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Friday, 24 August 1984
Page: 325


Senator HARRADINE(9.08) — by leave-I move:

That the Bill be now read a second time.

This Bill has been brought about because of the deliberate attempt by the Special Minister of State (Mr Young) to manoeuvre the Remuneration Tribunal into a position of rubber-stamping a very significant pace-setting decision by the Minister and the Federal Cabinet. I refer to the efforts of the Minister to clothe de facto relationships with the same status as legal marriage in the granting of certain travel requisites. A spokesman for Mr Young put it this way:

Soon after we got into Government a member of the Government backbenches came to Mr Young-because he is the responsible Minister-and said he (the backbencher) was going to be travelling overseas.

He brought up the matter of de facto relationships and asked if he could use his overseas air travel entitlement for his de facto partner.

He felt this would be quite proper in the same way as married couples do . . .

The Minister had a look at the position under Commonwealth law.

By contrast Mr Young's predecessor in the relevant portfolio, Mr Kevin Newman, also received similar requests but rejected them. No doubt Mr Young on his inspection of the relevant legislation, discovered that this particular entitlement and the detail of its implementation rested-under the Remuneration Tribunals Act-with the Remuneration Tribunal. Furthermore, he would have discovered that the existing determination-Determination No. 12 of 1983- permitted conversion of the overseas study travel credit towards 'the cost of the fares only of a spouse accompanying the senator or member'. The Determination referred to 'spouse' not 'de facto spouse' or 'nominee' and so he would have been unable to accede to the backbencher's request. As the spokesman for Mr Young said, this all took place soon after the change of Government in March 1983.

On 4 July 1983 Mr Young wrote to Mr Justice Mahoney, the Chairman of the Remuneration Tribunal. Mr Young stated:

My dear Judge,

I am writing about single and separated Senators and Members, and refer in particular to their inability to draw on their overseas study allowance in order to be accompanied by their nominees. As you would know, married members may draw on their overseas allowance to enable their spouses to accompany them.

I believe it would be appropriate to extend the provisions to some, but not necessarily all, nominees. I have in mind cases where a member has a de facto relationship with his/her nominee. It seems to me that in these circumstances the conditions for drawing on the overseas study allowance should be the same as those for married members . . .

Mr Young went on to claim that 'de facto relationships are now recognised in many areas' and cited-presumably as sufficient precedents-two provisions affecting officers of the Australian Public Service. He asked that the Tribunal give this matter consideration at the time of its next review. It is important to bear in mind that at this stage the public and the Parliament were quite unaware of what was going on. I suppose it might be said that the existence of the Minister's submission and its substance could have been discovered by anyone who visited the office of the Remuneration Tribunal and requested permission to inspect the folder of submissions received in connection with its review of the entitlements of Ministers, office holders, and members. However, to be completely up to date, a member of the public would have to make weekly inspections to find out what new submissions had been received. Ten days after writing this letter to the Remuneration Tribunal Mr Young resigned from the Ministry over the Combe-Ivanov matter.

During the period until 21 January 1984 when Mr Young was reinstated the Minister for Aviation, Mr Kim Beazley Jr, was the Special Minister of State. In that capacity, Mr Beazley Jr, on 23 December 1983, wrote a letter, marked ' PERSONAL', to Mr Justice Mahoney, Chairman of the Remuneration Tribunal. Before quoting from that letter I should mention that I do not know what was the significance of his marking the letter 'PERSONAL' because it, as with other submissions, quite properly ended up in the file available for inspection by members of the public. Mr Beazley's move does, however, lend itself to the interpretation that he and the Government recognised the de facto subject as a sensitive one and-writing as he was only two days before Christmas-was not going to facilitate public controversy about this move.

In his letter to Mr Justice Mahoney, Mr Beazley Jr said:

The Government has recently decided that, for Ministers and Office-holders, the present spouse entitlement to travel in Australia and overseas be extended to a nominee in cases where a particular single or separated Minister or Office- holder can demonstrate a bona fide domestic relationship.

The Government has also decided that when travelling overseas on official duty, for example as members of a delegation or fact-finding mission, Senators and Members may downgrade the first class ticket, as for spouse, in order to be accompanied by a nominee with whom the member can demonstrate a bona fide relationship.

He went on to say:

I understand that my predecessor, the Hon. M. J. Young, MP-

presumably referring to the letter which I quoted earlier-

asked the Tribunal to consider changing the provisions for overseas study allowance to give recognition to de facto relationships. In view of the Government's decision I also recommend that course.

