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Wednesday, 4 November 1992
Page: 2518


Mr CADMAN (10.21 a.m.) —The House is discussing the Commonwealth Superannuation Schemes Amendment Bill. The Bill amends Commonwealth superannuation legislation to remove discrimination on the grounds of marital status in line with the Commonwealth's 1991 amendments to the Sex Discrimination Act. The amendments will bring the Commonwealth superannuation schemes into line with the requirements under the Sex Discrimination Act for private sector superannuation schemes. The main changes involve the removal of so-called discrimination between legally married spouses and de facto ones. The Bill proposes a series of criteria to define `spouse', the new gender neutral term that replaces `widow' and `widower' in Acts.

  The private sector has been put on notice that by the middle of next year it will be required to recognise de facto relationships for the payment of superannuation. That is based on the Sex Discrimination Act—in which, surprisingly, one finds that `marital status' is defined as being single, married, married but living separately and apart from one's spouse, divorced, widowed or the de facto spouse of another person. So, for the purposes of Commonwealth legislation, the Sex Discrimination Act equates people living in a married relationship with those living in a de facto relationship.

  Under section 6 of the Sex Discrimination Act, it can be seen that discrimination cannot take place on the basis of marital status. So within the sex discrimination legislation discrimination on the grounds of whether or not one is married is linked with a definition of marital status that recognises de facto relationships as being equivalent to marriages.

  I see great difficulties in this approach for many areas of administrative law. The processes adopted in the Sex Discrimination Act and their consequences have created administrative problems. In seeking to equate a legally constituted marriage with a de facto relationship, one should remember that married couples make a public statement that they will share responsibility for children and property and will care for each other for life. That commitment to each other is recognised by law in the Marriage Act. However, a de facto relationship does not require a public statement and does not have a legal basis except in common law. The Family Law Act is being considered by a joint committee of the Parliament. I guess that the Committee would have under active consideration de facto relationships, how they can be established within the law, how they should be viewed by the community and by our courts, and whether we should continue to rely on common law or use some other process.

  When we come to issues such as superannuation schemes, there is a financial advantage in being able to establish that there is a relationship. The difficulties of proving what is a de facto relationship and all the uncertainties that arise from that process have shown up in a number of areas. They have shown up in the social security Acts; they have shown up in the migration Acts.

  I think it is time that Australia took a good look at where we have moved to in writing something into the Sex Discrimination Act to placate people who feel that they are discriminated against when, on the other hand, married couples feel discriminated against under other Acts because of the possible denial of benefits. So we have here a conflict between a private understanding which may be seen differently by each party and a legally recognised and publicly stated situation. Really it is the equating of a lifestyle arrangement with a legal commitment.

  The uncertainties of de facto relationships are apparent in the Commonwealth Superannuation Schemes Amendment Bill and other Acts of this Parliament. We are looking ahead, I guess, to further changes to the Sex Discrimination Act whereby further entitlements are given—completely improperly, in my view, because all people should be equal before the law. It appears to me that there is a bias against those people who have made a lifetime commitment in marriage as compared with those in a de facto relationship. On death or separation, there are different grounds for making assessments of entitlement, depending on whether it is a de facto couple or a legally married couple.

  Under the Social Security Act, additional benefits are gained by those people who are not married. But if there is in existence a de facto relationship that can be proved, which is very difficult to do—as a nation we have been through the difficulties of trying to prove whether there is in existence a relationship that can be called a de facto relationship—a lesser benefit applies. The community is a bit sick and tired of people rorting the system, suiting themselves by seeking recognition of a de facto relationship as a marriage-like relationship but, on the one hand, seeking to gain benefits that they are not properly entitled to if that relationship really exists. However, a marriage has a legal basis and administrative matters can easily be dealt with by the Parliament.

  Under the Immigration Act, a similar situation applies: a person who can establish that he or she is in a de facto relationship with an Australian citizen has the right to apply for Australian residency. All sorts of claims of a de facto relationship based on bodgie documents have been allowed by the Department because there is no way of determining whether in fact a de facto relationship exists. We have the Commonwealth today legislating on such weak grounds as de facto relationships.

  I think it is time that we as a parliament looked at this matter and sorted it out in the interests of fairness before the law and in the way in which people are dealt with by the great departments of state. Married couples, who have made commitments and who are bound by law, should not continue to be disadvantaged as compared with those who enter into a lesser and looser relationship because it suits them. I make no judgment about what people wish to do with their lifestyles, but I do make a judgment about the way in which they are being treated.

  I find the Bill before the House somewhat objectionable because it puts into further law the understanding that a de facto relationship is indeed the same as a legally constituted marriage. That is not the case. I sound a warning that I believe that the private sector and the Government are unnecessarily paying funds for benefits of all sorts because of the looseness of the law and the failure of this Parliament and our community to come to grips with this vexed problem. It is time that we did. Therefore, whilst I will not vote against this measure, I think it is completely improper.