Stewart, Miranda --- "Domesticating Tax Reform: The Family in Australian Tax and Transfer Law" [1999] SydLawRw 18; (1999) 21(3) Sydney Law Review 453
[*] Miranda Stewart is Acting Assistant Professor at New York University School of Law. I would like to thank the anonymous referee and Kristen Walker for very constructive and encouraging comments, as well as Dan Shaviro and Jenni Millbank for their help and support.
[1] Keynote Address, ACOSS National Congress, 5 November 1998, <www.pm.gov.au/media/pressrel/speech/1998/ACOSS.htm>.
[2] Fineman M, ‘The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies’ (1995) at 27.
[3] More than 20 amending acts make up the package of reforms in A New Tax System that impose the GST, repeal other taxes and implementing compensatory income tax and transfer measures. Acts No. 55–86 received royal assent on 8 July 1999. See <www.taxreform.gov.au> for the government description of A New Tax System and links to the new legislation.
[4] See for example, ALP, A Fairer Tax System With No GST, delivering ‘real benefits for families on low and middle incomes’ <www.alp.org.au/campaign/policy/taxpackage/index.html>; ACOSS, Media Release, 13 August 1998, discussing ‘support for struggling families’ <www.acoss.org.au/media/1998/mr130898.htm>.
[5] I am paraphrasing Judith Butler in her discussion of ‘sex’ as a regulatory ideal: Bodies That Matter: On The Discursive Limits of ‘Sex’ (1993) at 1.
[6] Australian income tax law is being rewritten and the law is to be found in both the Income Tax Assessment Act 1997 (Cth) (ITA97) and the Income Tax Assessment Act 1936 (Cth) (ITA36). I refer in general to these two Acts as the ITA, and to specific provisions in each Act as required. Income tax is administered by the Australian Taxation Office (ATO). Other relevant income tax legislation includes the Income Tax Rates Act (1986) (Cth) and the Medicare Levy Act 1986 (Cth).
[7] The SSA is administered by Centrelink in the Department of Family and Community Services (FACS), formerly known as the Department of Social Security (DSS).
[8] The Family Assistance benefits will be administered by a new Family Assistance Office, described as a ‘virtual’ organisation that will use existing infrastructure of Centrelink and the ATO, established by A New Tax System (Family Assistance) (Administration) Act 1999: Second Reading Speech, Senator Hill, Senate Hansard 22 June 1999. I do not discuss the many other laws that distribute or reallocate benefits through society, such as public housing or education, nor do I address superannuation. For a critical discussion of superannuation, see Dunn K, ‘Splitting the Difference: Superannuation, Equality and Family Law’ (1998) 12 AJFL at 214; Millbank J, ‘Hey Girls, Have We Got a Super Deal for You: Reform of Superannuation and Matrimonial Property’ (1993) AJFL 104; Cox E & Leonard H, Superfudge or Subterfuge: Do Women Need Superannuation? Options for Equity. Women’s Economic Think Tank (Wettank) Camperdown NSW (1992); Bryce Q, Women and Superannuation, Occasional Paper No 7, HREOC (1991); Australian Senate Legal & Constitutional References Committee, Report of Inquiry into Sexuality Discrimination (December 1997); Superannuation Entitlements of Same- Sex Couples, HRC Report No 7 (April 1999).
[9] Philipps L, ‘Discursive Deficits: A Feminist Perspective on the Power of Technical Knowledge in Fiscal Law and Policy’ (1996) 11(1) Canadian J of L & Soc 141 at 164. Low income people pay significant taxes, albeit not always income tax. A 1994 Australian Bureau of Statistics survey found that consumption taxes levied by all Australian governments amounted to 22.6% of the income of the poorest 10% of households: ACOSS, Tax Reform Pack (September 1997).
[10] Young CFL, ‘Public Taxes, Privatizing Effects, and Gender Inequality’ in Boyd S, Challenging the Public/Private Divide: Feminism, Law and Public Policy (1997) at 307–308; Surrey S & McDaniel P, Tax Expenditures (2nd ed, 1985); Krever R, ‘Tax Expenditures: The Other Spending Program’ (1985) 10 Legal Service Bull 63. Tax expenditures are quantified as revenue foregone, and the exact nature of the ‘equivalence’ between tax and spending laws is disputed; clearly, it is an oversimplification to say that the systems are identical.