Again, nothing was yet public knowledge but it would appear that Cabinet had taken an omnibus decision to extend recognition to de factos in a variety of travel situations. Most other areas-domestic and overseas travel by Ministers and office holders, delegations and fact finding missions overseas-were capable of unilateral decision by the Prime Minister or Cabinet, but they were stuck on the question of the overseas study travel entitlement: This came within the province of the Remuneration Tribunal. Christmas 1983 passed with the general public and most members of parliament being completely ignorant of what had been going on. The first that I and others learnt of these developments was in early February 1984 when an article, referring to Mr Young's original submission to the Tribunal, appeared in the Sydney Morning Herald. I can only assume that an enterprising journalist had made a visit to the Remuneration Tribunal and had discovered the Young letter in the file of submissions. Additional information, including the substance of the letter from Mr Kim Beazley Jr, came to light in an article in the Sunday Telegraph of 5 February, entitled 'MPs Win Perks For Lovers'. I suppose therefore the Government is to be congratulated for keeping secret for eight months such a significant and contentious decision but it should have known that the public would eventually find out. Or was the intention to have the Remuneration Tribunal rubber-stamp the move and then point to it-as an independent semi-judicial body-as the ostensible pace-setter in the process?

On 7 and 11 January 1984 advertisements had appeared in all major daily newspapers inviting submissions from the public to the Remuneration Tribunal. The closing date was 17 February 1984. Honourable senators will also recall having received a personal invitation from the Tribunal to make submissions. Note that the public did not become aware of the Government's moves about de factos until 4 and 5 February. There was little time for anyone to do anything. However, on 17 February 1984 I responded to the Tribunal's invitation to make a submission and in my letter to Mr Justice Mahoney said:

I am opposed to the granting of a direct or indirect equality of status to de factos, compared with married spouses, in your Tribunal's 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 matter of great principle and strike at the existing legislative recognition of marriage.

Legislators have a responsibility to uphold the law. Members of Parliament have a further responsibility to give an example in matters of principle underlying the laws which they pass through Parliament . . .

I then referred to the words contained in the document which, under the Marriage Act Regulation 39 (5A), an authorised celebrant must give to persons intending marriage. The document 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 has placed great stress on their importance.

I referred to what Parliament had endorsed in the Family Law Act, when it talks of:

. . . 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-

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

I referred also to section 46 (1) of the Marriage Act where the Parliament insists 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.

Noting the references by Mr Young to the two precedents which he had cited in his letter of 4 July 1983, I said:

. . . nothing that I have said should be regarded as necessarily opposing these provisions.

It could well be argued that they are the tolerant and charitable gestures of society towards those who have not yet grasped the vision and beauty of marriage and its unique and essential value to the stability of the nation.

I suppose it was this latter reference-which I repeated again in the Senate in June of this year-that prompted Senator Gareth Evans's scornful reference to my vision splendid of marriage. If that is so, I do not resile from it. I only wish that people like Senator Evans possessed a few visions splendid of their own, rather than relentlessly subjecting the community to social engineering experiments.

I alerted the Tribunal that Mr Young was inviting it to play the role of legislative pace setter and to acquiesce in his proposal or to fashion a 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 was mindful, of course, of Parliament's power under the Act only to reject, not amend, a determination by the Tribunal. I invited the Tribunal either to reject Mr Young's proposal or, if it was not prepared to do that, to frame its proposals on this matter in a separate determination dealing exclusively with this subject.

The determinations from the Tribunal had not been presented to the Government, or tabled in Parliament, prior to our adjournment on 15 June but on the eve of the adjournment-on 14 June-the Senate debated the Remuneration and Allowances Amendment Bill. That Bill had been scheduled for debate in the previous week when the House of Representatives was also sitting. On 4 June I had circulated to honourable senators a proposed amendment to the Bill which would have prevented the Tribunal from adjudicating on this subject. But when the House rose on 7 June, it left me and the Senate in the position that, were I to proceed with the amendment, and had the implementation of the Bill been delayed- because the Government had no intention of recalling the House to consider any Senate amendments-innocent beneficiaries from the provisions of the Remuneration and Allowances Amendment Bill would have suffered.

