Gregory Brown v Commissioner for Superannuation

38 ALD 344

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(Decision by: Justice Jane Mathews , President; Dr D Sutherland , J Brassil , Member)

Gregory Brown, Re
Commissioner for Superannuation, and

Tribunal:

Justice Jane Mathews
President; Dr D Sutherland
J Brassil , Member

Decision date: 15 May 1995

Melbourne

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Decision by:
Justice Jane Mathews
President; Dr D Sutherland
J Brassil , Member

REASONS FOR DECISION

Background

1. The applicant seeks review of a decision by a delegate of the respondent, dated 6 July 1994, refusing him entitlement to a spouse benefit under subsection 81(1) of the Superannuation Act 1976 ["The Act"]. The decision was based on a finding that the applicant did not have a "marital relationship" with an eligible employee, as defined by section 8A of the Act, and hence was not a spouse surviving a deceased person under section 8B.

2. At the hearing, the applicant was represented by Robert Hinkley, and the respondent by Peter Hanks, both of Counsel.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with a statement of agreed facts and each party's statement of contentions. The applicant also sought to call four expert witnesses. However, their proposed evidence was found to be inadmissible for reasons which we shall discuss later.

4. Whilst the respondent contested the relevance of some facts relied upon by the applicant, there was essentially no dispute as to the facts forming the basis of this application.

5. The relationship sought to be included within the definition of "marital relationship" was a homosexual one, between the applicant and Robert Corva. Mr Corva was born on 18 June 1958 and the applicant on 5 March 1958. They met in 1982, and lived together from December that year until Mr Corva's death in 1993.

6. Both the applicant and Mr Corva were working in full time employment. Mr Corva was employed with the Commonwealth Department of Defence as an Administrative Services Officer from 24 January 1977, and at all times was a member of the Commonwealth Superannuation Scheme. The applicant and Mr Corva pooled their income and shared all living expenses, including rent, food, clothing, the cost of furniture and appliances, and miscellaneous bills.

7. Mr Corva and the applicant were constant companions and lovers, and were accepted by their families and friends as a couple living together in a defacto relationship. It was agreed by the respondent at the hearing that the relationship was both permanent and bona fide.

8. In 1985, Mr Corva was diagnosed HIV positive. He continued working until 30 March 1993, and then applied for invalidity benefits under the Act. On 26 August 1993, he died of HIV/AIDS related complications. The applicant nursed Mr Corva until his death. By a will dated 8 July 1993, Mr Corva bequeathed the whole of his estate to the applicant.

9. In October 1993, the Commissioner for Superannuation approved payment to the applicant of the benefit due to Mr Corva's estate. By letter dated 25 March 1994, the applicant also applied for spouse benefits under the Act.

10. Section 81(1) in Part VI of the Act provides for entitlement to a spouse benefit where an "eligible employee" dies before attaining the maximum retiring age and is survived by a "spouse".

11. There is no dispute that Mr Corva was an "eligible employee" at the date of his death. Whilst he had ceased work and had applied for invalidity benefits pursuant to Part IVA of the Act, the respondent had yet to reach a decision on his eligibility prior to his death. Accordingly, pursuant to section 3 of the Act, Mr Corva is to be classified as an eligible employee and not a retirement pensioner. It is also beyond dispute that Mr Corva died at the age of 35, well before the maximum retirement age.

12. Accordingly, the only issue at the hearing was whether the applicant was Mr Corva's "spouse" at the time of his death.

The Legislation

13. The term "spouse" is defined by sections 8A and 8B of the Act. These sections were inserted by the Commonwealth Superannuation Schemes Amendment Act 1992. Section 8B(2)(a) of the Act provides:

"8B(1)....

(2) For the purposes of this Act, a person is a spouse who survives a deceased person if:

(a)

the person had a marital relationship with the deceased person at the time of the death of the deceased person ("the death");..."

14. Section 8A defines "marital relationship" as follows:

"8A (1) For the purposes of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time.

(2) For the purposes of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis at a particular time only if:

(a)

the person had been living with that other person as that other person's husband or wife for a continuous period of at least 3 years up to that time; or

(b)

the person had been living with that other person as that other person's husband or wife for a continuous period of less than 3 years up to that time and the Commissioner, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to that other person.

(3) For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).

