemployment benefit. Those benefits may be paid for by people whose total annual incomes are much lower than those of the seasonal workers but because they receive that income on a regular fortnightly basis throughout the year they do not qualify for unemployment benefit. Quite a few people come into that category. I see the honourable member for Dobell is indicating his agreement with what I am saying and I am pleased about that.

He also made the statement that he would like the Minister to look at the definition of spouse in the Act but he did not indicate at all what he meant. Today I will spend some time talking about the definition of `spouse' in the Social Security Act as it is affected by this amending Bill. I looked at the term `de facto' because something was in the amending Bill that affects the de facto situation. I had not looked at the definition of `spouse', so in response to the comments of the honourable member for Dobell I looked at it. This is what the Social Security Act 1947 gives as the definition of `spouse':

``Spouse'' includes a de facto spouse . . .

Apparently it assumes that we know what a spouse is. However, `de facto spouse' is defined, which brings me to the point on which I want to spend a little time.

The Social Security Amendment Bill does a number of technical things as well as effecting some Budget decisions. On other occasions I have made speeches on certain aspects of those decisions which I shall not recanvass today. On reading this amending Bill we find that, in the changes to Schedule arrangements, at the very beginning of Schedule 1 it is stated:

ADDITIONAL AMENDMENTS OF THE SOCIAL SECURITY ACT 1947 PART 1-AMENDMENTS TO COME INTO OPERATION UPON ROYAL ASSENT SUBSECTION 6 (1) (DEFINITION OF ``DE FACTO SPOUSE''):

Insert ``and includes a person who, but for a law of a State or Territory prohibiting sexual intercourse between the person and another person by reason only of the age of either person, would be such a person . . .

Those words are to be inserted in the Bill after the definition of de facto spouse. The definition of de facto spouse, on the carriage of this amending Bill, will be:

. . . a person who is living with another person of the opposite sex as the spouse of that other person on a bona fide domestic basis although not legally married to that other person; and includes a person who, but for a law of a State or Territory prohibiting sexual intercourse between the person and another person by reason only of the age of either person, would be such a person.

To put it in other words, this Bill allows a benefit to be paid to someone who is committing a criminal offence under a State or Territory law. State laws in this country define the age of consent and make it a criminal, not a civil, offence to have sexual intercourse with someone who is under the age of consent. This amendment to the definition of de facto spouse sweeps aside the criminal nature of the act and will actually pay a benefit to the person who is committing the offence.

Enough is enough as far as I am concerned. Sometimes there are good reasons why people decide not to get married and to live in de facto relationships. One of them may be because of difficulties with getting a divorce. I have been inclined, in debates on extending `spouse' to the de facto situation, to be tolerant. But it is absolutely scandalous that in a Schedule to the Social Security Amendment Bill, without a word about it in the Minister's second reading speech, we have this particular shift in morality. For the sake of clarifying a position that has arisen between the Department of Social Security and the Administrative Appeals Tribunal, a decision has been taken to sweep aside any consideration that might arise because of State laws, and in the process to make a total mockery of the Commonwealth Marriage Act. Enough is enough.

As I understand it, this situation has arisen due to a difficulty in a particular case in South Australia. My reference is the Social Security Reporter of February 1986. The difficulty arose in South Australia where the age of consent is 17; generally in Australia it is 16. The Department of Social Security previously refused to pay a spouse benefit to someone receiving a social security benefit-let us say the unemployment benefit-where that de facto spouse was under the age of consent. Somebody in South Australia took a case to the Administrative Appeals Tribunal and that practice of the Department of Social Security was overturned. I refer to the article in the February 1986 Social Security Reporter. It states:

The DSS relied on two written opinions given by the Commonwealth Attorney-General's Department. Between them, these opinions argued that the DSS could not accept that a woman was living with a man as his wife where the woman was below the legal age of consent in the relevant state. This was, the opinions said, because the DSS could not administer the social security system so as to allow any person to benefit from the commission of a criminal offence and because the word `woman' in s. 106 (1) should be read as referring to `an adult female human being'.

A partial reference is given in the article to the reasons of the AAT for overturning this practice. The article states:

The Tribunal noted that, under the Marriage Act 1976, a female person (subject to some restrictions) had the capacity to marry and become a wife from the age of 14 years. It followed, the AAT said-

and it quotes the AAT-

that `a female person has the capacity and may become a `dependent female' and may live together with a male person as his wife (i.e., as if she was his wife), although not legally married to him, from the age of 14 years. The legal impediments do not prevent the existence of a de facto relationship, or of a `bona fide domestic relationship' of unmarried husband and wife, because those impediments are related simply to consent to marry and to the ceremony of marriage. Therefore, because the female person has the capacity (marriage ability) to become a legally married wife or spouse of a male person from the age of 14 years, she also has the capacity to become a dependent female ``as his wife''.'

What all of that means is that a lot of gloss is being put on a situation. The article encloses in brackets the words `subject to some restrictions' when referring to the Marriage Act. I want to tell the House what those restrictions are. In essence, without going into all the technicalities of the Act, they are as follows: Under the Marriage Act the marriageable age of a male in Australia is 18 years and of a female it is 16 years. For a minor-that is, anyone under 18, male or female-to marry, he or she must have the written consent of his or her parents. In the case of a male aged 16 or 17, he must have the consent of his parents plus the authorisation of a judge or magistrate. In the case of a female aged 14 or 15, she must have the consent of her parents plus the authorisation of a judge or magistrate. A female aged 16 or 17-who is of marriageable age by then-nevertheless, under the Marriage Act, must have the written consent of her parents.