[11] I take the notion of domestication from Robson R, ‘Mother: The Legal Domestication of Lesbian Existence’, in Fineman MA & Karpin I (eds), Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood (1995) at 103.
[12] Fineman, n2.
[13] Quoted by O’Shea P, ‘Howard Comes Out: A New-Age Guy on Gay Issues’ Melbourne Star Observer (26 January 1996). At the same time, Howard did say: ‘I think I speak for mainstream Australia in saying that the days of people feeling that homosexuals should be discriminated against are gone and I think that’s good.’
[14] Smart C, Feminism and the Power of Law (1985) at 9.
[15] Foucault M, ‘Truth and Power’ in Gordon C (ed) Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (1980). I follow Smart, in applying a Foucaultian approach to legal discourse, ibid.
[16] Eagleton T, Ideology: An Introduction (1991) at 194.
[17] Ibid.
[18] Foucault rejected the notion of ideology as unhelpful, but I agree with Eagleton that it is useful in discerning a broader effect of power – what is sometimes also termed the ‘dominant’ discourse. See Philipps, n9, for a discussion of discourse and ideology.
[19] Walker K, ‘The Participation of the Law in the Construction of (Homo) Sexuality’ (1995) Law in Context 52 at 58.
[20] Fineman, n2 at 23.
[21] Smart, n14 at 4.
[22] Philipps, n9 at 146, 151.
[23] Gilding M, ‘The Making and Breaking of the Australian Family’ (1991), extracted in Parker S, Parkinson P & Behrens J, Australian Family Law in Context: Commentary and Materials (1994) at 11.
[24] ABS Media Release 87/98 (August 26, 1998), available from <http://www.statistics.gov.au> . About 56% of men and 58% of women are expected to marry, a decline of 19% for men and 16% for women since 1977. See also Parker S, et al, ibid, Part A.
[25] ABS Media Releases 128/97 (September 30, 1997), 48/98 (April 22, 1998), <http://www.statistics.gov.au> .
[26] Bailey-Harris R, ‘Financial Rights in Relationships Outside Marriage: A Decade of Reforms in Australia’ (1995) 9 Int’l J of L & Fam 233.
[27] Judicial interpretation of Family Law Act 1975 (Cth) s43, Marriage Act 1961 (Cth) s46 and common law precedent dating back to Hyde v Hyde and Woodman (1866) LR 1 P&D 130, approved in R v L [1991] HCA 48; (1991) 174 CLR 379, Cth v HREOC & Anor [1998] 138 FCA (27 Feb 1998) and Garcia v National Australia Bank Ltd [1998] HCA 48. It has been held in the superannuation context that ‘lived together as husband and wife’ can apply only to a malefemale relationship: Re Brown and Commissioner for Superannuation [1995] AATA 130; (1995) 21 AAR 378 (AAT).
[28] Fineman, n2 at 143.
[29] De Facto Relationships Act 1984 (NSW), s3.
[30] Austin GW, ‘Queering Family Law’ (1999) 8 Australasian Gay and Lesbian LJ 39; Millbank J, What do Lesbians do? Motherhood Ideology, Lesbian Mothers and Family Law (unpublished LLM Thesis, University of British Columbia, Canada, 1994). See also Walker K, n19, discussing the US context.
[31] Mason G, ‘(Out)laws: Acts of Proscription in the Sexual Order’ in Thornton M (ed), Public and Private: Feminist Legal Debates (1995) at 79. See Millbank J, ‘Lesbian Mothers, Gay Fathers: Sameness and Difference’ (1992) 2 Australian Gay and Lesbian LJ 21; ‘Lesbians, Child Custody and the Long Lingering Gaze of the Law’ in Boyd S (ed), n10 at 280; Robson R, Lesbian (Out)Law: Survival Under The Rule of Law (1992).
[32] The Property (Relationships) Legislation Amendment Act 1999 amends 26 NSW Acts that incorporate reference to a person’s spouse or family, including the De Facto Relationships Act 1984 quoted above. The reforms were sought by the NSW Gay and Lesbian Rights Lobby among others; see the Lobby report, Lesbians and Gay Men Have Families Too! (June 1994), available from <www.rainbow.net.au/~glr>l. The many reasons why legal recognition of samesex relationships is important are thoroughly canvassed in Millbank J, ‘If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?’ (1998) 12 AFLJ 99.