(4) For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:

(a)

the person was wholly or substantially dependent on that other person at the time;

(b)

the persons were legally married to each other at the time;

(c)

the person had a child who was:

(i)

born of the relationship between the persons; or

(ii)

adopted by the persons during the period of the relationship;

(d)

the persons jointly owned a home which was their usual residence.

(5)....

15. For the purpose of these proceedings the respondent concedes that all the requirements of section 8A(1) are fulfilled, except that which requires that the applicant be living with Mr Corva as his husband or wife. It is this issue which became the focus of debate during the proceedings. The submissions centred around the meaning of the words "husband" and "wife", as well as the scope of the phrase, "lived ... as that person's husband or wife".

The Evidential Issue

16. On the first day of the hearing Mr Hinkley announced his intention to call evidence as to the meaning of the words "husband" and "wife". He was not suggesting that these words had any special or technical meaning, but submitted that the proposed evidence would be helpful to the Tribunal in determining the natural and ordinary meaning of these words. Mr Hanks objected to this course, and quoted authority to the effect that it is for the tribunal of fact to determine the natural and ordinary meaning of English words, and that evidence will not normally be admissible on this issue. Nevertheless, Mr Hinkley was given an opportunity to provide witness statements as to the evidence he was seeking to adduce, and four statements were provided to the Tribunal before the adjourned second day of the hearing. These statements were by Professor Richard Ball, Dr Don Edgar, Dr Nick Crofts and Dr G Simes. In the event, we declined to allow evidence to be given by any of these proposed witnesses. At the time of making this ruling, we indicated that we would give our reasons in our final decision on the matter. These then are our reasons for rejecting the evidence sought to be adduced by the applicant.

17. The proposed evidence was divisible into three categories. That of Professor Ball and Dr Edgar could generally be described as sociological evidence and that of Dr Simes as lexicographic, whereas Dr Crofts' evidence went to the incidence of HIV/AIDS in homosexual men, and was relevant to a proposed submission under the Disability Discrimination Act 1992. In the event, the applicant decided not to proceed with the latter submission, and Dr Crofts' evidence was thus not pressed.

18. We turn then to the "sociological" evidence. Professor Ball is a psychiatrist and Dr Edgar a sociologist, each of them extremely prominent in his field. They both described a shift in the nature of relationships, which has corresponded with a trend away from the traditional roles of the man as breadwinner and the woman as homemaker. This shift has meant that gender differences within relationships has markedly decreased and perhaps disappeared. It follows (according to Professor Ball) that the words "husband" and "wife", as traditionally defined, decreasingly reflect the way in which people relate to each other within relationships. According to Dr Edgar, the "social definition" of the words "husband" and "wife" is not fixed but reflects the dominant gender norms in society, and presently could encompass homosexual couples in a lasting relationship. The gender of the parties, he says, is no longer a crucial element in determining whether the relationship of husband and wife exists.

19. It was not clear from the witness statements whether this proposed evidence was directed to the actual meaning of the words "husband" and "wife" or to the social context in which the words are currently used. There was much in Professor Ball's statement which suggested the latter. In other words, the thrust of his statement was that we in society have progressed beyond the stage where gender differentiations should be seen as relevant in relationships, be those relationships heterosexual or homosexual. The actual gender of the partners is no longer a criterion by which one can determine whether or not a relationship exists. Homosexual relationships are increasingly recognised in our society as being capable of having the same quality and nature as heterosexual relations. To this extent Professor Ball considers that society now recognises that the relationship between male homosexual couples can be like the relationship of husband and wife.

20. Much if not all of Professor Ball's statement amounts to social commentary with which we generally agree and upon which we think it would be unnecessary to call evidence. But it does not assist us in the determination we have to make in this case. The question for us is not whether it is socially appropriate or desirable to define relationships in gender based terms; but whether the legislature has done so through the use of the words "husband" and "wife".

21. Mr Hinkley urges that this "sociological" evidence extends beyond social commentary and is relevant to the actual meaning of the words "husband" and "wife". In particular, he says that it shows the current usage of the words to have extended into gender neutral territory. And there are passages in Dr Edgar's statement which support this proposition. In Dr Edgar's view it is no longer appropriate in Australian society to define relationships in gender-based terms. In-so-far as the words "husband" and "wife" are still used to describe parties to a relationship, they have now lost their gender connotations and will apply equally to homosexual relationships as to heterosexual ones.

22. If, as Mr Hinkley suggests, this evidence is relevant to determining the natural and ordinary meaning of the words "husband" and "wife" in section 8A then it is difficult to see how it can be admissible. And although we in this Tribunal are not bound by general rules of evidence, we are clearly bound to follow established principles of statutory interpretation.

