295. Relevant Areas. Compensation for injury on death arises in a number of different areas of the law, including worker’s compensation, motor vehicle accidents legislation and criminal injuries compensation. Entitlement to superannuation benefits (although not ‘compensation’) will also be considered under this heading. Compensation benefits in these areas are generally payable to the surviving spouse and children. In recent years this basic principle has been extended in some States and Territories to include a surviving de facto spouse and other persons who were dependent on the injured or deceased person. Only in the Northern Territory is a traditional marriage specifically recognised for the purposes of determining entitlement to compensation. It is necessary to deal separately with each category.
296. Workers’ Compensation. The Workmen’s Compensation Act (NT) provides for compensation to be paid to relations ‘by blood, traditional marriage or custom’, and there is specific provision for additional dependent traditional wives aged 16 or more. Dependent traditional wives aged less that 16 are only eligible as ‘dependent children’. In all other Australian jurisdictions a traditionally married spouse would only be able to rely on the rights given to de facto spouses (eg widows) pursuant to workers’ compensation legislation, generally by the use of a broad definition of ‘dependant’. For example the Workers Compensation Act 1926 (NSW), s 6(1) defines ‘dependant’ as:
such of the worker’s family as were wholly or in part dependent for support upon the worker at the time of his death … and includes … a person so dependent who although not legally married to the worker lived with the worker as the worker’s husband or wife on a permanent or bona fide domestic basis.
In some jurisdictions a de facto relationship will only be recognised if the parties have lived together for a specified period of time or if there are children of the relationship. These provisions are no doubt capable of benefitting traditionally married spouses who otherwise qualify under the statutory criteria of dependency, although it is not clear whether they would allow compensation to be paid to more than one wife.
297. Recognition of Traditional Marriage in Workers Compensation Legislation. It is very hard to justify excluding traditionally married dependants from entitlements to worker’s compensation benefits. These benefits are an important form of protection to employees and their dependants. To deny compensation to Aboriginal dependants because they practice different family traditions would be to deny to Aboriginal employees an important aspect of their employment rights, and to shift the burden of dependency from the employer to the State (through the social security system). It would be even less justified in that Australian worker’s compensation Acts pay little regard to the forms or categories, as distinct from the fact, of dependency. Traditional marriage should be recognised as ‘marriage’ for all worker’s compensation purposes. Specific provision for traditional spouses, as in the Northern Territory, is a better way of ensuring that this recommendation is implemented in practice. Existing provisions entitling putative or de facto spouses to worker’s compensation vary significantly between the States. Unnecessary time limits are imposed and the position of plural wives (between whom compensation rights on death should be shared) is not clearly dealt with. In most jurisdictions the legislation relating to dependants appears wide enough to include situations of polygyny (even though it may not have been envisaged by the drafters of the legislation) but specific provision for this situation should be made.
298. Accident Compensation. As with workers compensation legislation, traditional Aboriginal marriage is given only limited recognition in accident compensation legislation.
Northern Territory. The Motor Accidents (Compensation) Act (NT) specifically provides for benefits to be payable both to a de facto spouse and an Aboriginal traditional spouse. ‘spouse’ is defined in s 4 to include:
(d) a person who was not legally married to the person but who, for a continuous period of not less than three years immediately preceding the relevant time, had ordinarily lived with the person as the person’s husband or wife, as the case may be, on a permanent and bona fide domestic basis, and who, in the opinion of the Board, was wholly or substantially dependent upon the person at the time: and
(e) where that person is an aboriginal native of Australia — a person referred to in (a), (b), (c) or (d) or who is, according to the customs of the group or tribe of aboriginal natives of Australia to which he belongs, married to him.
A traditionally married person is in a better position under paragraph (e) than he or she would be if forced to rely on the de facto relationship qualifications in paragraph (d). The Compensation (Fatal Injuries) Act 1974 (NT) has similar recognition provisions for de facto relationships and traditional marriage. Section 4(3)(e)(ii) provides that
a person who –
being an Aboriginal, has entered into a relationship with another Aboriginal that is recognized as a traditional marriage by the community or group to which either Aboriginal belongs
shall be treated as the wife or husband, as the case may be of the deceased person.
Commonwealth Legislation. A similar approach is taken in the Compensation (Commonwealth Government Employees) Act 1971 (Cth), which provides for compensation to dependants on the death of a Commonwealth employee. ‘Dependant’ is defined to include a lawful spouse, and
a woman who, throughout the period of three years immediately before the date of the death of the employee, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis.
In addition an Aboriginal traditional spouse is specifically provided for:
‘spouse’ in relation to an aboriginal native, or a deceased aboriginal native, of Australia or of an external Territory, includes a person who is or was recognized as the husband or wife of that aboriginal native by the custom prevailing in the tribe or group of aboriginal natives of Australia or of such a Territory to which that aboriginal native belongs or belonged.
The point of this provision was explained by the Commonwealth Commissioner for Employees’ Compensation:
a special provision was required to cover such cases because unless a tribal wife or wife by native custom could fulfil the requirements that a de facto wife had to meet, eg, cohabitation throughout a period of three years, then an incapacitated employee with a tribal wife or wife by native custom would, probably, be ineligible for the additional weekly compensation in respect of such a wife. Moreover, in the case of a compensable death of an Aboriginal employee, the wife or husband would, probably, not have been eligible for compensation although she or he was, in fact, a dependent spouse.