[33] De Lepervanche M, ‘The Family: In the National Interest?’ in Bottomley G, de Lepervanche M, and Martin J, (eds) Intersexions: Gender, Class, Culture, Ethnicity (1991); Elder C, ‘‘It was hard for us to marry Aboriginal’: Some Meanings of Singleness for Aboriginal Women in Australia in the 1930s’ (1993) 8 Lilith 114; Paisley F, ‘Feminist Challenges to White Australia, 1900– 1930s’ in Kirkby D (ed) Sex Power and Justice: Historical Perspectives of Law in Australia (1995) at 252; Brock P, ‘Aboriginal families and the law in the era of segregation and assimilation, 1890s – 1950s’ in Kirkby D (ed), Sex Power and Justice.
[34] HREOC, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997); Walker Y, ‘Aboriginal Family Issues’ (1993) 35 Family Matters 51; Sweeney D, ‘Aboriginal Child Welfare: Thanks for the Apology, But What About Real Change’ (1995) 3(76) Aboriginal Law Bull at 4. The Commonwealth continues to deny the wrongdoing in assimilationist child removal policies: see Manne R, ‘Whitewashing our Dark Past’ Sydney Morning Herald (22 March 1999).
[35] For a discussion of the erasure of different forms of family in anthropological discourse, see Collier J, Rosaldo M, and Yanagisako S, ‘Is there a Family? New Anthropological Views’ in Thorne B & Yalom M (eds), Rethinking the Family (1982) 25 at 33.
[36] ALRC, The Recognition of Aboriginal Customary Laws, Report No 31 (1986), Vol 1 para 257, in Parker, n23 at 307.
[37] Parkinson P, ‘Taking Multiculturalism Seriously: Marriage Law and the Rights of Minorities’ (1994) 16 Syd LR at 473.
[38] See for example, Olsen FE, ‘The Family and the Market: A study of ideology and legal reform’ (1983) 96 Harv LR 1497; Gavigan S, ‘Paradise Lost, Paradox Revisited: The Implications of Familial Ideology for Feminist, Lesbian, and Gay Engagement to Law’ (1993) 31(3) Osgoode Hall LJ 589 and the many references cited throughout.
[39] O’Donovan K, Family Law Matters (1993) at 23.
[40] Boyd, n10 at 6; and see Thornton M, ‘The Cartography of Public and Private’ in Thornton M (ed), Public and Private: Feminist Legal Debates (1995).
[41] Interview with Fran Kelly, Radio National, March 16, 1998.
[42] Income Tax Assessment Act 1915 (Cth); see Smith JP, Taxing Popularity: The Story of Taxation in Australia (1993). The indivual unit is now specified in s4–1 1TA97. Since the 1970s in OECD countries ‘there has been an almost one-way move from joint to individual taxation’: Messere KC, ‘Taxation in Ten Industrialized Countries over the Last Decade: An Overview’ (1995) 10 Tax Notes International 512 at 518; Tax Policy in OECD Countries: Choices and Conflicts (1993) at 256.
[43] Below is the basic rate scale for individuals (plus the Medicare levy of 1.5% or 1.7%), with changes in A New Tax System, effective 1 July 2000. Current Rates A New Tax System $0–5,400 Nil $0–6,000 Nil $5,401–20,700 20% $6,001–20,000 17% $20,701–38,000 34% $20,001–50,000 30% $38,001– 50,000 43% $50,000–60,000 42% $50,001 + 47% $60,000+ 47%
[44] Taxation Review Committee, Full Report (31 January, 1975) 134 [10–16].
[45] Simons H, ‘Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy’ (1938), in Cooper GS, Krever RE and Vann RJ, Income Tax: Commentary and Materials (1989) at 70.
[46] See discussion by Cooper, id at 406.
[47] Apps P, ‘Individual Taxation vs Income Splitting’ in Head J & Krever R (eds) Tax Units and the Tax Rate Scale, Australian Tax Research Foundation Conference Series No 16 (1996) 81 at 83. There is an ongoing feminist debate about how the tax system should take into account the value of housework: see for example, Staudt N, ‘Taxing Housework’ (1996) 84 Georgetown LJ 1571.
[48] FCT v Hatchett [1971] HCA 47; (1971) 125 CLR 494 at 498 (Menzies J).