23. There is a long line of authority to the effect that it is for the tribunal of fact to determine for itself the normal meaning of ordinary English words, and that expert evidence will not be admissible for this purpose. As Swinfen Eady L.J. said in Marquis of Camden v. Commissioners of Inland Revenue [1914] 1 KB 641 at 649 to 650):

"It is the duty of the Court to construe a statute according to the ordinary meaning of the words used, necessarily referring to dictionaries or other literature for the sake of informing itself as to the meaning of any words, but any evidence on the question is wholly inadmissible. .... in my opinion evidence is not admissible as to the meaning of ordinary English words in a public Act of Parliament; we are not dealing with any private statutes nor with contracts. It is a public Act of Parliament, and the Court must take judicial cognisance of the language used without evidence."

24. This principle has been accepted, apparently without question, in numerous subsequent cases. See Thornley v. Tilley (1925) 36 CLR 1 per Knox CJ at 7; Australian Gaslight Company v. Valuer-General (1940) 40 SR (NSW) 126 Jordan CJ at 137; Bendixen v. Coleman Anors (1943) 68 CLR 401 per Latham CJ at 415; NSW Associated Blue Metal Quarries Limited v Federal Commissioner of Taxation (1955-56) 94 CLR 509 per Kitto J at 514; Brisbane City Council Anor v. Attorney General for Queensland (1978) 19 ALR 681 , Privy Council, at 686; FCT v. Hammersley Iron Pty Limited (1980) 33 ALR 251 per Gobbo J at 272; Korczynski v. Wes Loftus (Aust) Pty Limited (1985) 62 ALR 225 at 232. It follows that, to the extent that this proposed evidence purports to be relevant to the meaning of the words "husband" and "wife", these being words of normal parlance and in general use, it is inadmissible. It is for us to determine the meaning of these words without resort to expert testimony.

25. We turn to the statement of Dr Simes. Dr Simes is a professional lexicographer who is presently compiling a dictionary of the language of sex and sexuality. A proof of the relevant sections of that dictionary ("husband", "man", "marital", "marriage", "marry" and "wife") was handed to us during the hearing; and although we rejected his evidence we shall be referring later to some of these definitions.

26. Dr Simes' statement contains opinions as to the current meaning of the words "husband" and "wife". To this extent his evidence is inadmissible under the principle we have just discussed. In addition, we were told at the hearing that Dr Simes would be in a position to give evidence as to the very substantial time which it takes to produce standard dictionaries, so that dictionary definitions of words which are changing in their meaning are likely to lag behind current usage. Moreover standard dictionaries are compiled upon gender stereotyped assumptions and their definitions in this area are therefore suspect.

27. We are unable to see how any of this evidence could have any bearing on our determinations in this case. In our view it is impermissible to go behind dictionary definitions and receive evidence as to the assumptions which underlie them. As for the time which is taken to compile dictionaries, this is similarly immaterial. Dictionary definitions do not purport to set trends in the meanings of words. Their role is to reflect existing usage, rather than to influence it. With words which are changing in their meaning, dictionary definitions might well lag behind current usage. But so far as words of common meaning are concerned, the tribunal of fact, being part of the community in which the words are being used, will be independently aware of any change in their meaning. It will not require expert testimony to inform it of current usage.

28. Dictionary definitions are to be used as tools to provide assistance when needed, not as straitjackets into which words are to be confined. Indeed this case provides an excellent illustration of this principle. We shall be referring later to the definition of "husband" and "wife" in the Macquarie Dictionary. To some extent these definitions are anomalous, but at the end of the day they will play no real part in our determination as to the meaning of these words. For this we will be relying on our own understanding of the general meaning of these words as they are currently used in the community. "Husband" and "Wife"

29. Extensive submissions were made during the hearing both as to the meaning of the individual words "husband" and "wife" as well as to that of the composite phrase "lived with that other person as that other person's husband or wife". In many respects the issues raised under each were similar. However, for the purposes of the present discussion the obvious commencement point is to examine the meaning of the critical words in subsection 8A(1) of the Act namely "husband" and "wife".

30. These are ordinary words in frequent use in the community. It is common ground that in their traditional sense they refer respectively to the male and female partners in a marriage relationship. This traditional use is reflected in the dictionary definition of the words. In the Macquarie Dictionary the primary meaning of "husband" is "the man of a married pair (correlative of wife)". The definition of "wife" is "a woman joined in marriage to a man as husband".