I therefore did not proceed with my proposed amendment but Senator Evans did present what I assume was his considered defence of the Government's proposal. I will refer to that later. On 29 June the Remuneration Tribunal forwarded its determinations to the Special Minister of State, Mr Young. These were released by the Minister on 16 July under cover of a brief media release in which he stated that the Government had accepted the major findings of the Tribunal's 1984 review. There was no mention in the Minister's statement of what the Tribunal had decided on the submission about MPs' de factos. However, in the introduction to the report the Tribunal made mention of the Government's proposal and said:

The Tribunal received submissions expressing opposition to, or lack of support for, the proposal from the Conditions Committees of the Federal Parliamentary Liberal and National Parties, three senators and members and a number of organisations and members of the public . . .

I interpose here and state that an examination of all the submissions from the public reveals that the overwhelming majority of these submissions dealt with the de facto question and were strongly opposed to the proposal. The Tribunal continued:

We have decided that the government decision in 1983 to allow an approved nominee to accompany a Minister when travelling overseas should be extended to senators and members but that the cost of such travel should be met from the existing entitlement.

What did the Tribunal actually do? Its summary in the introductory remarks tells only part of the story. In the first place, the Tribunal did not act on my suggestion to deal with this proposal from the Government in a separate determination. We find this contentious decision included as section 9 of Determination No. 18 of 1984 which, among other things, deals with charter aircraft, drive-yourself-vehicles, excess luggage, life gold passes, telephone services, stamp allowances, and so on. The Tribunal has, in effect, said to the Parliament: 'We know that you can only reject a determination in its entirety. If you are so concerned about this new provision, let's see if you will knock out all the other unrelated goodies we have granted you in the other sections of the determination.'

Secondly, the Tribunal has gone further than what I understood the Government to be seeking-namely, the ability to convert the credit for the payment of the fares of a de facto. If one reads section 9.2 (v) carefully one will realise that the Tribunal has permitted an additional conversion of the credit to cover the 'accommodation and subsistence costs' incurred by the senator, or member, spouse 'or nominee as defined' up to a maximum of one third of the cost of fares . The Tribunal stated:

The 'nominee as defined' means 'a person with whom a senator or member has established a bona fide stable domestic relationship'.

The de factos, and whoever else may qualify under that peculiarly-worded definition, will not simply be able to share in the fares conversion. Taxpayers' funds will pay, to a limited extent, for their accommodation and subsistence- presumably, with their parliamentary partner.

Before dealing with the specific provisions of the Bill-let me say that I am calling the bluff of the Tribunal and the Government because the Bill seeks to permit a direct vote of the Parliament on this contentious matter-I wish to point out that once the proposal became widely known there was widespread public opposition to the move to equate MPs' lawful spouses with de factos. The Catholic bishops of Australia criticised the move. The Anglican Bishop of Brisbane, Bishop John Reid, said:

It is completely unacceptable to have Federal Parliamentarians parading their de facto relationships and we strongly oppose any financial benefits for such relationships.

I, and, I am sure, many other senators and members of the House of Representatives, have received letters from numerous church congregations and many ordinary members of the public. There have been scathing editorials in some newspapers which will do more to contribute to the denigration of this Parliament and its legislators than any minor disturbance and name calling in this chamber or the other place.

We did not originate this move. It originated from Mr Young and the Government. Why should we share in the odium it has generated? It is ironical that one can quote the words of Mr Kim Beazley Sr in opposition to this proposal. He is reported as saying:

(The Commonwealth) should hesitate a long time before further belittling marriage, in this case the marriage of Federal legislators, with the proposal to ask the taxpayer to finance the travel of people who are not spouses and who have undertaken no obligation such as the obligation of marriage.

Do I detect in the final sentence of the letter from Mr Kim Beazley Jr of 23 December 1983 to the Tribunal, namely, 'In view of the Government's decision I also recommend that course', a slight disclaimer of his personal endorsement? Mr Kim Beazley Sr is absolutely correct in his reference to the absence of an obligation in a de facto relationship. This is one of the fundamental characteristics which distinguish a marriage from a de facto relationship. It has been very ably dealt with in a paper by Justice Sir Murray McInerney delivered on 21 August 1982, and I quote:

I have read one paper on this subject by an author who started with the grievance that de factos were required to 'forfeit the rights of married people' . De factos are not required to forfeit anything. They have elected to live together outside marriage by virtue of which alone they would have acquired those rights. They have in many cases elected-deliberately-not to acquire the status and more significantly not to undertake the duties and responsibilities inherent in that status. Very often that election has been made precisely because the party is not prepared to subject himself or herself to any legal obligation in respect of the incidents of the proposed cohabitation.