[49] For example, FCT v Faichney [1972] HCA 67; (1972) 129 CLR 38; FCT v Forsyth [1981] HCA 15; (1981) 148 CLR 203.
[50] (1955) 5 CTBR(NS) Case 50.
[51] Jayatilake v FCT (1991) 91 ATC 4516; Hyde v FCT (1988) 88 ATC 4748; Martin v FCT (1984) 2 FCR 260; Lodge v FCT [1972] HCA 49; (1972) 128 CLR 171.
[52] S 995–1 ITA97; Taxation Ruling TR 98/4.
[53] VT97/33, AAT No 12501 (18 December 1997), Senior Member Pascoe. These factors are similar to those defining a ‘couple’ in the SSA, discussed in Part 4 below.
[54] [1904] HCA 32; (1907) 2 CLR 1.
[55] Smith, n42 at nn45, 19 and Appendix.
[56] Division 17, ITA1936; s160AD. See Australian Tax Practice & Taxation Institute of Australia, Australian Tax Handbook 1999 Ch 25.
[57] Rebates are more redistributive than tax deductions: a deduction of $100 is worth $47 to a taxpayer with a marginal tax rate of 47%, but only $20 to a taxpayer with a marginal tax rate of 20%. In contrast, a tax rebate of $100 is worth $100 to both taxpayers, as long as the taxpayer with a rate of 20% pays sufficient tax to claim the full rebate.
[58] S 159J ITA36. The maximum rebate ranges from $584 for an invalid relative to about $1,500 for a dependant spouse or child-housekeeper, where the taxpayer has a dependent child up to the age of 16, or full-time student up to the age of 25. The rebate must be reduced by $1 for every $4 by which the separate net income exceeds $282.
[59] S 159J(4) ITA36; the same rule applies for other dependant rebates, but the amount of separate net income that may be earned varies.
[60] S 159J(6) ITA36. Net income is determined ‘in accordance with ordinary accounting and commercial principles’, with some modifications, so all relevant outgoings are allowed: TD 98/ 5; Case N49 (1981) 81 ATC 243 at 244.
[61] AAT Case 142 [1987] AATA 851; (1987) 18 ATR 4045.
[62] Australian Tax Handbook 1999, n51 [25 210]; Taxation Ruling IT 2337.
[63] S 159T–159TC ITA36.
[64] Division 5; s20C Income Tax Rates Act 1986.
[65] s20D Income Tax Rates Act 1986, which actually refers to the ‘breadwinner’ and ‘breadwinner’s partner’: s20D(4).
[66] Explanatory Memorandum to A New Tax System (Personal Income Tax Cuts) Bill 1998, [2.10].
[67] FCT v Everett [1980] HCA 6; (1980) 143 CLR 440 at 457 (Murphy J).
[68] Ibid.
[69] (1958) 32 ALJR 187.
[70] FCT v Rippon [1992] FCA 487; (1992) 24 ATR 119; Full Federal Court, citing Heerey J at first instance: (1992) 23 ATR 209 at 214.
[71] Deputy FCT v Purcell [1921] HCA 59; (1921) 29 CLR 464. Discussed by Challoner NE, ‘Arrangements to Avoid Income Tax: A Consideration of the Effect of Newton’s Case’ (1958) 32 ALJ 109, 115; see also Trebilcock MJ, ‘Section 260: A Critical Examination’ (1964) 38 ALJ 237.
[72] Norman v FCT [1963] HCA 21; (1963) 109 CLR 9; Shepherd v FCT [1965] HCA 70; (1965) 113 CLR 385.
[73] [1980] HCA 6; (1980) 143 CLR 440.
[74] Tax Rulings IT 2501 and IT 2608. It has been suggested that Everett ‘was the prototype for hundreds, perhaps thousands, of assignments by professional persons of part of their interest in a professional partnership to their spouses’, many of which are still current today: Lehmann G & Coleman C, Taxation Law in Australia (4th ed, 1996) at 908.
[75] Grbich J, ‘The Position of Women in Family Dealing: The Australian Case’ (1987) 15 Int’l J of the Sociol of L 309 at 315.
[76] Boucher T (later to be Commissioner of Taxation), ‘Part IVA: Ordinary business and family dealings’, Supplement to Taxation in Australia (August 1981) cited in Grbich, ibid at 325. See also Tax Rulings IT 2121 and IT 2330.