31. By way of aside, it is interesting to observe the difference between these definitions. One cannot escape the conclusion that they may reflect a lingering sexism on the part of the dictionary compilers. It is difficult to find any other explanation for the element of subjugation which appears in the definition of "wife" but which is singularly absent from that of "husband". This is perhaps one aspect in which the meaning of these words has now moved on since the dictionary was compiled.

32. Mr Hinkley urges that the meaning of the words has changed in other respects. Indeed he argues that it has changed so far as to include not only unmarried heterosexual couples, but also homosexual couples. The words have now lost their gender connotations, he says.

33. It is unnecessary for us to determine in these proceedings whether the words "husband" and "wife" now include men and women who live together in a de facto relationship without having undergone a formal marriage ceremony. We are inclined to think that they might. If so, the meaning of the words has indeed moved on since the compilation of the Macquarie Dictionary. However any such movement, if it has occurred, reflects changing social attitudes towards the necessity of undergoing a marriage ceremony in order to have a marital relationship. It does not, in our view, reflect any diminution of the gender connotations in these words. For whatever other changes the words, "husband" and "wife", may have undergone over the years they retain, in our opinion, their complementary gender connotations. A "wife" is the female partner of a marital relationship and a "husband" the male partner.

34. Not only is the gender of the person crucial to the meaning of these words, but also, we think, the complementary nature of the relationship which they denote. To put it another way, each word connotes a relationship which presupposes the existence of the other: there cannot be a "husband" without there also being a "wife".

35. Mr Hinkley disputes this. He says that there is no reason why section 8A should not extend to husbands who live with husbands or wives who live with wives. He relies upon the history of the legislation as providing support for this contention. In particular he relies upon the definition of "spouse" which was previously contained in section 3 of the Act before it was repealed in 1992 and replaced by section 8A. This distinction included the following provision: "Spouse" means:

......

"(c) a person who was not legally married to the deceased person at the time of the person's death but who, for a continuous period of not less than 3 years immediately preceding the person's death, 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; ...."

36. Mr Hinkley urges that the deletion of the words "as the case may be" in the current definition supports the proposition that the words "husband or wife" have lost their complementary connotations. Accordingly, section 8A can now extend to husbands and husbands and to wives and wives.

37. This interpretation involves rejection of a fundamental assumption which has traditionally underpinned the words "husband" and "wife", namely the existence of a marital relationship, whether or not that relationship was preceded by a formal marriage ceremony. Whilst we are wary of quoting old authority in relation to a social institution which has changed so greatly over the years, we must refer to the Automobile Fire and General Insurance Company of Australia Ltd v. Davey (1936) 54 CLR 534 . The respondent in that case was a woman whose husband had died in a car accident. She claimed under an insurance policy in her own name which provided cover for injuries sustained by "the insured or his wife". No complementary cover was provided for an insured's husband. The High Court, reversing the Victorian Supreme Court, found that the respondent's husband was not covered by the policy.

38. Latham CJ referred to subsection 61(d) of the Property Law Act 1928, which provided, as a guide to interpretation, that "the masculine includes the feminine and vice versa". The Chief Justice continued (p. 538):

"In my opinion sec. 61 is a general provision to be interpreted and applied according to its terms and not to be read down by limiting it to matters affecting property. Sec. 61 (d) applies, however, only to words which are simply masculine or feminine and not to words which in their meaning include a masculine or feminine element but also some other element. "He" and "she" are merely words of gender. "Husband" and "wife" include gender as an element, but they also connote a particular relationship to another person."

39. Similarly, Starke J said (p. 540)

"But the words "husband" and "wife" denote much more than gender or sex, they also import a relationship. In order to ascertain the proper interpretation of the word "wife" in the policy now before the Court, the subject matter of the policy must be considered, as well as its general scope and language (Chorlton v. Lings (1); Viscountess Rhondda's Claim (2)). Here the word "wife" expresses a certain relationship to the insured, and is not merely a mode of denoting gender or sex."

40. Much has changed since that case was decided. In many ways, the central question we have to determine in this case is how much has changed in those intervening years. But one thing which we think has not changed is that the words "husband" and "wife" still presuppose the existence of a marital relationship involving each of them as parties. In other words, the complementary nature of the relationship is still inherent in the meaning of the words.

