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Tuesday, 9 October 1984
Page: 1466


Senator HARRADINE(4.17) —Clause 19 extends the spouse rebate to de factos. I have no amendment to move, by reason of the fact that I understand that there is apparently an attitude on the part of the Opposition that this is somehow a Budget measure and that although the Opposition disagrees with the proposal, it believes that it is a Budget proposal and, as such, it wants the Government to live with it. A number of people expressed their views in regard to this matter in the second reading debate. I wish to express my views about the matter now, in order particularly to get some clarification from the Minister for Resources and Energy as to what guidelines are to be used by the Australian Taxation Office in administering this measure.

To situate my remarks in their proper context, I wish to refer to a letter sent by the Anglican Archbishop of Sydney, the Most Reverend Dr Donald Robinson, to the Prime Minister (Mr Hawke), with copies to various other people, including all of the leaders of the various parties in the Parliament and to me. Dr Robinson says:

I write to express the growing concern of many within the Diocese of Sydney, which is reflected across the Anglican Church in Australia, concerning moves by legislation and regulation which confuse de facto relationships with marriage.

Leaving aside, for the purpose of this letter, the moral and spiritual issues, it needs to be clearly recognised that marriage is a public contract entered into by the parties; to it attach certain privileges and responsibilities. The community, through Parliament in the Marriage Act and the Family Law Act, has articulated the concept that marriage and family life are basic to the strength of society. By contrast de facto relationships are in essence private affairs and are often temporary, where the people concerned have chosen to avoid the legal commitment. Consequently, they should not be accorded privileges by the community.

It is not in the interest of any to erode this distinction by sentimental or pseudo non-discriminatory pragmatic appeals that 'everybody should be treated alike'. For example, it may well be appropriate for a wife who has carried more than her share of family responsibilities while her husband served the community in the public arena, to receive some special consideration in terms of travelling allowance or opportunity to accompany her husband on a study trip. The giving of such privilege is in accord with the overall good of society-to uphold and support the marriage relationship. No such argument can attach to a de facto liaison. . . .

The letter goes on to talk about the situation of the spouses of parliamentarians which, of course, anticipates some of the debate which is likely to take place on Thursday of this week. The Archbishop continues:

I believe that this is an issue of social policy and that it is important that, in such matters, parliamentarians should be seen to be upholding basic principles of what is best for the future of our society, and not appearing to succumb to pragmatic or self-regarding convenience. I hope therefore that you will give a lead in rejecting the extension of privilege to those in de facto relationships as if they were married.

Appended to the Archbishop's letter is a copy of a statement by Archbishop Keith Rayner of Adelaide, who argues the matter in some depth. I seek leave to have incorporated in Hansard that statement, printed in the Adelaide Church Guardian in September 1984 and entitled 'Marriage and de facto relationships'.

Leave granted.

The document read as follows-

Marriage and de facto relationships

Certain decisions by government agencies and statutory authorities have recently given rise to widespread public concern. First there was the decision that politicians travelling on official business overseas might use public funds for defacto partners to accompany them. Then there was the decision of the A.B.C . that employees living in homosexual relationships would enjoy the same benefits in areas such as bereavement leave as were enjoyed by married employees in relation to their spouses. Apparently heterosexual couples living in de facto relationships already enjoy these benefits.

These changes are part of a climate of though, reinforced by recent legislation , which is opposed to any form of discrimination, there must be no discrimination of the ground of marriage or ''sexual preference'' (as it is termed)! In financial terms, what is at stake is probably quite small. But two important matters of principle are involved.

The first is that these principles signify a very real change in official attitudes to marriage. In saying this, I am not thinking of the spiritual and sacramental understanding of marriage as held by Christians. I am thinking of the way the law, and society at large, regard marriage.

The thing that has always distinguished marriage from defacto relationships ( whether heterosexual or homosexual) in our society is that it is an open, publicly recognised relationship which is subject to objective, legal tests. This is why the law has always closely regulated both marriage and divorce. It is important for a whole host of reasons that the community knows who is related to whom in this most intimate of human relationships. Marriage is not a private thing between two people alone. It has a public face, and the stability of marriage is crucial to the stability and ordering of society.

In the past this has been well recognised and universally understood. All kinds of implications follow from it in the life of the community. Once we give de facto relationships the same legal standing as married relationships, marriage itself is threatened and family life and society are disordered. It is one thing for the norm to be broken unofficially; it is quite another thing to say officially that the normal and the abnormal are the same.

The change probably began with the recognition of the needs of deserted defacto spouses and their children. Often they were left in real financial distress, and most of us would agree that compassion demands that they receive support from public funds. It is fallacious and dangerous to extend this principle of compassionate assistance to a point where de facto partners are regarded as having the same status in all respects as married partners.