[77] Income Tax Laws Amendment Bill (No. 2) 1981 (Cth) (Second Reading Speech).
[78] Part 3–1 ITA97 includes net capital gains in assessable income of the taxpayer to be taxed at the taxpayer’s marginal rate. Where an asset, such as a right to income, is assigned for no consideration in a transaction which is not at ‘arm’s length’, market value is deemed paid for the asset, thus resulting in a capital gain taxable to the transferor: s 116–30(1) ITA97.
[79] ATO Media Release 99/10, referring to Taxation Statistics 1996/1997.
[80] Note 70 at 68.
[81] (1996) 20 Fam LR 49.
[82] Millbank J, ‘An Implied Promise to Parent: Lesbian Families, Litigation and W v G (1996) 20 Fam LR 49’ (1996) 10 AJFL 112 at 120. See also the other cases cited by Millbank at nn26, 27 and 31.
[83] Id at 116.
[84] Taxation Ruling TR 98/4, paras 62, 67.
[85] Peate v FCT (1962) 9 AITR 3 at 5 (Menzies J); Tax Rulings IT 2403 and IT 2330.
[86] Tax Ruling TR 94/8 sets out the requirements for a partnership to be a ‘legitimate’ business arrangement, including active participation by all partners, public perceptions, joint ownership of assets and other factors; the partner must also have real and effective control of her share of income: s94 ITA36. Tax Ruling IT 2330 sets out the limits for operation of a business through a trust, following court decisions which have put some limits on the trust technique of divesting personal services income: FCT v Gulland; Watson v FCT; Pincus v FCT (1985) 85 ATC 4765; Tupicoff (1984) 84 ATC 4851. However, Liedig v FCT [1994] FCA 1058; (1994) 28 ATR 141 may expand the reach of trust law analysis.
[87] Gribch, n75 at 320: Eg, Case S73 (1985) 85 ATC 530. See also Woellner R, Vella T, Burns & Barkoczy J, 1997 Australian Taxation Law (7th ed, 1997) at 972–976.
[88] Grbich J, ‘The Tax Unit Debate Revisited: Notes on the Critical Resources of a Feminist Revenue Law Scholarship’ (1991) 4 Canadian J Women and the Law 512 at 516 and n10.
[89] Note 75 at 326.
[90] Fineman M, ‘The Nature of Dependencies and Welfare ‘Reform’’ (1996) 36 Santa Clara L Rev 287; see also Fineman n2.
[91] Graycar R and Morgan J, The Hidden Gender of Law (1990) at 149. For a summary overview of the SSA, see Sutherland P (with Anforth A), Annotations to the Social Security Act 1991 (4th ed, 1998). A survey of the legal history may be found in Neave M, ‘From Difference to Sameness – Law and Women’s Work’ [1992] MelbULawRw 18; (1992) 18 MULR 768, from 789–807; Treble A, ‘Permissible Discrimination: Sex Discrimination Under the Social Security Act’ (1995) 20 Alt LJ 117.
[92] Lake M, ‘A Revolution in the Family: The Challenge and Contradictions of Maternal Citizenship in Australia’; Howe R & Swain S, ‘Saving the Child and Punishing the Mother: Single Mothers and the State 1912–1942’ in Howe R (ed), Women and The State: Australian Perspectives (1993); Cass B, ‘Redistribution to Children and to Mothers: A History of Child Endowment and Family Allowances’ in Baldock CV & Cass B (eds), Women, Social Welfare and The State in Australia (2nd ed, 1988).
[93] The requirement that Aboriginal recipients not be ‘nomadic or primitive’ was not removed until 1966: Marcus A, ‘Australian Governments and the Concept of Race: An Historical Perspective’ in de Lepervanche M & Bottomley G (eds), The Cultural Construction of Race (1988).
[94] Senator Jocelyn Newman, Minister for Social Security and for the Status of Women, speech at the OECD, Australian Country Paper, 12–13 November 1996.
[95] Shaver S, ‘Poverty, Gender and Sole Parenthood’ in Fincher R & Nieuwenhuysen J (eds), Australian Poverty Then and Now (1998) at 276.
[96] At June 1998, 93% of recipients were women, down from 98% in 1980. The ABS estimates that 13% of lone parents with dependent children are male: FACS, Some Common Questions about Lone Parents Answered (November 1998), <www.facs.gov.au/dss/dss.nsf/aboutdss/programs/ parent/loneparent.htm>; id at 285.
