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Friday, 5 December 1986
Page: 3481

Senator GARETH EVANS (Minister for Resources and Energy)(10.58) — As to Senator Harradine's constitutional point, I do not want to give any considered reaction to it, except to say that to the extent that marital status may not be subsumed-although I do not concede that-under the sexual discrimination convention there is, nonetheless, a capacity for the Commonwealth to support anti-discrimination legislation based on that criterion by reference to the territories power, and its power in respect of its own employees, which is relevant, for example, to the Commonwealth government employees legislation which we are here proposing to amend. There is a capacity for the Commonwealth to set conditions relating to non-discrimination on this ground with regard to expenditure from Commonwealth programs and so on. It was on that collection of foundations, essentially, that this particular ground was erected. I will not-and I hope Senator Harradine will forgive me-get into a long debate about the justification for non-discrimination on this ground. There may be circumstances, as always, in discrimination legislation, in which it is entirely rational and defensible to use this as a discriminating criterion. Equally, there are other circumstances in which it is manifestly irrational and a reflection of prejudice or whatever. It is those situations, essentially, at which the legislation is directed.

As to Senator Peter Baume's actual amendment, which focuses on the Seamen's Comp- ensation Act and the Compensation (Commonwealth Government Employees) Act amendments, let me say this: We are not seeking in any way to change any of the principles of the operation of this legislation. It is still proposed to deal with de facto situations in this legislation in the same way, as a matter of principle, that they have been dealt with before. It is just a question, however, of bringing the definitions of de facto status in that legislation more or less into line with the definitions of de facto status in the Sex Discrimination Act itself.

Senator Peter Baume —With respect, it is a bit less than more.

Senator GARETH EVANS —I am not quite sure that that is right. In the Compensation (Commonwealth Government Employees) Act and the Seamen's Compensation Act there is not only a reference to a bona fide domestic relationship, which is the heart, soul and substance of the definition of `de facto relationship' in the Sex Discrimination Act; there is in addition to that characteristic a further reference to the relationship continuing for a period of three years immediately before the death or whatever of the persons concerned. We are simply proposing to remove that essentially arbitrary limit of three years and bring the legislation back to the basic concept which is more or less identical with that in the Sex Discrimination Act; that is to say, a bona fide domestic relationship. I think it has to be acknowledged that one can envisage all sorts of circumstances in which an injustice or hardship may well be worked by the application of this inflexible statutory criterion of three years.

One can imagine the case of a thoroughly bona fide domestic relationship extending for two years and eight months and the male partner in that relationship suffering a compensable accident and his partner being denied compensation on the basis of the time limit alone. No doubt, as Senator Peter Baume intimated, the provision was put in for ease of practical administration and enforcement but after all we are here talking about a relatively limited number of administrative decisions under this legislation. This is not a massive, open-ended area of benefit disposition and as such I do not think the administrative problems of determining the bona fide character of a particular relationship should be regarded as insuperable or overwhelming. There is just a desire to introduce consistency with the definition in the parent Sex Discrimination Act and I hope the legitimacy and sense of the amendments will be accepted on that basis.