By facilitating this conscious rejection of obligations we are deliberately denigrating the vast majority of couples who accept their obligations by entering into a marriage.

Sir Murray McInerney talked about those who have deliberately chosen not to marry. According to a letter which Mr Young's senior private secretary sent to Dr Parker, Secretary of the Queensland Council of Churches-and which is on the public access file at the Tribunal-Mr Young had in mind a particular class of de factos. I quote:

. . . where a single or separated member . . . has not married because of personal preference, or legal or social circumstances . . .

The only 'legal circumstance' I can envisage is that the MP or de facto is already legally married to someone else! In that case it is not only a rejection of marriage but also an inability to be married again. It was the waving of statistical 'wands' which the Attorney-General used, on 14 June in this chamber, to justify the proposal. He said:

The reality of the matter is that de facto relationships, defined one way or another, but most commonly as bona fide domestic relationships are recognised not just in odd bits and pieces of social security, income tax or Public Service legislation. On the quick review that my Department has done, they are recognised in at least 48 Acts of the Commonwealth Parliament, not to mention innumerable pieces of legislation at State level.

I thought that I would check out the Attorney-General's claim so I asked the Parliamentary Library to instigate a computer search using what I assume is the same data base as that used by the Attorney-General's Department. The keywords it used were 'de facto spouse' and 'permanent and bona fide domestic basis'. The Library search revealed references not in 48 Acts of the Commonwealth Parliament , but only 28. It could be, of course, that the keywords used by the Department were different from those used by the Parliamentary Library.

Whatever the correct figure is, I maintain that these references fall into my original description of the 'tolerant and charitable gestures', or more likely, are designed to ensure that cohabiting unmarried couples are not placed at an advantage in relation to legal couples, for example, in pension benefits. They do not represent a recognition of a fundamental equality of status. And most importantly, the key item of Commonwealth legislation in this area is the Marriage Act and there-rather than finding an equality of status-one finds a deliberate attempt to assert the supremacy of marriage.

Let me give just one example of the basket of references on which Senator Gareth Evans's case rests. The computer search which I instigated threw up a reference to the words 'permanent and bona fide domestic basis' in the Seamen's Compensation Act 1911-1973. In the definition of 'member of the family' it refers to all the relatives that one might usually expect to find in such a definition. It also refers to:

. . . or any woman who for not less than three years immediately prior to his death or incapacity was wholly or mainly maintained by the seaman and who, although not legally married to him, lived with him as his wife on a permanent bona fide domestic basis and who, at the date of his death or incapacity, is maintaining one or more children under sixteen years of age or is not less than fifty years of age.

That is a very particular and circumscribed situation and the charity of the legislation rests more on the care of children than the existence of the de facto relationship. In no way can we jump from the existence of concessions of that nature to the endorsement of an unqualified privilege as expressed in the Government's proposal about de factos of members of parliament.

There was some additional reliance by Senator Evans on statistics-this time, his assertion that: 'the New South Wales figures for 1971-76 indicate something of a four-fold increase'. I assume, in the context of his remarks, that the increase was in cohabitation. Again, I state that marriage is the preferred and the promoted situation-preferred and promoted by the community and by the principal legislation. But Senator Evans destroyed his own argument later by admitting:

. . . there is evidence that a very significant proportion of de facto relationships these days, perhaps more than previously, are a prelude to either marriage or remarriage.

But is this a reason for granting an equality of status? Do we pay the age pension to a person who is 50 years of age on the grounds that he is not far off the age for eligibility, that he has done well to reach 50 years of age, and that with a bit of luck-bearing in mind the actuarial figures on life expectancy -he will eventually become an age pensioner? Do we pay family allowance to all senior girls in school on the ground that they are very likely one day to become mothers? There are a lot of things in life that are a prelude to something else. Standing for election to parliament can often be a prelude to becoming a member of parliament. But there is many a slip between the cup and the lip.

I come to one of the most dangerous assertions made by Senator Evans. he said:

There is a further point that it has been recognised by this Parliament . . . by the passage of the Sex Discrimination Act that there should not be discrimination in the provision of public goods and services and so on the grounds of marital status, which includes its negative the absence of a formal marital status.

