302. Social Security Benefits. Social security benefits are of major importance to many Aboriginal families and communities. But not all social security entitlements are equally adapted to Aboriginal patterns of life, nor do the criteria for eligibility or the methods of payment always accord with Aboriginal perceptions or needs. These problems exist quite apart from the administrative difficulties in the delivery of social services to remote communities. Frequent complaints were made during the Commission’s Public Hearings not only about these administrative difficulties but also about the inappropriateness of some of the assumptions behind the Social Security Act 1947 (Cth). These problems are not confined to the recognition of traditional marriages. They exist in a variety of other contexts, for example, payments in respect of child care in Aboriginal extended families. There is also evidence of conflict between individual social security entitlements and the demands of Aboriginal communities, for example in cases of unemployment benefits or supporting parents benefit. These matters are not all within the Commission’s Terms of Reference. For present purposes it is necessary to discuss the recognition of traditional marriage for the purposes of the Social Security Act 1947 ( Cth), and related problems of implementation and administration.
303. Aboriginal Traditional Marriage under the Social Security Act 1947 (Cth). Under the Social Security Act 1947 (Cth) marriage is relevant to entitlement to pensions or benefits in a variety of ways. For example, the wife of an age or invalid pensioner living with her husband is entitled to a wife’s pension. The Act now equates de facto relationships with marriage. For the purposes of wives’ pensions, a ‘wife’ includes a ‘female de facto spouse’, and a ‘de facto spouse’ is defined to mean:
a person who is living with another person of the opposite sex as the spouse of that other person on a bona fide domestic basis although not legally married to that other person.
Conversely, a wife not living with her husband is not (with certain exceptions not presently relevant) entitled to a wife’s pension but may be entitled to a widow’s pension. In general the Act uses terms such as ‘wife’ and ‘widow’ not to describe legal or social categories, but in a special way, as a vehicle for the provision of benefits. But there are still some situations in which the legal status of marriage may be relevant to entitlement to benefits under the Act. These mostly relate to entitlement to widows’ pensions. For example, a woman ‘whose marriage has been dissolved and who has not remarried’ is entitled to a widow’s pension provided she otherwise qualifies: a former de facto wife is, it seems, not so entitled. More importantly, a wife whose husband dies (and who otherwise qualifies) is entitled to a widows’ pension irrespective of the length of the marriage and irrespective of whether she was financially dependent on her husband, or was living with him at the time of his death. In the case of an unmarried woman, all three extra factors are material, since to be a ‘widow’ for this purpose a ‘dependent female’ must satisfy the definition (more stringent than in respect of wives’ pensions) in s 59(1) of the Act:
‘dependent female’ means a woman who, for not less than 3 years immediately prior to the death of a man … was wholly or mainly maintained by him and, although not legally married to him. lived with him as his wife on a permanent and bona fide domestic basis.
In these cases, at least, a wife is in a better position than a de facto spouse for the purposes of entitlement to widow’s pensions. For most other purposes of the Act it does not matter whether the claimant is legally married or not. The lack of entitlement under the Act does not necessarily mean that no pension or benefit will be payable. It is possible that the Department would, as a matter of discretion, allow the claim in such cases. This would not necessarily be classified as a ‘special benefit’ under s 124 of the Act: it might simply be treated as an exercise of discretion in respect of one of the other categories of pension or benefit.
304. Entitlement or Discretion? This kind of administrative flexibility is a feature of Departmental practice in the case of Aboriginal claimants and communities. On one view it makes formal recognition of entitlement (based for example, on being a wife or widow under Aboriginal customary laws) irrelevant. There are several answers to this argument. First, the failure of the Act to recognise traditional marriage does have important implications where there is more than one wife, and perhaps in some other cases also. By no means all of these situations are overcome in practice by exercises of Departmental discretion. Secondly, since discretion has to be exercised, various costs are incurred in terms of inconsistency and uncertainty (with consequent correspondence and delay) which would not occur if the entitlement was clear and distinct. Thirdly, it is not desirable to force Aboriginal claimants into the category of ‘special benefits’ through the failure of the Act to recognise their traditional family laws and structures. Aborigines, like all other Australians, are eligible to apply for pensions or benefits under the Act, and it is undesirable that payment of pensions or benefits should be, in their case, specially dependent upon discretion through the failure of the Act to accommodate their distinctive traditional ways of life. Welfare dependency is no less debilitating through being a result of discretion rather than entitlement. These problems were referred to in the Department’s submission to the Commission:
It is evident that the basic philosophy of the Australian income security program differs markedly to that which influences traditional Aboriginal lifestyles … Access to income security arid other program areas of the Department is made difficult for Aboriginals because of the different cultural assumptions on which such programs are based. The challenge for the Department is to ensure that it meets the needs of Aboriginals living a traditional lifestyle.