[97] There has been considerable writing about feminist action and strategies during this period; see for example, Watson S (ed), Playing the State: Australian Feminist Interventions (1990).
[98] S 831 SSA; Second Reading Speech to Social Security (Family Payment) Amendment Bill 1992 (Cth), in Sutherland P, n91 at para 831.02.
[99] Second Reading Speech to Social Security (Parenting Allowance and other Measures) Legislation Amending Act 1994 (Cth) in Sutherland, n91 at Part 2–18.01.
[100] The study by Edwards M, Financial Arrangements within Families, National Women’s Advisory Council, (Canberra: National Women’s Advisory Council: 1981) was crucial evidence of this; for other studies with similar results, see Kornhauser M, ‘Love, Money and the IRS: Family, Income-Sharing and the Joint Income Tax Return’ (1993) 45 Hastings LJ 63 and references cited therein.
[101] The ‘wife pension’ finally ceased operation on 30 June 1995: s146V SSA. See Bradbury B, Social Policy Research Centre, Income Support for Parents and Other Carers, Paper No 127 (March 1996) at 9.
[102] In 1996, almost 50% of children under 12 were in childcare arrangements (although only 8% of children under age 1) and two thirds of these children were cared for informally, by relatives or friends: ABS statistics, cited in Child Care Funding, Report of the Senate Community Affairs References Committee (December 1998), Ch2. In 1996, the Economic Planning Advisory Commission Task Force, in its report Future Childcare Provision in Australia (November 1996), concluded that it was efficient for the government to subsidise childcare.
[103] Explanatory Memorandum accompanying the Social Security Legislation Amendment (Parenting and Other Measures) Act 1997 in Sutherland, n91 at Part 2–10.01; see also Centrelink, You and Your Family – March 1998, <www.centrelink.gov.au/internet/internet.nsf/ WebPagesByTitle/Publications+Index>.
[104] Family Assistance Act ss21, 22 (especially s22(4)). In addition, various FTA provisions are also tailored for adults who care for children from past relationships or in ‘blended’ families, including ss27 to 29 and ss59, 60.
[105] s4(2) and (3) SSA; Sutherland, n91 at para 4.01–4.25. The statutory definition is derived in large part from the judgment in Lambe v DSS [1981] FCA 171; (1981) 4 ALD 362.
[106] Re VYG and DSS [1993] AATA 189; (1993) 31 ALD 371; Sutherland, n91 at para 4.02.
[107] Re H and DSS (1989) 17 ALD 639.
[108] Re Nardozzi (1987) AAT 3757, 8 September 1987; Re Spencer and DSS (1987) 13 ALD 497; contrast Re Needer [1993] AATA 172; (1993) 74 SSR 1074. Sutherland, n91 at para 4.22.
[109] See Neave, n91 at 796 and references cited; Treble,
[110] Re Erdmann (1996) AAT 11847, 9 May 1997; Re Villani and DSS [1990] AATA 68; (1990) 20 ALD 49; Sutherland, n91 at para 4.21. There is evidence of the DSS monitoring and investigating sexual relationships of single mothers in the past: Campbell H, ‘Single Mothers Deemed to be Prostitutes’ (1990) 15 Legal Service Bulletin 44.
[111] FACS, n96. In 1997–98, 11,010 lone parents were subject to such a review, 2.2% of all recipients.
[112] Child Support (Registration and Collection) Act 1988 (Cth); Child Support (Assessment) Act 1989 (CSAA), administered by the ATO with reference to FACS. A detailed review of the child support scheme may be found in Parker n23, Ch 13; see also DSS Annual Report 1997–98 at para 4.5.3.
[113] Section 4(1) CSAA (Cth).
[114] Kliger B, ‘The Child Support Scheme: who is reaping the benefits?’ (1988) 13 Legal Service Bulletin 16; Collins R, ‘Pursuing Errant Fathers: Maintenance Systems in Three Western Countries’ in Edgar D (ed), The State and Caring (1993).
[115] FACS, n96 at question 13. The previous legal requirement, s252 SSA, which operated together with s91A CSAA, was repealed effective 20 March 1998.
[116] DSS Annual Report, n112.