In other Australian jurisdictions traditionally married spouses would only be entitled to accident compensation benefits if they came within the provisions covering de facto relationships or a qualification based on dependency. For example in South Australia the Wrongs Act 1936 enables a ‘putative spouse’ to bring an action in respect of the death of a deceased spouse if caused by the ‘act, neglect or default’ of another person. This legislation is unique in that it also specifically provides for an apportionment of benefits (in such manner as the court thinks fit) if the deceased is survived by both a lawful spouse and a de facto spouse. There is a five year qualification requirement for a ‘putative spouse’ under the South Australian Act. In Victoria the Motor Accidents Act 1973 (Vic) established a system of no fault compensation for persons injured in road accidents. A ‘dependent spouse’ is defined (s 3(1)) to include a woman living with a man immediately prior to his death on a permanent and bona fide domestic basis, and wholly or mainly dependent on him for economic support. No time qualification is specified for a de facto spouse.
299. Recognition of Traditional Marriage for the Purpose of Accident Compensation. The parties to a traditional marriage should be able to claim compensation for death or injury independently of whether they come within the definition of a de facto relationship. The House of Representatives Standing Committee on Aboriginal Affairs in its report on The Effects of Asbestos Mining on the Baryulgil Community (1984) recommended
that priority be given to legislation under the Commonwealth marriage power, according recognition to Aboriginal marriages, at least for the purposes of actions for damages for lost support by surviving dependants in cases of death caused by personal injury.
The arguments outlined in para 297 dealing with workers compensation apply here also. Where there is more than one spouse (whether a traditional spouse or a Marriage Act spouse) eligible to receive compensation the compensation should be apportioned between them at the discretion of the court or authority with responsibility for paying the compensation.
300. Criminal Injuries Compensation. Only the Northern Territory specifically provides for the parties to a traditional marriage in its Crimes Compensation Act (NT) s 4(2). Thus a traditionally married Aborigine would only be able to claim a benefit under provisions for de facto relationships or general dependency provisions in State law (where these apply). For similar reasons, traditional Aboriginal marriages should be specifically recognized for the purposes of criminal injuries compensation.
301. Superannuation. Variations in superannuation schemes throughout Australia make it difficult to give a definitive account of the position of spouses or de facto spouses, still less of the parties to Aboriginal traditional marriages. In general terms the number of Aborigines who are traditionally married and contributors to superannuation schemes is relatively small. But this position may change and the argument for recognition in principle remains. A number of approaches are taken in both government and private superannuation to surviving de facto spouses. Some schemes specifically provide for the surviving de facto spouse of a contributor to make a claim. Other schemes give the administrator a discretion to make payments. It is more common for benefits to be payable to a de facto widow than a de facto widower. Some schemes allow apportionment where there are competing claims between a de facto spouse and a Marriage Act spouse, although it is more usual for a Marriage Act spouse to be paid benefits to the exclusion of a de facto spouse. Most superannuation schemes involve a contractual relationship for example, between an employee and an employer or between an individual and an insurance company. Schemes which are regulated by legislation require amendment, so that specific recognition may be given to traditional marriages. The actuarial consequences of such an extension are likely to be minimal, so that there is no reason not to apply the amendments to existing contributors to statutory superannuation schemes. With private schemes traditional marriages should also be recognised, at least with respect to schemes established in the future.
See NSWLRC 36, ch 13.
Workmen’s Compensation Act (NT) s 6, 7, Second Schedule, especially para(1A)(b)(i), D, E. There has been no Northern Territory experience of claims by traditional wives under the Act: President, Workmen’s Compensation Tribunal, Submission 326 (29 April 1982).
The period is three years in WA and Queensland, five years in SA.
cf In re Fagan (1980) 23 SASR 454, 464-5 (Jacobs J).
According to the Northern Territory Insurance Office, in the first three years of the operation of the Act there had been no claims involving Aboriginal traditional wives: Submission 330 (13 May 1982).
s 5, definition of ‘spouse’. The ALRC has been informed by the Commissioner for Employees Compensation that ‘no problems have been encountered in relation to Aborigines under the Act’: Commissioner for Employees Compensation (BJ Dwyer) Submission 327 (3 May 1982). This position had not changed as at 29 October 1985.
Commissioner for Employees Compensation (BJ Dwyer) Submission 327 (3 May 1982).
Not all States recognize de facto spouses. Western Australia does not despite a recommendation of the WALRC to include de facto spouses: WALRC, Report on Fatal Accidents, Perth, 1978, para 3.32.
Wrongs Act 1936 (SA) s 3a (definitions of ‘spouse’ and ‘putative spouse’), 20(4) and (7) (action for wrongful death), 23b (action by spouse for solatium). The apportionment provisions are s 20(3), 23b(2) & (3). Under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) apportionment would be the responsibility of the Commissioner under s 45(3) & (4).
House of Representatives, Standing Committees on Aboriginal Affairs, Report. The Effects of Asbestos Mining on the Baryulgil Community, AGPS, Canberra, 1984, 120.
Similar considerations apply to repatriation: see Repatriation Act 1920 (Cth); Repatriation (Far East Strategic Reserve) Act 1956 (Cth); Repatriation (Special Overseas Service) Act 1962 (Cth); Repatriation (Torres Strait Islanders) Act 1972 (Cth).
For example Criminal Injuries Compensation Act 1967 (NSW); Criminal Injuries Compensation Act 1977 (SA); Criminal Injuries Compensation Act 1982 (WA); Criminal Injuries Compensation Act 1983 (Vic) s 3.
See NSWLRC 36, 91-2, 302 for a brief account.
In the Northern Territory over 900 Aborigines are employed by the NT Public Service and contribute to the superannuation fund. JD Gallacher, Office of Aboriginal Liaison (NT) Submission 339 (30 July 1982).
eg the scheme for Commonwealth public servants: Superannuation Act 1976 (Cth) s 6 of which defines ‘spouse’ to include de facto spouse in most cases.
That is, with respect to entitlements accruing after the proposed legislation comes into force. cf para 269.