At present the Department’s policy is, in general, to treat traditional spouses as wives rather than ‘dependent females’. Thus in the situations identified above, a traditional wife would be treated as qualifying for a widows’ pension where a ‘dependent female’ might not qualify. As the Department stated in a letter clarifying its policy with respect to traditional marriage:
The policy practice has been to accept [that] the first traditional marriage is the same as a legal marriage for social security purposes.
305. Plural Wives. Although the Department’s present policy favours the recognition of monogamous traditional marriages as such for the purposes of the Act, their policy in the case of polygynous marriages is more complex. It was explained by the Department in the following terms:
The Social Services Act does not define what is a marriage. It is apparent that the Act is formulated on the basis that by law and custom people have only one husband or one wife at any one time. Accordingly, it is silent on the treatment of any situation where a person has more than one spouse at any time. In these circumstances, it has been necessary to make policy decisions as to the treatment of Aboriginals who have engaged in tribal marriages according to their custom. The policy practice has been to accept –
the first tribal marriage is the same as a legal marriage for social security purposes:
the Social Services Act envisages that a person will have only one wife.
The underlying assumption that a person has only one spouse at any time is reflected in other fundamental aspects of the Act such as the application of the income test to a married couple. The Act requires, in the assessment of pension, that in the general married situation the income of a husband or a wife shall be deemed to be half the total income of both. In a similar vein in the assessment of unemployment or sickness benefit the requirement is that the income of a person includes the income of that person’s spouse. Such procedures would obviously be inappropriate where a marriage consists of more than two parties.
306. Application of the Act to Plural Relationships. No doubt the provisions dealing with computation of income, to which the Department’s submission refers, were drafted on the assumption that there would be only one ‘husband’ and ‘wife’ in any case (although they are by no means incapable of operating with plural relationships). But the basic provisions entitling persons to wives’ or widows’ pensions are not necessarily restricted to de facto monogamous relationships. Legislation which provides for the co-existence of a legal wife and a de facto wife ( even if the legal wife is separated or ‘deserted’) cannot be said to be dealing with monogamous relationships. For example, a wife, deserted by her husband (an age or invalid pensioner) for another woman with whom the husband lives, is still the ‘wife of an age pensioner or an invalid pensioner’ within the meaning of s 31(1), but the de facto wife of the pensioner is also his ‘wife’. The pensioner thus has two wives at one time. The reasons why one (the deserted wife) is not entitled to a wives’ pension is not because the term ‘wife’ is singular, but because a wife living separately from her husband may not be paid a wife’s pension (s 31(2)). If, three years later, without having obtained a divorce from his first wife or left his de facto wife, the pensioner died leaving both wives aged at least fifty, both women ought, it seems, to be regarded as widows for the purposes of widows’ pensions. Indeed this possibility seems to be clear from the inclusive definition of ‘widow’ in 59(1). A widow, as defined in s 59(1), who meets the other criteria in s 60 is entitled to a widows’ pension. There is nothing in Part IV of the Act which indicates that only one person at a time is entitled to a widow’s pension in respect of any one deceased husband. Indeed, the Department does not itself contend that a person cannot have more than one ‘wife’ under the Act. The point arises in the context of disqualification from benefits, under the so-called ‘cohabitation principle’. The Department treats a second wife as ‘living with a man as his wife on a bona fide domestic basis’ for the purposes of disqualification from widows’ or supporting parents benefit, but not as being or having been his wife for the purpose of qualification for wives’ or widows’ pensions. The bas is of the Department’s position is not so much the meaning of ‘wife’, as an appeal to an unexpressed inference from the Act, that ‘the legislature would have envisaged that each man would have only one wife’. Given the ordinary legal meaning of ‘wife’ this may be so, although Australian law in other respects contemplates that a man may have more than one wife. But given the special definition of ‘wife’ in the Act it is by no means clear that the legislature contemplated that there would be only one ‘wife’. And, whatever the legislature may have thought, it is difficult to find a basis for this view in the words of the Act.