41. In our view the deletion of the phrase "as the case may be" from the definition in section 8A has not affected the meaning of the section. The phrase itself was meaningless in the previous section 3 and its deletion has been neutral in its effect.

42. There are, in any event, insurmountable obstacles to Mr Hinkley's submissions as to the meaning of the words "husband" and "wife". For if his arguments were successful, then the question would arise as to how one would categorise the parties in a homosexual relationship. The fact that the partners to the relationship were male would surely not make them both "husbands", any more than female partners would both be "wives". Which, then, would be the "husband" and which the "wife"? The manuscript of Dr Sime's Dictionary gives a secondary definition of the words "husband" and "wife" in the context of homosexual relationships, but only in a very restricted way: he defines a "husband" as "a man who takes the 'active' or 'masculine' role in homosexual relations; one who adopts the male role in a quasi-marital homosexual relationship characterised by role playing". Similarly, a secondary definition of "wife" is "a man taking the traditional female role in a quasi-marital homosexual relationship between two men: the effeminate or female- acting partner in a homosexual union characterised by role playing".

43. The literary quotations used by Dr Sime to illustrate these uses of these words are all relatively old. And this is not surprising. For we consider that these usages would have very limited application in today's social climate. As Mr Hinkley himself has commented, society is moving away from the assignment of gender based roles within relationships, be they heterosexual or homosexual relationships. There is an increasing emphasis on openness, equality and individual growth within all relationships in our society and a move away from traditional assumptions as to the relative roles of men and women. In other words, the old gender-based stereotypes are breaking down. It is no longer seen to be unusual for a woman to be the primary income earner in a relationship, or for a man to be the homekeeper. At the same time, concepts such as "masculinity" and "effeminacy", with their overtones of domination and subjugation, are now repugnant to many people. We venture to think that a great many people in homosexual relationships, be they male or female, would find it deeply offensive to be described in these terms. They would also reject the appellation of "husband" or "wife", but for slightly different reasons. As these words - "husband", "wife" - becoming increasingly neutral in terms of the roles they connote, their use becomes progressively less transferable into other situations. They can no longer be used as metaphors for power imbalances.

44. But this does not render these words devoid of meaning, although Mr Hinkley's submission would have this effect. For, contrary to his submission, the two connotations which we consider these words to have retained without qualification, relate to the gender of the holder and the existence of a marital relationship. A "husband" remains a married man, and a "wife" remains a married woman. Or, to put it another way, a "husband" and a "wife" are a man and a woman who are married to each other, with or without a marriage ceremony.

45. It follows from all we have said that we must reject Mr Hinkley's submissions as to the use of these words. They are incapable, in our view, of applying to partners in a homosexual relationship.

"Lived as that person's husband or wife"

The Applicant's submissions

46. This, however, is not the end of the matter. For Mr Hinkley has a further submission based on the composite phrase "lived ..... as that ..... person's husband or wife" in section 8A. He urges that the word "as" means "in the manner of" so that the total phrase means "lived in the manner of that person's husband or wife". When read in this sense the words lose their gender connotations, he says, and the definition is satisfied if the parties lived together as if they were married - a phrase which applies equally to homosexual as to heterosexual couples. This, Mr Hinkley says, is the meaning which was intended by Parliament when it enacted section 8A in its present form in 1992. It is consistent with the beneficial nature of the legislation. Moreover, this is the interpretation which accords with Australia's treaty obligations and is thus the one which should be preferred.

47. This submission is dependent upon the proposition that the word "as" in the phrase "lived .... as that person's husband or wife" means "in the manner of" and thus permits a broad view to be taken of the words which follow. It involves extending the meaning of the phrase beyond actual husbands and wives so that it encompasses people who live in relationships which are analogous to marriage.

48. Mr Hinkley accepts that the law as it presently stands requires that the parties to a legal marriage be of the opposite sex (Marriage Act 1961, sections 46(1), 69(2), Family Law Act 1975, Section 43(a) Hyde v. Hyde (1866) LR 1 P & D 130, Corbett v. Corbett [1971] P83, In The Marriage of C and D (1979) 35 FLR 340 ). However he urges that there is nothing in section 8A or 8B which requires that the parties be legally married. To the contrary, the word "as" in subsection 8A extends the section so as to include relationships which are analogous to marriage and in particular to bona fide and permanent homosexual relationships.