There is no definition of 'goods' in the sex discrimination legislation but there is a definition of 'services'. It includes services 'relating to entertainment, recreation or refreshment'. Perhaps this is what the Attorney- General had in mind!

Disregarding the flippancy, there is a further category of services-that is, ' services relating to transport or travel'. I assume it is this, in conjunction with section 26-the administration of Commonwealth laws and programs-on which the Attorney-General relies. Is the Attorney-General asserting that, if any Commonwealth Minister, department, authority or instrumentality confers an entitlement or privilege on a person in respect of that person's wife or husband as the case may be, the Sex Discrimination Act requires as a matter of law that the same entitlement or privilege be extended to a person in respect of his or her so-called 'de facto spouse', even from the first day of their cohabitation? Is the Attorney-General asserting that where a private employer in the Australian Capital Territory, as a matter of policy, pays the fare of the lawful spouse of an employee who accompanies the employee travelling overseas in the course of employment, that employer is under a legal obligation by virtue of the Sex Discrimination Act to pay the fare of a de facto to enable the de facto to accompany the employee overseas?

There are three other points which should be made about this argument which, I note, has been utilised as a belated back stop in defence of the Government's proposal. First, the Tribunal's determinations are dated 29 June. By a proclamation published in the Commonwealth of Australia Gazette on 6 July, 1 August was fixed as the date on which the Act was to come into operation. Strictly speaking, at the time of its determination there was no Commonwealth law in existence which required the Tribunal to have regard for sex discrimination.

Secondly, during the very truncated debate in this chamber-during which the legislation was guillotined through-I do not recall any mention of the application of the Act to the negatives of things spelt out in the Act.

This is a new concept to me. I would assume that the negative of the formal marital status is its absence, but surely that does not imply that all people not in a formal marital situation are de factos. Is that the new way we must now interpret the legislation? And thirdly, which is the most important point, even if there were any substance in the Attorney-General's claim, it is not unusual to find two items of Commonwealth legislation which might be alleged to be inconsistent in some regard. Whatever interpretations of the sex discrimination legislation might be dredged up, I categorically reject the assertion that this Parliament is unable to declare its refusal to grant an equality of status to de factos as compared with lawfully married spouses. I also have the strongest suspicion that should Senator Evans fail to have his argument adopted that the sex discrimination legislation requires this form of favourable treatment for de factos he will then pull some other rabbit out of his hat. Bearing in mind that the Sex Discrimination Bill rests in part on the United Nations convention, my attention was caught by a draft document in which it is proposed that Senator Evans refer the de facto subject to the Law Reform Commission for report in the context of the Australian Capital Territory's community law reform program. The document which is numbered 2803/0384 and which was tabled on 9 May, has Senator Evans stating:

Having Regard To . . . (c) the provisions of Articles 23, 24 and 26 of the International Covenant on Civil and Political Rights . . .

I have looked at those articles and I cannot see where they deal with de factos in any shape or form. Is this another hidden interpretation awaiting discovery and employment by the social engineers hell bent on radically transforming Australian society?

Finally, let me briefly deal with the drafting details of this Bill. Quite simply, it removes from 9.2 (iv) the definition of 'nominee' and deletes also the four subsequent appearances of that word. Honourable senators will appreciate that my Bill in no way affects the opportunity for spouses to share in the overseas travel provisions. It should also be noted that the determination, which this Bill seeks to amend, confines the beneficiaries to spouses and nominees, but only to a certain class of nominees, as defined. The issue is now clearly before this Parliament. I have no joy in forcing some of my Senate colleagues into what might be an embarrassing situation for them, but it is not of my making. The proposal originated with Mr Young and the Government. There is no reference in the Tribunal's introductory remarks to the proposal having the support of any other people who made submissions. There is no record in the public file of any senator requesting this provision. Rest assured that if my Bill is defeated, we will witness an overnight transformation where privileges appropriate to marriage will be extended to de factos in a variety of situations not dreamt of. This Bill seeks to overturn the actions taken by the Tribunal at the behest of the Government. Those actions publicly demean the institution of marriage, strike at its legislative recognition and fly in the face of the responsibility of parliamentarians to give an example in matters of principle underpinning the laws which they pass through parliament. No national leader, no legislator can logically support such actions. We are voting on a matter of principle and the ramifications of how we cast our vote will have an effect long after we have passed from this scene.

Debate (on motion by Senator Gietzelt) adjourned.