307. Critique of the Present Position. In the absence of authoritative interpretation of the relevant provisions by the courts or the Administrative Appeals Tribunal, it is not clear that the Department’s policy in dealing with polygynous traditional marriages would be sustained. However the question for the Commission is whether it is desirable to recommend express recognition of traditional marriages (including polygynous marriages) for the purposes of the Act. There are several reasons for doing so:
Inconsistency. It is repugnant to treat a second traditional wife as living with her husband ‘as his wife’ so as to disqualify her from benefits under the Act, but as not doing so for the purpose of qualifying her for benefits.
Non-Recognition of Traditional Status. Even if the practical consequences of non-recognition as a wife are avoided (as they often are) through payment of unemployment benefit or special benefit, the Department is put in the position of saying to a second wife, in effect, that she is not her husband’s wife.
Arbitrariness in Selection of ‘First’ Wife. In order to apply its policy the Department treats the ‘first’ wife at the relevant time as the wife for benefit purposes. The ‘first’ wife is the one who has been married the longest to the husband. Apart from occasional mistakes in administration (leading to benefit being paid to the second wife, not the first) this is arbitrary. At the time when eligibility comes to be determined, it may well be that the ‘second’ wife has come to be the focal wife in the household, with the first wife occupying a subsidiary role. To treat the older wife as the ‘first’ or only eligible one may conflict with Aboriginal perceptions of the marriage. On the other hand if the husband chose to marry the second wife under the Marriage Act 1961 (Cth) she would, apparently, supplant the ‘first’ wife for the purposes of the Act although in other respects the Act gives no preference to Marriage Act wives over de facto wives.
Denial of the Most Appropriate Status to Persons in Need. In general, the Department pursues the policy of classifying a claimant in need in the most appropriate way (where several categories of benefit are relevant). But in this context, this policy is not applied. If the argument for recognition of a traditional wife as a ‘wife’ for this purpose is accepted, then to treat a second wife as eligible only for special benefits or unemployment benefits is to deny her the most appropriate status under the Act.
308. The Aggregation of Payments. One objection to the recognition of polygynous marriages relates to the possible aggregation of payments it might cause. The point was made by the Department in the following way:
If tribal marriage were recognised for Social Security purposes it would mean that … a man would receive at the same time additional unemployment or sickness benefit for a number of wives eg a man with say three wives each of whom had three children would be able to receive benefit of $312.20 a week … In the situation referred to … the man’s income would be significantly in excess of present Average Weekly Earnings … There might also be problems in ensuring that the wives received the benefit of the payments made in respect of them. This could be overcome, however, by making direct payments to the wives. Moreover, there would still remain a problem in that the total benefit would, under the law as it now stands, be taxable income in the hands of the husband.
There are several answers to this argument. In the first place, it should be provided that any payment made in respect of a second or subsequent wife (or of children in her ‘custody and control’) should be made directly to her and be regarded as her income. This is the position now in respect of wives’ and widows’ pensions paid to ‘first wives’, and it should be extended to unemployment benefit. Actually the present position involves perhaps a greater risk of aggregation to the disadvantage of dependants, since in the example given by the Department, while the second and third wives would get nothing the husband would be regarded as having custody of all nine children and would be paid accordingly. There can be real problems in ensuring that the children receive the benefit of the payments made in respect of them. These problems would be significantly reduced by paying benefit to the custodial wives. Secondly, while the ‘family unit’ would, in the Department’s example, receive an income in excess of the average weekly wage, the family in question consists of thirteen persons, and the needs are correspondingly greater. But if aggregation of payments in a particular family is thought to be a problem it can be dealt with under the Department’s existing powers. Even when a claimant is entitled to benefit, the rate of benefit is that ‘in each case … determined by the Director-General as being reasonable and sufficient, having regard to all the circumstances of the case’ up to the maximum rate for that benefit. The Department could, under this power, determine an appropriate rate having regard to family income and other circumstances. Thirdly, as the Department itself concedes, in practice less appropriate benefits (unemployment benefit or special benefit) are currently being paid to many second or additional wives:
There could be cost implications if tribal marriages were recognised for the purposes of the … Act. However, these could be offset in full or in part by expenditure on other benefits to which wives. after the first, at present qualify in their own right eg unemployment benefit, sickness benefit etc. Overall cost implications may’ not therefore be significant.