The other principle at stake relates to the matter of discrimination. In general, most of us would agree that discrimination on grounds of sex, race or religion is wrong. But carried to extremes the anti-discrimination principle can lead to ridiculous conclusions. There are circumstances in life where we are bound to exercise discrimination. Is a school to be required to accept as a teacher a person whose moral conduct is a bad example to students? Is a church to be required to employ an atheist simply because he has the best technical qualifications for the position? If anti-discrimination laws require us to make no distinction in cases where principles or morality or belief are involved, then our freedom to make moral judgments is seriously curtailed.

I repeat: in principle, discrimination on grounds of sex, race or colour is wrong. But if the principle is applied in doctrinaire fashion, it is in danger of falling into disrepute.

As Archbishop Robinson said, this is a matter of social policy. Archbishop Rayner also put it clearly when he stated, talking about certain principles:

The first is that these principles signify a very real change in official attitudes to marriage. In saying this, I am not thinking of the spiritual and sacramental understanding of marriage as held by Christians. I am thinking of the way the law, and society at large, regard marriage.

That is the essential point. We are talking about fundamental values. Those values are of unquestionable good, not only to the Christian ethic but also to human society and to human moral values. I speak to this matter on that level; that is, the recognition by society of the importance of the married state. Concern is being expressed within the community at attempts to undermine that recognition by placing de facto relationships on the same basis as bona fide married relationships. However, as the archbishops have said, there are occasions, when of course persons who are in a de facto relationship, who should always be treated with understanding and tolerance, should also be granted some of the entitlements that go with the married state, but for different reasons. I instance the case of when de facto spouses are in charge of children. Quite frankly, society should have regard to such cases and should provide those spouses with certain benefits which normally accrue to those responsible for the upbringing of children.

I point out to the Committee an oddity in this matter. I refer to the second reading speech of the Minister which, of course, is an extrinsic aid in the interpretation of the law in this area. The Minister, in his second reading speech, said:

The Bill will also implement the budget proposal that, with effect from 1 July 1984, entitlement to the income tax rebate for a dependent spouse will be extended to persons living in a de facto relationship. For these purposes a de facto relationship is to be defined as a man and a woman living together as husband and wife on a bona fide domestic basis although not legally married to each other.

As a reason for saying that, the Minister said:

Recognition of a de facto relationship will benefit couples who, for some time, have been treated for social security purposes on the same basis as those legally married.

Under the freedom of information legislation I obtained the basis of the Department of Social Security for the recognition of de facto relationships. It is very important to be aware of that if we are to have proper consideration here and now as to what interpretation, what guidelines, the Australian Taxation Office is to use. The Minister said that the decision was made on this basis:

Recognition of a de facto relationship will benefit couples who, for some time, have been treated for social security purposes of the same basis as those legally married.

What is the situation with regard to the Department of Social Security provisions? Basically those provisions fall within two categories. One category includes de facto relationships as defined in the interpretation section of section 18 of the legislation. I read from an official document dated 12 March 1965 headed 'De-facto Relationships. Pensions and Allowances.', issued by the Department of Social Security:

Where a claimant for, or a person in receipt of, an age or invalid pension has formed a de-facto relationship which has been in existence for at least three years, the position is, of course, covered by the definitions 'dependent female' and 'wife' respectively in section 18 of the Act.

That is in respect of a de facto relationship which has existed for a period of three years or more. We then come to de facto relationships which have existed for less than three years. In respect of those relationships the Department says :

Where a relationship has not existed for at least three years, the Department adopts the attitude that the parties should not be placed in a better position than a married couple.

That matter ought to be considered by the Committee because the Minister says in his second reading speech 'We are extending the entitlement that is now available to legally married spouses to cover de facto spouses' and is then calling on the Department of Social Security provisions in support of that extension.


Senator Coleman —It must say more than that in relation to the determinations, Senator, surely.


Senator HARRADINE —I am happy to table this whole document.


Senator Coleman —I just think the Social Security Act goes a bit further than you have said.


Senator HARRADINE —No, this is the material that is now available under the freedom of information legislation. I am perfectly happy to table it. In effect, the original reason of the Department of Social Security for recognising de facto relationships was that if two people were living together in a de facto relationship and were not regarded as a married couple for the purposes of receiving pensions they would each receive a single pension. They would be better off than the legally married couple. In fact, that is the raison d'etre for recognition of de factos by the Social Security Department. Over a period that has somehow or other been latched on to by the Government in order to extend benefits, which are appropriately and properly those to be applied to legally married spouses, to de facto couples. I add that it has done that without any explanation of what guidelines are to be used in respect of the application of this law. I want to know from the Minister for Resources and Energy the precise guidelines to be used by the Taxation Office for the application of the provisions contained in clause 20 of the Bill.