The AAT's words `subject to some restrictions' tell one nothing. The restrictions are very real. They are spelt out in some detail under the Marriage Act, which one would think is the measure of this country's attitude towards marriage. One would think that those restrictions are there for a reason. The Marriage Act does allow the setting aside of the age of consent, but only under very strict circumstances and in the context of marriage. It is another thing altogether to set it aside in a Schedule for the sake of enabling a 14-year-old to set up house with someone of the opposite sex. I make no apology for my attitude to that situation. One would not find a woman from the Leichhardt Women's Collective, the Women's Electoral Lobby, the Women's Action Alliance or Women Who Want to be Women who advocates the lowering of the age of consent for girls in this country. There has been some recent discussion about it and it brought an outcry from all areas. There is no push for it. There is certainly no consensus that it is okay at the age of 14, excepting when parents and a judge or magistrate have said: `Yes, under the conditions of marriage'.

Why do we even bother with the Marriage Act? We bother with it because it enshrines standards that are accepted in this country, and it enshrines protection, most importantly, for minors. Those provisions are there to protect young people, sometimes from themselves but just as often from someone who is considerably older than them, who can take advantage of them because of the little they know of life, and who can walk away any time they like from the consequences of what they have done to that young person's life under a de facto situation.

Enough is enough. The Government could have gone the other way. It could have included an amendment to the definition of `de facto spouse' to exclude from receipt of spouse benefits someone who was in contravention of State criminal law. It could have helped Social Security fix its position in that way. It could have enshrined the practice that Social Security had followed, until someone went to the Administrative Appeals Tribunal because of a quirk of a difference between the South Australian legislation and the generally accepted Australian standard of 16 years. It decided to go the other way. It cannot hide behind statements like, `We had to do something because we had this difficulty'. It could have gone down the path of what the practice had been and shored up the previous practice of the Department.

This subject is not mentioned in the Minister's second reading speech-not surprisingly, I suppose. When I opened the Bill at that point and read the first words of the Schedule-they leap off the page-I thought I had better look at the explanatory memorandum to see whether I was reading it correctly before I researched it further. I did so. This is what the explanatory memorandum states about Schedule 1 of the amendments:

SCHEDULE 1

See notes to clause 46.

That is all the explanation there is of Schedule 1. I turned to the notes on clause 46, which state:

Clause 46: Additional amendments

This clause would provide that the Principal Act would be amended as indicated in Schedule 1 to the amending Act. Schedule 1 is divided into Parts 1 and 2.

By clause 2 (13), the amendments contained in Part 1 would come into operation on the day on which the amending Act receives the Royal Assent while, by clause 2 (8), the amendments contained in Part 2 would come into operation on 1 July 1987.

That is as much light as is shed anywhere on Schedule 1 to the amending Bill. I think it is outrageous. It appears to have passed by the notice of most people. I do not think it will pass by much longer. Maybe the Government should think, between now and when this Bill becomes eligible for royal assent, about what it will do with regard to that Schedule to the Bill. Whilst I may have been the first person to raise the subject, I am sure I will not be the last.

In the little time that is left to me I want to raise two other matters. They are matters that are referred to in the Minister's second reading speech and have been referred to during the debate. Two paragraphs of the Minister's second reading speech relate to the privacy provisions. I will be brief because my time is running out. The Minister stated:

The Department necessarily collects considerable personal information about the financial and domestic circumstances of claimants in order to assess continuing eligibility. The privacy of these individuals should not be abused.

I point this out to those people who are still saying that the Australia Card would be okay because one should not worry about these things if one has nothing to hide. Opposition to the Australia Card is not a question of having something to hide; it is a question of what could be revealed that is nobody's business except one's own, and maybe that of the Department of Social Security by virtue of one's needing to be a social security recipient. In these privacy clauses the Government acknowledges that it is quite dangerous to an individual's well-being if those sorts of details are known by many people. I, along with my colleagues, remain utterly unconvinced that there is the necessary protection in the ID card for that sort of aspect. I wish that people who keep saying, `You would not be opposed to the ID card unless you had something to hide' could understand the difference between hiding something and wanting to preserve one's privacy in areas in which, quite rightly, one is entitled to privacy.

The other matter I want to raise in relation to fraud is that of follow-up letters going out to social security recipients. I have said in a previous debate in the presence of the Minister that I have no objection to follow-up. It is reasonable from time to time to make sure that social security recipients are still eligible. However, the application of that follow-up to the elderly with respect to the assets test is really a very painful process. It would not exist if the assets test did not exist.

We are all very well aware of how much upset was caused to age pensioners, including part pensioners, when they received a notice saying that if they had assets in excess of the allowable amount for either single or married rate according to their circumstances, they needed to give details, but that if this did not apply to them they need not send the form back. Many elderly people who were not affected were very distressed by that notice. They knew that they were not affected but they were still distressed at being asked. They said: `Why, at this stage of our lives, are we getting these please explain letters from the Department of Social Security?'. That distress passed in due course because so many age pensioners were not affected by the assets test. They thought it was over for good. Now they will be subject to regular follow-up.

Most of these people, probably nearly all of them, will still not be affected in any way by the assets test; but they are on the `please explain' treadmill simply because they are elderly and do not have enough income to keep body and soul together. At that age they feel very vulnerable and uncertain and hate being made to feel that they have done something wrong and that, that is why they are being asked the questions. That might be a quite incorrect interpretation by them but the facts are, and we all know it, that it causes that sort of distress. Whilst, as I said, I have no difficulty in principle with follow-up from time to time to check that people are eligible for certain benefits, this distress would not be caused to elderly people if it were not for the wretched assets test. The sooner this Government is out of office and we have the chance to repeal it, the better.