322. Taxation. The Income Tax Assessment Act 1936 (Cth) is a complex piece of legislation, and many of the difficulties of interpretation and application discussed in relation to the Social Security Act 1947 (Cth) are also relevant to the taxation legislation. The quest ion which arose with the Social Security Act also arises with the Income Tax Act: is it necessary or appropriate to recognise traditional marriages for the purposes of the Act? Marital status can have important consequences in the Income Tax Act. In particular the tax liability of a taxpayer is affected by whether he is able to claim any of the personal rebates (eg spouse, housekeeper, dependant, sole parent, concessional expenditure) provided for in the Act. Until recently, the term ‘spouse’ was not defined for the purposes of such rebates, and it was held not to include a de facto husband or wife, However from 1984/85 the term ‘spouse’ includes a de facto spouse (of the opposite sex) for the purposes of the dependant rebate. There is also now a special rebate entitlement for a taxpayer who contributes to the maintenance of more than one ‘spouse’. This would include for example a taxpayer who maintained a legal spouse and a de facto spouse, two de facto spouses or two legal spouses in the case of a foreign polygamous marriage recognised in Australia. It would thus include a polygamous traditional Aboriginal marriage, where the parties were able to be classified as de facto spouses under these new provisions. In the case of more than one spouse the general rule is that only one dependant spouse rebate is available, but the Commissioner has a discretion to allow a higher rebate if there are special circumstances. A rebate will generally not be available where the income of one spouse is high enough to completely extinguish the rebate, although again a rebate, up to the maximum for one spouse, may be allowed by the Commissioner. The Commission recommends that specific recognition should be given in the Income Tax Assessment Act 1936 (Cth) to traditional marriages. Such an amendment would not mean that additional dependant rebates would be available to Aborigines, as the new provisions summarized here would apply. But Aboriginal spouses would be regarded as legal spouses rather than de facto spouses for the purposes of the Act.
323. Jurisdiction of Courts. A number of submissions to the Commission suggested that the Family Court of Australia be given jurisdiction over traditional marriages. The Commission does not, with one exception, recommend the recognition of traditional marriage in any of the areas (divorce, maintenance and property distribution pending or upon divorce, domestic violence) in which the Family Court presently has jurisdiction. The exception is the custody of children who would, under the recommendation on the status of children, become legitimate and therefore, in a sense, children of a marriage. The question of custody jurisdiction with respect to such children is complicated by the divisions which presently exist between the different Australian custody jurisdictions. These will be discussed in more detail in Chapter 16, where recommendations on this question are made. In other respects, recommendations in this Chapter support the recognition of traditional marriage in areas (eg adoption, worker’s compensation) where there are already established courts or tribunals with exclusive jurisdiction, or in areas (eg status of children, inter-spousal non-compellability) where the matter can arise generally in any court. No specific recommendations as to jurisdiction are called for in these areas.
324. Other Implications of Marriage. Although the issues in this Chapter are the most important ones in which marriage has legal consequences or implications, and the only ones in which there is any evidence before the Commission suggesting a need for reform, they by no means exhaust the range of references to marriage in the statutes of the Commonwealth, the States and Territories. Many of these references have incidental legal consequences if the marriage is recognized as valid. It would be a difficult task to locate each of these references in Australian laws. The New South Wales Anti-Discrimination Board in a Report in 1978 listed no fewer than 44 New South Wales Acts which, in its view, discriminated on grounds of marital status. It is likely that a similar list could be compiled for each of the remaining Australian jurisdictions. On balance the Commission does not believe that traditional marriages should be recognized for all of these diverse purposes, purposes which in most cases would be likely to be perceived by traditional Aborigines as irrelevant, and some at least of which will conflict with Aboriginal perceptions and traditions of marriage. An alternative would be to allow the Governor General by regulation to specify additional laws or classes of laws to the list of laws in the proposed legislation for which traditional marriage is to be recognised. But this would be in effect a delegated power to vary the operation of State or Territory legislation. In the absence of any clear indication of need, it may be difficult to justify an extensive power of this kind. If problems arise with non-recognition of traditional marriages in any of these miscellaneous areas, the legislation in question can be amended, or a new class of matters can be added to the proposed provision for recognition of traditional marriages by amendment. New laws should also be kept under review to ensure that traditional marriages are considered for separate recognition (alongside Marriage Act marriages and de facto relationships) where this is appropriate. For these reasons, no ‘residual’ recognition provision is recommended.
325. The Form of Legislation recognising Traditional Marriage. In this chapter, the Commission recommends the recognition of traditional marriages for a variety of purposes. In the case of certain Commonwealth Acts covering a specified field where consequential difficulties arise (specifically the Social Security Act 1947 (Cth), and the Income Tax Assessment Act 1936 (Cth)) this should be done by specific amendment to those Acts. In the case of recognition for purposes of the common law or other legislation, if such recognition is to be conferred by federal law, then separate provision needs to be made. This should take the form of a clause describing those laws in generic terms, and conferring equivalent rights, powers, duties or immunities on persons traditionally married as those laws confer on persons married under the general law. Consequential provisions need to be made for the exercise of powers etc by other persons with respect to traditional spouses under those laws, and for the apportionment of benefits between plural spouses. A definition of ‘tradition al marriage’, and the related evidentiary provisions discussed in Chapter 13, should also be added. Other legislation recognizing traditional marriage can then incorporate by reference that definition, avoiding inconsistent or overlapping definitions in different Acts.
Case P24 (1982) ATC 105. However a housekeeper rebate could be claimed for a de facto spouse with care of a child.
Income Tax Assessment Act 1936 (Cth) s 159H(3), s 159J (5A).
The Hon C Holding, Minister for Aboriginal Affairs, stated that the recognition of traditional marriages for the purposes of dependent spouse rebates required attention: Australian Law Reform Commission — Australian Institute of Aboriginal Studies, Report of a Working Seminar on the Aboriginal Customary Law Reference. Sydney, 1983, 3.
Family Law Council (Justice Fogarty) Submission 285 (28 November 1983) suggested concurrent jurisdiction.
See para 271.
See para 377-82.
Anti-Discrimination Board, Report on Discrimination in Legislation, Government Printer, Sydney, 1978.
There are, for example, over 900 references to the terms ‘marriage’, ‘spouse’, ‘husband’ and ‘wife’ in the Acts of the Commonwealth Parliament.
As to which see Chapter 38.
See para 258-69.