Recognition of traditional marriage under the Act would also simplify its administration and avoid costs in claims and correspondence.
309. Application of Section 6(3) of the Act. One final problem relates to the application of provisions such as s 6(3) to plural marriages. Under s 6(3)(b) ‘the … income of a married person shall be taken to be 50% of the sum of the income of that person and of the person’s spouse’ for the purpose of determining the level of benefits payable. The Department bases its argument about the inapplicability of the Act to plural marriages on these ‘fundamental aspects’ of it. On the interpretation of the Act suggested, it is not clear why s 6(3) should not be read simply as applying to the husband and each wife as between themselves, nor would it be inequitable to read it in this way. The problem, if it is one, could be dealt with under the Department’s existing powers, or a power to deal with the consequences of payments to multiple wives by regulation could be conferred, along the lines suggested by the English Law Commission in its Report on Polygamous Marriages. Although it may not be strictly necessary, the Commission recommends that such a regulation-making power be conferred.
310. Conclusion. For these reasons, traditional marriages should be recognised as marriage for all the purposes of the Social Security Act 1947 (Cth). This recognition should extend both to ‘first’ marriages. in accordance with the Department’s present policy, and to polygynous marriages where these exist. It is necessary to put this recommendation into perspective. A small minority of traditional marriages are actually polygynous. No exact figures are available. but the evidence suggests that about 10% of traditional marriages in the Northern Territory, involve more than one wife, and that this number may be gradually declining. Elsewhere in Australia the proportion is even less. On the other hand, the practice is a reflection of Aboriginal customary laws, and it is not so uncommon or infrequent that it is unnecessary to deal with it. The Social Security Act 1947 (Cth) should be amended by the insertion of a provision that the term ‘wife’ includes an Aboriginal woman whose relationship with an Aboriginal man is regarded as a marriage according to the customary laws of the group to which she or they belong. One consequence of this recommendation is that traditional marriage will disqualify a traditional wife from the receipt of supporting parents’ benefit or widow s’ pension (in respect of a previous marriage). This is consistent with the Act as presently’ administered. Where a new marriage relationship has been formed eligibility to pension or benefit is to be determined by reference to that relationship. not an earlier one.
311. Some Problems of Administration. Finally, brief reference should be made to some related problems of administration of the Act in the context of traditional marriage.
Separate Payments. During the Commission’s Public Hearings, the comment was quite frequently made that, when unemployment benefit was paid to the husband at the married rate, it was often regarded as ‘his’ money, and the wife was expected to subsist (and often care for children) on ‘her’ money, child endowment. This seems, at least in part, a result of the perceived separateness of husband and wife in traditional society. It is certainly more consistent with this tradition, as well as more effective in terms of delivering support to those in need, to provide for separate payment of pensions or benefits to husband and wife. Something has already been done in this direction by the Department: for example, split cheques can now be paid by computer in some States and in the Northern Territory, rather than having to be processed manually. Steps should be taken to allow for separate payments of benefit to husband and wife as of right. In the case of traditionally married claimants. the presumption should be in favour of separate payments in all cases.
Payments to Spouses on Account of Children. Similarly, payments to spouses on account of children should, where split cheques are paid, be paid as nearly as possible to the person with actual care and control of the children, rather than automatically being aggregated in the name of the husband.
Information and Liaison. The identification of traditional marriages for benefit purposes adds to the problem which presently exists of delivery of social security benefits to Aboriginal communities. Because of the Department of Social Security’s present policy on traditional marriages this function of identification is already being carried out in the Northern Territory much of this investigative and liaison work is carried out by the Aboriginal Liaison Unit within the Department, with Aboriginal field officers travelling regularly to communities. The Liaison Unit is a significant factor in assisting the Department’s work with Aboriginal communities, and should be supported and developed accordingly. There is also room for the appointment. especially in remote communities, of part-time agents who can assist claimants in filling out forms, providing evidence for their claims, etc. Such agents could help in explaining the social welfare system and in providing help and education to beneficiaries in handling their money, a matter for which there is both the need and the demand. A pilot scheme along these lines has been conducted in Queensland. The Department is also working on simplifying its claim forms and other forms, something which is a prerequisite for more effective community education in the social welfare system.
