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Tuesday, 13 December 1983
Page: 3694


Senator HARRADINE(8.47) — by leave-Mr Chairman, I move:

(2) Page 3, sub-clause 4 (1), definition of ''de facto spouse'', lines 31 to 34 , leave out the definition.

(3) Page 4, sub-clause 4 (1), definition of ''marital status'', paragraph (f), line 25, leave out the paragraph.

The first amendment seeks to delete the definition of 'de facto spouse'. The second seeks to omit 'marital status', as defined, the de facto spouse of another person. These two amendments are on the same subject matter, and it was for that reason that I sought leave to move them together. The Committee is debating a most important matter because, for the first time in Commonwealth legislation, an attempt is being made to place a de facto relationship on the same level as, or give it the same status as, that of a bone fide married relationship. I say that advisedly because I asked the Parliamentary Library to do a SCALE computer search of Commonwealth legislation and the response of that search of all 20 volumes of Commonwealth law indicates that no similar legislation seeks to place a de facto relationship on the same status level as that of a married relationship-with one exception; that is, the Seamen's War Pensions and Allowances Act 1940. The definition of a de facto given therein is quite distinct from what is contained in the legislation before us. One of my amendments seeks to delete the definition of 'de facto spouse'. Clause 4 (1) of the Sex Discrimination Bill states:

'de facto spouse', in relation to a person, means a person of the opposite sex to the first-mentioned person who lives with the first-mentioned person as the husband or wife of that person on a bone-fide domestic basis although not legally married to that person;

Whilst 'de facto spouse' is not mentioned in the Seamen's War Pensions and Allowances Act, the term 'de facto wife' is. If honourable senators compare the definition in the Sex Discrimination Bill with the definition in that Act they will see what I mean. In the Seamen's War Pensions and Allowances Act the definition of 'de facto wife' states:

'de facto wife', in relation to an Australian mariner, means a woman who, though not legally married to him, has been wholly or substantially maintained by and has lived with the Australian mariner as his wife on a permanent and bona fide domestic basis continuously from a date not less than six months prior to the relevant date and who, at the relevant date- (a) had in her charge a child of the Australian mariner;

(b) was over forty years of age; or

(c) was incapable of supporting herself by reason of her mental or physical incapacity of long standing;

That is the only equivalent provision in legislation. It confers a cash benefit on such a person. Other administrative regulations and the like-for example, the tertiary education assistance scheme regulations, social security administrative decisions and taxation laws-recognise de facto spouses. The difference between those regulations and what is being attempted here is that their purpose is to ensure that de factos do not receive an advantage over a bona fide married couple. I hope members of the Opposition hear this because it is vital to an understanding of it, and I hope I will receive their support. Quite obviously, if such a provision was not taken into account in social security administration decisions de factos could receive two unemployment benefit cheques, for example. The TEAS regulations confer a monetary benefit on a student. This Bill places in Commonwealth legislation for the first time a provision which puts a de facto relationship on the same level as a bona fide married relationship. That might not be too bad, but this provision then forces everyone to accept that fact under pain of being a discriminator. That is the essential difference. I would like the Committee to understand that difference. It is not a question of having and expressing one's views. I believe in the sanctity of marriage and the like, but I am not expressing that belief to justify my opposition to what is contained in this provision. I put to the Committee that the Bill attempts to impose a viewpoint on people and to make them observe that viewpoint under pain of penalty. I will give the example of accommodation. A hotel keeper might wish not to let a room to a de facto couple, one of whom may be his daughter. Clause 23 of the Bill, which deals with accommodation, states:

It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person's sex, marital status or pregnancy- (a) by refusing the other person's application for accommodation;

(b) in the terms or conditions on which accommodation is offered to the other person . . .

Marital status is defined as including the de facto spouse of another person. I put that to the Committee for full consideration. The other reason why I believe that the Government and the Opposition should carefully consider this matter is that it is a misinterpretation of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women. After all, the object of the Bill is to give effect to certain provisions in the Convention. Nothing in the Schedule to the Bill, which is the United Nations Convention, refers to de facto spouses as being on the same basis as married persons. The reason for the absence of such a reference is simple-it was never meant to be there.


Senator Gareth Evans —What about marital status? Is not de facto a kind of marital status?


Senator HARRADINE —I wish to explain this to the Attorney-General. I happened to be in the United Nations as the political adviser from this Parliament in 1977 when the Third Committee was dealing with the drafts of this Convention. I have refreshed my memory and have with me all of the relevant documentation concerning the debate on this matter. I hope the Opposition is listening to this because I have the documentation from the United Nations Third Committee considerations and from the working party. The fact is that the original wording of the clause of this Bill which deals with marital status was 'discrimination against women whether married or unmarried'. Those were the words in the draft that was before the United Nations when I was in New York. Discussions took place-I suppose I am the only one here who knew about this-and subsequent to our leaving, the following, as recorded in the report of the working group of the Committee of the Whole on 6 December 1977, was said:

During the discussion which followed, most representatives objected to the use of the words 'married or unmarried', noting that this terminology did not cover all categories of women such as widows, and divorced or separated women.

I would like the Committee to understand that there was no mention whatsoever of de facto relationships in relation to marital status in any of the United Nations Committee's considerations. I hope the Attorney-General will consider this question. If he or his Government is relying on the external affairs power as the constitutional means of requiring adherence to this provision he has another think coming.


Senator Giles —Was there no recognition of common law marriage?


Senator HARRADINE —No. This is all the documentation which was found after a search. The argument amongst all of those groups, and I must say a disparate lot of people were there from all sorts of nations, some of whom would not have a bar of 'de facto' had it been included-


Senator Gareth Evans —But everywhere in the world what we call common law marriage is given the same status. You have to acknowledge that.


Senator HARRADINE —The Attorney-General may not have heard me, but I have mentioned and proven that this is the first time that this status is being recognised at law and being forced down people's throats. It is one thing to recognise it at law-I understand that-but it is another thing entirely to force it down people's throats under pain of penalty.