49. Mr Hinkley relies on the judgement of Fitzgerald J in Lynam v. Director General of Social Security (1983) 52 ALR 128 . That was an appeal from the AAT in which the central issue was whether the applicant (a male) was the "spouse" of a woman with whom he was living within the meaning of the Social Security Act 1947. The AAT had found that he was, having based its decision largely upon the financial relations between the two. Fitzgerald J allowing the appeal, said at 131:

"Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

It seems futile to deny that subjective views as to what are involved as basic attributes of the marriage relationship will intrude into the assessment called for. However, it is, in my view, important that the departmental officers or tribunals charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi- racial and otherwise diverse society."

50. Mr Hinkley suggests that the word "gender" can readily be substituted for the phrase "financial arrangements" at the beginning of the quoted passage. It demonstrates the broad multi-faceted approach which must be taken when assessing whether the relationship of husband or wife, or an analogous relationship exists. He also stresses that the principle underlying the provision of death benefits in superannuation is to provide for persons who would otherwise have benefited from and been dependent upon the superannuation benefits of the deceased but for his/her death. Accordingly, death benefits are based upon issues of relationship, dependency and proximity to the deceased and not upon issues of gender or sexual preference, and the definitions should be interpreted in this light.

51. Mr Hinkley's primary submission is that the ordinary meaning of the phrase "lived ..... as that other person's husband or wife" extends to include a marriage-like relationship between persons of the same sex. At most, he says, the provision is ambiguous. And if there is any ambiguity as to the meaning of the section, then it must be resolved in favour of a liberal interpretation in accordance with the beneficial purposes of the legislation. (Bull v. Attorney General of New South Wales (1913) 17 CLR 370 Homes v. Permanent Trustee Company of New South Wales (1932) 47 CLR 113 , Burns v. The Australian National University (1982) 40 ALR 707 , 43 ALR 25 , Motor Accidents Board v. Jovicic [1985] VR 171).

52. Furthermore, Mr Hinkley says that the history of the current section 8A supports his contentions. Quite apart from the deletion of the phrase "as the case may be" in the present definition, this was Parliament's opportunity to make clear, if this was its intention, that superannuation death benefits should be payable only to surviving spouses of the opposite sex, as the Victorian Superannuation legislation had done. Such a provision would have removed all ambiguities. The failure of Parliament to insert it in section 8A must denote an intention to extend superannuation benefits to same sex partners.

53. Finally Mr Hinkley submits that Australia's treaty obligations require that it not discriminate against individuals on the grounds of their sexual preference. Accordingly, it is a canon of statutory construction that if a meaning is available which is consistent with this obligation, then that is the meaning which should be ascribed to the legislation.

54. In this respect Mr Hinkley relies upon Articles 2.1 and 26 in the International Convenant on Civil and Political Rights. Those articles provide as follows:

"Article 2

1. Each State Party to the present Convenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Convenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

....

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

55. The United Nations Human Rights Committee has expressed the view that the reference to "sex" in Articles 2, paragraph 1 and Article 26 is to be taken as including sexual orientation. ("The Complaint of Nicholas Toonen"; Communication No. 488/1992; Human Rights Committee, United Nations, 50th Session; 31 March 1994.)

56. The High Court has recently emphasised the importance of interpreting local legislation in a manner which is consistent with Australia's treaty obligations. In Minister for Immigration and Ethnic Affairs v. Teoh (High Court, unreported 7/4/95), the Court by majority found that if a decision-maker proposes to make a decision which is inconsistent with Australia's treaty obligations, and thus with the legitimate expectations of its citizens, then procedural fairness dictates that the persons affected should be given notice and be afforded an adequate opportunity of presenting a case against the taking of such a course. Mason CJ and Deane J said at p 10:

"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute (4). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive (5). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s. 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party (6), at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because the Parliament, prima facie, intends to give effect to Australia's obligations under international law.

It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law (7). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations(8)."

The Respondent's Submissions

57. The respondent does not dispute that the approach to the interpretation of section 8A suggested by Mr Hinkley is, in theory, the correct one. Mr Hanks accepts that, where possible, an interpretation which is consistent with Australia's treaty obligations must prevail when one is determining the ambit of Commonwealth legislation. Similarly he concedes that legislation which has a beneficial or remedial purpose is to be interpreted broadly. But all these rules of construction bow before the primary rule that the words of an enactment must be given their natural and ordinary meaning unless to do so would lead to an absurdity. The natural and ordinary meaning of section 8A is clearly to allow spouse benefits under the Act to be available for persons of the opposite sex who are living in a marriage or marriage like relationship. True it is that Parliament did not specify in section 8A that the husband or wife need be a person of the opposite sex. It was unnecessary for it to do so, for that concept is inherent in the words themselves.