312. Relationship between Maintenance and Social Security. The conclusion that traditional marriage should be recognised for the purpose of the Social Security Act 1947 (Cth) might be thought to rest uneasily alongside the conclusion in para 278 and 290 that traditional marriage not be recognised for the purposes of maintenance or property distribution. However, as pointed out in para 289, there is no basis in Aboriginal customary laws or traditions for imposing maintenance obligations on the termination of a relationship, and no good reason to single out traditional marriage for this purpose. There is thus no justification for seeking to deprive traditional spouses of social security payments because of what are legally (and practically) unenforceable claims to maintenance.
It was, for example, suggested that the qualifying age for an age pension be lowered in the case of Aborigines because of their lower life expectancy: C Adams and W Neil, Transcript Nhulunbuy, (10 April 1981) 1271-3. See also S Wenman, Transcript Maningrida (8 April 1981) 1095-1101; E Bruen, Transcript Perth (20 March 1981) 274; C Adams, Transcript Nhulunbuy (10 April 1981) 1271-3; K Major, Transcript Kowanyama (27 April 1981) 1835-6. The Department of Social Security itself acknowledges that assumptions behind the Act do not fit with Aboriginal concepts: Director-General of Social Security (AJ Ayers) Submission 305 (19 June 1981). For general discussion of this issue see Coombs, Brandl & Snowdon, esp 302-17.
See para 387-91. Also G Gleave, Transcript Willowra (21 April 1981) 1564-5.
Director-General of Social Security (AJ Ayers) Submission 305, (19 June 1981):
The Social Services Act clearly does not recognize the peculiar features of traditional Aboriginal laws and customs. For example, supporting parents benefit conflicts with the tribal concepts of kinship support since it presupposes the situation of alone parent living without support. The introduction of personalized income security payments such as unemployment benefit and supporting parents benefit into a communal system based on kinship networks and sharing of resources could be seen as contributing to the breakdown of the social fabric of traditional Aboriginal life.
cf also S Martin Jambajimba Transcript Willowra (21 April 1981) 1544; H Wilson, Transcript Peppimenarti (6 April 1981) 1025.
The Department of Social Security has itself conducted a review of many of these questions: Aboriginal Access to Departmental Programs and Services, Canberra, October 1983 (hereafter DSS Report). This was an internal Report, presented to and approved by the Minister. Implementation of the recommendations in the Report is under consideration.
Social Security Act 1947 (Cth) s 31 (hereafter SSA).
SSA s 6(1) (inserted 1984). There is a similar definition of ‘husband’.
SSA s 59, definitions of ‘deserted wife’ and ‘widow’.
SSA s 59, definition of widow, para(c). The term ‘wife’, with its extended meaning under s 6(1), is not used in para(c). s 6(1) contains a definition of ‘married person’ which includes a de facto spouse, but no definition of ‘marriage’ or ‘dissolved’.
The definition of ‘widow’ in s 59(1) is inclusive only and is not expressed to include the ‘ordinary’ case of the female survivor of a Marriage Act marriage. As a result there is no term in s 59 for the extended definitions of ‘wife’ etc in s 6(1) to act on.
Director-General of Social Security (AJ Ayers) Submission 305 (19 June 1981) 3.
Department of Social Security, Submission 333 (20 May 1982) Attachment. For other submissions on DSS policy see Minister for Social Security (Hon FM Chaney) Submission 361 (15 November 1982); Department of Social Security (JT O’Connor & D Hall) Submission 340 (4 & 17 August 1982); Department of Social Security (PJ Marrs) Submission 341 (26 August 1982).
The DSS Report (1983) recommended, among other things, recognition of traditional marriages for all benefit and pension purposes: para 3.10.1. It does not appear that this change to Departmental policy has yet been made, and certainly no amendments to the SSA have yet been proposed.
Department of Social Security, Submission 333 (20 May 1982), Attachment.
The most important of these provisions (formerly s 29) is now SSA s 6(3) (inserted 1984).
After six months, the wife, though not divorced, might become entitled to a widows’ pension (59(1)). The husband would then have, at the same time, a ‘wife’ and a ‘widow’.