[117] Graycar R, ‘Family Law and Social Security in Australia: The Child Support Connection’ (1989) 1 AJFL 70 at 82–83, in Parker, n23 at 513–4.
[118] The result of s 5 CSAA in combination with s 60H Family Law Act 1975 (Cth) and applicable state and territory laws, which provide for a uniform approach that the sperm donor shall have no rights or liabilities in respect of the use of the semen.
[119] Second Reading Speech, Sexuality Discrimination Bill 1996 Senate Hansard, 28 May 1995, quoting Senator Spindler’s 1995 speech.
[120] Foucault, n15 at 141.
[121] As indicated above, I do not discuss superannuation in this essay. Several reports have recommended changing the definition of spouse in superannuation legislation to include samesex couples (see n8). The Sexuality Discrimination Bill 1996 would make changes affecting superannuation law, and on 12 July 1998, Mr Albanese MP introduced the Superannuation (Entitlements of Same Sex Couples) Bill 1998, which would amend superannuation legislation to include as de facto spouses same sex couples living together on a ‘geniune domestic basis’.
[122] Senate Legal and Constitutional Committee, Report, n8 at Ch 6 Recommendations 1, 4 and 5, xv–xvi.
[123] The Greens (WA), Sexuality Platform, 31 August 1998.
[124] Taxation Laws Amendment Bill (No. 3) 1997 (Cth), Income Tax Rates Amendment Bill (No. 1) 1997 (Cth).
[125] Parliamentary Debates (Senate Hansard) 25 August 1997 at 5608–9.
[126] Id at 5611.
[127] Phillipps L & Young M, ‘Sex, Tax and the Charter: A Review of Thibaudeau v Canada’ (1995) 11 Review of Constitutional Studies 221, 222–3. Philipps and Young cite Canadian judge Letourneau JA in Thibaudeau v Canada (1994) 114 DLR at 261 describing the Canadian Income Tax Act as ‘essentially economic legislation, which may even be described as amoral’.
[128] Gavigan, n38 at 609; and see ‘Legal Forms, Family Forms, Gender Norms: What is a Spouse?’ Paper presented at the Annual Meeting of the Law & Society Association (Aspen, Colorado, June 1998); Boyd S, ‘Best Friends or Spouses? Privatization and the Recognition of Lesbian Relationships in M v H’ (1996) 13 Canadian J Family Law 321.
[129] Head, n47, Introduction, vii.
[130] McIntyre M, ‘Marital Income Splitting in the Modern World: Lessons for Australia from the American Experience’ in Head, n47 at 1.
[131] Taxation Review Committee, n44.
[132] Becker G, A Treatise on the Family (2nd ed, 1991).
[133] These are standard tax policy criteria; see eg,Treasury, Reform of the Australian Tax System (Draft White Paper) (1985), extracted in Cooper, n45 at 23–24.
[134] Young, n137 at 307. See for example Apps, n47 and n137; Glenn Jones and Elizabeth Savage, ‘Income Splitting: Equity, Efficiency and Work Disincentives’ in Head, n47.
[135] Brooks N, ‘The Irrelevance of Conjugal Relationships’ in Head, n47 at 47.
[136] See Edwards and Kornhauser, n100.
[137] Apps, n47; see also ‘Tax Reform and the Tax Unit’ (1984) Australian Tax Forum 467; ‘Tax Discrimination by Dependent Spouse Rebates or Joint Taxation’ (1981) 53 Aust Q 262.
[138] For a critique of the mere extension of economic models of the heterosexual family to same-sex families, see Badgett MVL, ‘Gender, Sexuality, and Sexual Orientation: All in the Feminist Family?’ (1995) 1 Feminist Economics 121.
[139] NSW Lesbian and Gay Rights Lobby, Report, n32.
[140] Fineman, n2.
[141] Grbich, n88 at 522.
[142] Bradbury, n101 at 23.
[143] Ibid.
[144] Note 90 and n2.
[145] Note 90 at 292–293.
[146] Neave, n91 at 806.
[147] Fineman, n90 at 293.
[148] Badgett, n138 at 63.
[149] ATO Taxation Statistics 1996/1997 show that the gap between men’s and women’s earnings has been increasing over time; Cleary P, ‘Rich are getting ... you guessed it’, Sydney Morning Herald (17 March 1999), observes that the gap between the highest and lowest incomes has widened in 1996/97 compared with the previous year.