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Thursday, 14 June 1984
Page: 3078


Senator HARRADINE(9.35) —The purpose of the Remuneration and Allowances Amendment Bill is to vary the rates of expenses of office allowances and electorate allowance determined by the Remuneration Tribunal and to implement the Tribunal's recommendations with respect to the salaries of the judiciary and offices of the President and members of the Inter-State Commission and for related purposes. We are faced with two very difficult circumstances, one of which, of course, is that the House of Representatives has packed up for the winter recess. I had distributed to honourable senators on 4 June a letter advising that the Bill was scheduled for debate in the Senate on 7 June, last Thursday, when the House of Representatives was still sitting.

At that stage, on 4 June, I distributed an amendment which is in the hands of all honourable senators. I said that the proposed amendment concerned the question of de factos of parliamentarians and advised senators that the Special Minister of State (Mr Young) had written to the Tribunal recommending a change in the provisions for overseas study allowances of members of parliament to give recognition to de facto relationships. On that occasion I made a response to the Remuneration Tribunal. It was circulated to honourable senators and it is dated 17 February 1984. However, I was advised last week that the Tribunal's determination on that matter will be made after the Parliament rises for the winter recess and therefore it could operate for two months prior to effective parliamentary scrutiny. Honourable senators will understand that determinations of the Remuneration Tribunal are laid on the table of both Houses of the Parliament and are subject to the disallowance procedures of both Houses. My advice from the Tribunal was that its determination would not be made until perhaps the end of this month and in those circumstances the proposed amendment becomes necessary if Parliament is to accept its responsibilities in respect of this important matter.

This matter is of considerable concern to the people of Australia. The letter that was written to the Remuneration Tribunal Chairman, Mr Justice D. L. Mahoney , by the Special Minister of State recommended a change in the provisions for overseas study allowances for members of parliament so as to give recognition to de facto relationships. I am opposed to the granting of a direct or indirect equality of status to de factos compared with married spouses in Tribunal determinations concerning the entitlements of members of parliament. Such attempts to grant equality, whether or not they carry with them an eligibility for financial subsidy by the taxpayer, involve a great matter of principle and strike at the existing legislative recognition of marriage. We, as legislators, do have a responsibility to uphold the law. Members of parliament have a further responsibility to give example in matters of principle underlying the laws which they pass. We have passed a number of laws in this Parliament relating to marriage. I quote from the Marriage Regulations Form 14A referred to in regulation 39A which states:

Marriage and family life have been basic to the strength of our society for a long time.

The Parliament, in the Family Law Act 1975, has placed great stress on their importance.

As I said, they are not my words; they are the words contained in the document which, under the Marriage Regulations, an authorised celebrant must give to persons intending marriage. The Parliament, in the Family Law Act, refers to:

The need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

And further on:

The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly whilst it is responsible for the care and education of dependents.

Under section 46 (1) of the Marriage Act we as legislators, insist that the authorised celebrant must, in the presence of witnesses, remind the couple of:

. . . the solemn and binding nature of the relationship into which you are now about to enter.

It is clear that marriage, as defined by legislation, is quite different from a de facto relationship. To point to the obvious, the de facto relationship is not solemnised by an authorised celebrant in the presence of witnesses, and by its nature is not a relationship which is intended and proclaimed to be entered into for life. It has been suggested by a number of people-the Special Minister of State made reference to these matters in his letter to the Tribunal-that provisions made for de factos in respect of social security, taxation and in certain areas covered by the Public Service Board affecting staff in the Department of Foreign Affairs are somehow relevant to this consideration; that is to say, the consideration of whether the study allowances for parliamentarians should be extended so as to include their de factos.

Nothing that I have said should be regarded as necessarily opposing the provisions for de factos in social security, taxation and certain areas covered by the Public Service Board. It could well be argued that these provisions are the tolerant and charitable gestures of society towards those who have not yet grasped the vision of beauty of marriage and its unique and essential value to the stability of the nation. However, Mr Young's proposal which was put to the Tribunal to allow de factos to accompany members of parliament overseas is an entirely different matter. It publicly demeans the institution of marriage. It strikes at its legislative recognition. It flies in the face of the responsibility of parliamentarians to give an example in matters of principle underpinning the laws which they pass through the Parliament. No national leader , no legislator, can logically support Mr Young's suggestion.

The granting of equality or the provision of a discretionary power for travel by de factos of members of parliament by the Tribunal would represent a major public development in this area and could have a far-reaching influence on the public perception of this subject and its treatment in other areas of Commonwealth and State laws. In fact, what Mr Young is asking the Tribunal to do is to play the role of legislative pace-setter, something akin to a controversial law reform commission but, in the Tribunal's case, with more direct power and without the usual public consultation and distribution of discussion papers, et cetera, which occur from time to time with the Australian Law Reform Commission and similar bodies.

For the Tribunal to acquiesce in Mr Young's proposal and to fashion the discretionary power which enables equality to be granted and, at the same time, to include this within a determination covering other unrelated matters, would be to deny parliamentarians a practical opportunity of rejecting this specific contentious decision. I am not sure whether the Tribunal will bring down a determination in respect of this issue so that the matter can be determined adequately by the Parliament; in other words, that it can be disallowed as such and not affect other matters such as, for example, increased stamp allowance or this, that or the other. It should not be confused with those sorts of issues. I am therefore in a most difficult situation tonight in that, if I amend this piece of legislation as it has been distributed, whilst requiring the Tribunal not to determine the matter in relation to a de facto spouse of a member of the Parliament or of a Minister of State, it would, of course, have the effect of holding up the other matters in this legislation which affect not only members of the Parliament, but also certain judges and, I think, senior public servants. It should be stressed-I do stress it-that I am not talking about the de factos of anybody else except those of members of parliament because of our responsibility to uphold the principles underlying the laws that we pass.


Senator Colston —So it is all right for a judge to have a de facto, is it?


Senator HARRADINE —Judges, of course, are not responsible for passing the laws which we are responsible for passing and particularly in respect of the laws that I previously mentioned. As I have pointed out to the Senate, this is a matter of great public importance. I am concerned that the Government has chosen to have this matter debated this week when the House of Representatives is not meeting. As has been mentioned, this matter was scheduled for debate last Thursday when the House of Representatives was meeting. Were I to move in the Committee stage of this Remuneration and Allowances Amendment Bill the amendment that I am proposing, and were it to be carried, of course, either the House of Representatives would have to be brought back-the Government has clearly indicated this will not happen-or the other provisions of this legislation would have to wait for consideration until the House of Representatives returns in late August. Under those circumstances, this would be of considerable concern and possibly an injustice to the others who are affected by this legislation. I believe that the Government has not acted properly in this matter. It was aware of the fact that I desired to move this amendment. It may not have been aware that I was aware that the Tribunal's determination on this matter would not be made until after Parliament had risen.

I again repeat the concern that the Parliament will not have an opportunity to consider this matter until August. Under all of the circumstances, recognising the dilemma in which the Parliament has been placed by the Government's action and recognising that if I were successful in having this legislation amended it would not pass into law and other people would be dramatically affected- particularly those people who are not parliamentarians who are affected by this measure in respect of their allowances-I find it necessary to state that reluctantly I will not be able to move that amendment at the Committee stage. I foreshadow, however, that I intend to examine carefully the determination when it comes forward from the Tribunal. Should that determination seek to be a social pace-setter in this very important area, of course the remedy for disallowance that we have available to us will be exercised.