Entitlement to a widows’ or supporting parents’ benefit is lost by a woman ‘who is living with a man as his wife on a bona fide domestic basis although not legally married to him’: SSA s 59(1), 83AAA(1). See A Jordan, As His Wife. Social Security Law and Policy on De Facto Marriage, DSS Research Paper 18, Canberra, 1981; MJ Mossman & R Sackville, ‘Cohabitation and Social Security Entitlement’, in Essays on Law and Poverty: Bail and Social Security, AGPS, Canberra, 1977, 80.
Family Law Act 1975 (Cth) s 6. In several respects (eg the provision for ‘deserted wives’) the SSA does not accord with developments in family law in the Family Law Act 1975.
eg L Fishpool, Transcript Willowra (21 April 1981) 1557.
As Dr D Bell pointed out: Submission 491 (16 September 1985) 5.
Department of Social Security, Submission 333 (20 May 1982). The Department commented that ‘Marriage under the Marriage Act indicates that Tribal Laws have been abandoned. Therefore [the] second (legal) wife would be entitled to wife’s pension’. It is not clear whether this situation has arisen in practice.
In respect of wives’ pensions, a de facto ‘dependent female’ of one month’s standing is preferred to a ‘deserted’ wife of twenty years: SSA s 6(1), definition of ‘wife’, 31(1) & (2).
Director-General of Social Security (AJ Ayers) Submission 305 (19 June 1981).
If the children were children of a second wife’s earlier marriage, the husband woud not usually have ‘custody, care and control’ of them: s 112(5)(a). See para 387-90. Unless he was making ‘regular contributions towards [their] maintenance’ (s 112(5)(b)) he would not be entitled to extra money in respect of the children. On that basis, no-one would be so entitled.
SSA s 28(1), 32(1), 63, 83AAE.
Apparently this power is rarely used. In the UK the practice with respect to non-contributory pension schemes is to pay a second wife in a household ‘the difference between the scale rate for a married couple and that for a single householder’: D Pearl, ‘social Security and the Ethnic Minorities’ (1973) 1 Soc Welfare L 24, 34. All Commonwealth pensions are non-contributory in this sense.
Department of Social Security (AJ Ayers) Submission 305 (19 June 1981).
The definition of ‘de facto spouse’ under s 6(1) refers to a ‘person of the opposite sex’. Accordingly these would be no question of aggregating income of, say, two wives under s 6(3).
See para 308.
UK, Law Commission No 42, Report on Polygamous Marriages, London, 1971, 41-4, recommending that polygamously married claimants ‘should qualify for the benefit except where regulations otherwise provide’.
As recommended by the DSS Report (1983) para 3.10.1.
According to the Department of Aboriginal Affairs’ Aboriginal Population Records, there are approximately 4,889 ‘tribal unions’ in the Northern Territory: LG Wilson, Submission 321 (15/27 March 1982). Of these, approximately 665 marriages were polygynous; 525 with two wives, 102 with three, 25 with four, and 13 with five or more. See also para 227-8.
C Adams, Transcript Nhulunbuy (10 April 1981) 1271-2; ALRC Field Trip No 7 Central Australia, October 1982, 10, 21, 32, 36; Dr Lane & Ms McCann, Transcript Alice Springs (11 October 1982) 2992. cf D Bell & P Ditton, Law: The Old and the New. Aboriginal Women in Central Australia Speak Out, 2nd edn, Aboriginal History, Canberra, 1984, 94-6.
The DSS Report (1983) para 3.16.1, recommended that the Department should:
• inform Aboriginal clients of the option of using split payment arrangements
• amend existing claim forms to enable applications for split payment to be made at the time of lodgement
• examine the feasibility of having the split payment method applied to benefit categories other than unemployment benefit
• evaluate the effectiveness of making payments using the split payments and warrantee scheme methods.
See also para 308.
See further para 387-91.
See DSS Report (1983) ch 7. Cultural factors have also figured in the administration of the Act in other ways: eg the ‘isolation’ test for eligibility for backdated payments under SSA s 102(1)(a): see Re Corbett (1984) ASSC 92-019; Johns v Director-General of Social Security (1985) ASSC 92-054.
For the recognition of de facto relationships generally for this purpose see para 282, 288.
Pursuant to SSA s 62. See para 285.