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Monday, 21 October 2002
Page: 5545


Senator WEBBER (8:38 PM) —Like my colleagues Senator Ludwig and Senator Cook, I did not speak in the initial debate on the Members of Parliament (Life Gold Pass) Bill 2002. Like Senator Ludwig I chose not to, because I saw it as being a fairly straightforward matter of extending an existing entitlement to a relationship and of recognising those relationships further down the track when it came to entitlements for those who have retired from this place. I was a little staggered to discover that in fact this issue was to be redebated and that it was proving to be a little contentious with some on the other side.

Being a relatively new member in this place, I have had cause to examine the definition of spouse contained within other entitlements and other legislation. Like others who have spoken before me, I should also declare my interest in that I do not have a spouse—de facto, married or otherwise. I am actually single. I do not even have a spouse who cannot be recognised under existing legislation. It remains to be seen whether I would ever qualify for something that came remotely close to a life gold pass. However, in having a look at the entitlements that those of us who are members of this place can access, I became acquainted with the access that a spouse would have to certain travel and other entitlements. I presume that the thinking behind that was about the support the person who you are in a committed relationship with gives you in fulfilling your public duties and about the somewhat arduous role that we get to fulfil in this place.

When I examined this more closely, I realised that there was in fact even more flexibility when it came to the spouse travel entitlement. Because I do not have a legally recognised spouse, I would actually be able to transfer that entitlement to another member of my immediate family. So it would seem that, when you are a participating member of this place, there is enormous recognition of the contribution that spouses and other immediate family members make to the conduct of your duties and of the support that you need from them. There is indeed quite exceptional flexibility in the way that we interpret the provision of those entitlements.

You accept that, as you carry out your day-to-day operations while you are here as a member of this place, but you can then look further at, say, retirement. Section 4B of Parliamentary Contributory Superannuation Act says:

For the purposes of this Act, a person had a “marital relationship” with another person at a particular time if the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time.

The section goes on to talk about qualifying periods for that. It says that in some cases it is three years and in other cases it is taken as being five years. It talks about when that time actually commences. Section 4B(ii)(b) goes on to say:

... the person had been living with that other person as that other person's husband or wife for a continuous period of less than 3 years up to that time ...

It talks about the trust looking at relevant evidence so that it can form an opinion as to whether it was a genuine relationship, and then it says:

.. that the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

So it would seem that, if you are an existing member of this place, there is flexibility about the relationship definition in terms of spouses accessing entitlements. That flexibility does not extend to Senator Greig's particular circumstances, but, as I said, it does allow me to extend the entitlement to a member of my immediate family, because I do not have a partner.

The act then talks about accessing retirement incomes and we have a fairly flexible definition of spouse there—you do not have to actually be legally married. As Senator Ludwig said, when this original legislation was considered by the Finance and Public Administration Legislation Committee there was considerable debate. The committee's report goes into some detail about the significant opposition from the community to the proposed very narrow definition of spouse. Indeed, they say in their report:

The Committee notes the widespread opposition to the proposed definition of spouse in Clause 4, Part 1 of the Bill. The Committee considers that the definition of spouse is too limited and should be broadened to reflect current mores. The Committee also notes that, while in accord with the definition applied by the Remuneration Tribunal—

and therein lies a bit of the problem—

the definition is inconsistent with that in the Parliamentary Entitlements Act 1990.

Surely it would make a great deal of sense if we had one consistent definition of what a relationship was and what a spouse was throughout the entire consideration of our entitlements as members of this place. After all, we have a very consistent definition of what a spouse or a partner is within the other pieces of government legislation.

One of the other causes for concern that I have when considering this legislation is that, whilst I accept this legislation is framed to address some fairly recent concerns about the administration of entitlements and to address some community concerns about some fairly untoward happenings in certain circumstances, it seems to me that it is important to have legislation like this that outlines a framework for the future—that actually deals with the people that are likely to be contributors to and members of this place in the future and with the basis their relationships are likely to be on.

As has been mentioned earlier in this debate, nationally de facto couples make up almost 10 per cent of all persons living in couple type relationships. In Western Australia that percentage is even higher, with 12 per cent living in a de facto type relationship. So, of the, say, 408,000 couples in WA presently, 12 per cent of them are living in a de facto relationship. Further analysis of those statistics shows that there is, as has been mentioned before, a much higher proportion of de facto partnering in younger people. Of all the de facto partners in 1997, 56 per cent were aged 20 to 34. The next highest percentage was in the adjacent age group of 35 to 39. We are seeing an increasing number of younger people coming into this place and we accept that young people are more likely to form de facto style relationships than more traditional marriage relationships. We are seeing the entrance of younger people like Senator Nettle and Senator Payne into this place. In fact, even I fit into the second age cohort mentioned there—only just, these days! Well, I do have two years to go. It would seem to me that it is ridiculous for us to set out to frame legislation that has a very strong chance of excluding 50 per cent of people's relationships. It is just ridiculous to set out to deliberately try and pass legislation that will exclude more and more members of this place.

As I have mentioned before, most other government legislation in fact has a fairly straightforward recognition of a relationship and of what a spouse is. Even our Department of Defence is more than happy to recognise that a spouse in relation to an employee includes a de facto spouse. A de facto spouse in this case—and this will not suit Senator Greig—means a person of the opposite sex to the employee who lives with the employee as the husband or wife of that person on a bona fide domestic basis. As has been mentioned before, Immigration takes that definition of a relationship into account when considering people's eligibility to come to this country. The Commonwealth's own superannuation scheme—used by those who are employed by people in this place— accepts that a spouse can actually be a de facto spouse. It says, in defining who can access benefits after a member of the scheme has died, that a spouse who survives a deceased person is defined as a person who was in a marital relationship with the deceased person at the time of the person's death, and that a marital relationship means ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis. So for people that are employed by members of this place it is very clear, in terms of them accessing their entitlements, that a de facto is included as part of the definition of a spouse. In social security law, when it comes to determining people's ability to access government benefits the government has absolutely no problem in accepting the definition of a de facto spouse and including a de facto as a bona fide partner.

In my own state of Western Australia, we have just been through quite a detailed process—as Senator Greig would be aware—of reviewing all of our laws to make sure they incorporate people's partnership arrangements. Whilst I accept that extending these to same sex relationships causes some concern to those opposite, they have no trouble accepting heterosexual de facto relationships in other pieces of their legislation, as I have outlined before. My state in fact now accepts a de facto partner in all forms of its legislation. I will go through some of the more interesting examples that they had to consider. A de facto partner who is aged 18 years or over will now have the same rights as a spouse, under the Anatomy Act 1930, to prevent anatomical examinations of a person who has died. Under the Workers Compensation and Rehabilitation Act 1981, a surviving de facto partner of a deceased worker will now have the same access as a surviving spouse to compensation payable in respect of death. An official visitor appointed under the Mental Health Act 1996 will now have a disqualifying interest in respect of a particular association or organisation if that person's spouse or de facto partner has a financial interest in that association or organisation. Under the Judges Salaries and Pensions Act 1950, a surviving de facto partner of a judge who has died will now have the same entitlements to that judge's judicial pension as a surviving spouse of a judge. If we can actually address this kind of reform for the judiciary and for all of the employees of the Commonwealth—and therefore for all of those that are employed by members of this place—it seems to me appropriate that that definition of a spouse should apply to all entitlements for the members of this place as well.