Conclusion

58. We find Mr Hanks' argument a compelling one. As we have already commented, the applicant's submissions as to the broad meaning to be attached to the words in section 8A are very much dependent upon the meaning to be ascribed to the word "as" within the phrase "lived with that other person as that other person's husband or wife". Mr Hinkley relies on the Shorter Oxford Dictionary's definition of "as", in the following terms: "in the same way as, as if, as it were; after the manner of; in the likeness of; like." However the dictionary also contains the following definition of the same word: "in the character, capacity, function, or role of." And it is this latter meaning, we have no doubt, which was intended to be conveyed in section 8A. The clear import of section 8A is to restrict access to spouse benefits to husbands and wives who have lived together on a bona fide basis whether or not they are legally married. It would be stretching the language of the section beyond any permissible bounds to find otherwise, notwithstanding Mr Hinkley's eloquent arguments to the contrary.

59. The definition in section 8A contains a common legislative device by which a person is designated according to the role, capacity or function which he or she occupies or performs. This is designed to achieve a degree of legislative certainty: only those persons so designated fall within the ambit of one of these provisions. It would confound all principles of certainty and defeat the purpose of much of the legislation in which this device has been used, if the meaning urged by Mr Hinkley were to be adopted. Accordingly, we are compelled to find that section 8A extends only to husbands and wives, and not to other persons in similar or analogous situations. And as a "husband" and a "wife" are, according to our earlier findings, a man and a woman who are married to each other, with or without a marriage ceremony, this cannot encompass partners in a homosexual relationship.

60. This interpretation accords with the intention of Parliament when section 8A was introduced in 1992. The previous definition of spouse contained in section 3 of the Act was in the following terms:

(a)

"a person who was legally married to the deceased person at the time of the person's death and who, at that time, was living with the person on a permanent and bona fide domestic basis;

(b)

a person who was legally married to the deceased person at the time of the person's death but who was not living with the person on a permanent and bona fide domestic basis at that time, and who, in the opinion of the Commissioner, was wholly or substantially dependent upon the deceased person at that time;

(c)

a person who was not legally married to the deceased person at the time of the person's death but who, for a continuous period of not less than 3 years immediately preceding the person's death, 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

(d)

a person who was not legally married to the deceased person at the time of the person's death but who, for a continuous period of less than 3 years immediately preceding the person's death, 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 Commissioner, was wholly or substantially dependent upon the deceased person at the time of the deceased person's death;..."

61. This provision discriminated against persons who were living together on a defacto basis in that, if their relationship had lasted for less than three years, they had to satisfy the Commissioner that they were wholly or substantially dependent upon the deceased person at the time of that person's death. The purpose of introducing section 8A was to remove this discrimination. Mr Duncan, who introduced the Bill, said in his second reading speech:

"The purpose of the amendments is to remove discrimination on the basis of marital status from certain provisions of the superannuation schemes. The removal of discrimination in superannuation on the grounds of sex and marital status has been identified in the National Agenda for Women as a priority area for Government action. Action has already been taken to review and limit the exemption in the Sex Discrimination Act 1984 for superannuation and to increase superannuation coverage for women." (Australia, HR, 1992, Weekly Hansard, No.14 p 2159)

62. It is clear therefore that the new section 8A was designed to include persons of the opposite sex who lived in marriage-like relationships regardless of whether they were legally married. The fact that the persons must be of the opposite sex is inherent, as we have said, in the use of the words "husband" and "wife".

63. It follows that we must affirm the decision under review. It gives us no joy to do so. There is no doubt that the applicant and Mr Corva had a close marriage-like relationship and that they conformed to the requirements of section 8A in all respects except for their gender. Yet the 1992 amendments, which were designed to remove discrimination on the ground of marital status, provide no redress in relation to the form of discrimination which is illustrated by this case.

64. We affirm the decision under review.

I CERTIFY THAT THIS AND THE . .................. PRECEDING PAGES ARE A TRUE COPY OF THE DECISION AND REASONS FOR DECISION HEREIN OF JUSTICE JANE MATHEWS, PRESIDENT

SIGNED............................

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ASSOCIATE

DATED : / /