Same sex super changes introduced to the House

Same sex super changes introduced to the House

Attorney-General Robert McClelland has now introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Laws- Superannuation) Bill 2008 to the House. I have set out his second reading speech below…

First Reading
Bill and explanatory memorandum presented by Mr
Bill read a first time.
Second Reading
Mr McCLELLAND (Barton—Attorney-General)
(9.29 am)—I move:
That this bill be now read a second time.
The Same-Sex Relationships (Equal Treatment in
Commonwealth Laws—Superannuation) Bill 2008
introduces the first part of historic reforms to amend
Commonwealth laws that discriminate on the basis of
It is with immense pride that I introduce this bill,
marking a new chapter in Labor’s commitment to promoting
and protecting human rights in Australia—a
commitment that is based on the belief of the fundamental
equality of all persons.
The bill will amend the acts which govern the
Commonwealth government (defined benefit) superannuation
schemes and related taxation legislation and
acts that regulate the superannuation industry.
Discrimination on the basis of sexuality has largely
been removed from state and territory laws. This bill
will take equality for same-sex couples and their children
to the next level by introducing long overdue
Commonwealth reforms, removing discrimination
from superannuation laws as the first step.
HREOC report
I want to acknowledge the important role of the
Human Rights and Equal Opportunity Commission’s
inquiry which focused on discrimination in financial
and work related entitlements and benefits.
HREOC found that same-sex couples do not enjoy
the same entitlements as couples who are either married
or in opposite sex de facto relationships. Indeed,
the report gave a number of actual instances that any
fair-minded person would accept were unfair and inappropriate
in modern Australia.
On coming to office, we commissioned a whole-ofgovernment
audit of Commonwealth legislation building
on HREOC’s excellent work.
The audit confirmed HREOC’s findings. The audit
further identified that discrimination in the legal treatment
of same-sex couples and their children occurs in a
range of non-financial areas, such as administrative
and evidence laws. We have dealt with the issue of evidence
laws earlier today.
The audit also identified a number of statutory regulations
and instruments which include possibly discriminatory
terms. The government will review, and
where necessary, amend these instruments to remove
any differential treatment of same-sex couples.
This bill marks the first stage of the government’s
commitment to address this inequitable treatment in a
wide range of laws.
This bill will amend acts governing Commonwealth
government (defined benefit) superannuation schemes.
It will also amend related taxation and superannuation
regulatory acts.
The superannuation schemes covered by this bill
• the Commonwealth Superannuation Scheme
• the scheme under the Superannuation Act 1922
• the Defence Force Retirement and Death Benefits
• the Defence Forces Retirement Benefits Scheme
• the Judges’ Pensions Scheme
• the Federal Magistrates Disability and Death
Benefits Scheme
• the Governor-General Pension Scheme, and
• the Parliamentary Contributory Superannuation
The reforms in this bill are time critical. This is because
it will allow reversionary death benefits to be
paid to de facto same-sex partners and their children
where they currently have no entitlement.
For example, until these acts are amended, were a
scheme member to die, his or her same-sex partner
would not be entitled to receive a reversionary death
benefit. Similarly, children of that relationship may
also be unfairly deprived of a benefit. I would ask opposition
members to note that fact in their consideration
of granting cooperation in the passage of this legislation.
For same-sex partners and children of the relationship
to be deprived of those reversionary benefits, I
am sure all fair-minded members would agree, is discriminatory,
unfair and intolerable, and it is time that
we did something about it.
It is the case that superannuation legislation generally
refers to a spouse, which currently excludes samesex
partners. While same-sex partners may be able to
access some superannuation concessions as ‘dependants’—
for example, concessional treatment of death
benefits—this bill will make sure there is equal treatment
of same-sex couples and their children in this
To quote HREOC’s report of its inquiry on same-sex
‘One of the main purposes of superannuation
schemes is to encourage savings during life which will
support a person’s family after he or she dies …
[s]uperannuation is often a person’s largest asset apart
from the family home. Most people expect that their
superannuation entitlements will be inherited by a
partner, children or other dependants. But for people in
same sex couples and families, this is not always the
This bill will remedy these injustices by allowing
same-sex couples and their children to access the benefits
and entitlements they have been denied for so long.
The amendments in these acts revise the existing
definitions of ‘spouse’ and ‘child’, creating new definitions
that equally recognise opposite-sex and same-sex
relationships and partners, and the children they produce.
The bill will expand the notion of de facto relationship
by adding the new concept of a ‘couple relationship’,
which includes same-sex partners.
The bill will enable a relationship registered under
prescribed state laws to be evidence of the existence of
a same-sex relationship when considering who may be
entitled to a death or pension benefit. Regulations for
this purpose will be made under the Judges’ Pensions
Act 1968, which I administer, and for ease of administration
are applied to the other Commonwealth
schemes amended by the bill.
The preparation of this bill, which relates only to
Commonwealth (defined benefit) superannuation
schemes, has highlighted certain issues regarding the
framing of amendments. For example, we will further
consider the way relationships registered under state
and territory laws will be recognised in other Commonwealth
laws when developing the broader reforms
to be introduced in the second part of the same-sex
legislation reform program. It will also be necessary to
consider the need for consistency in Commonwealth
legislation in relation to the use of terms such as ‘partner’ and ‘spouse’, but these issues can be given further
consideration after we proceed with the expeditious
passage of this very important first tranche of legislative
The bill also allows for the equal recognition of
children who are the product of same-sex and oppositesex
A child for this purpose is the product of a couple
relationship, where one partner is linked biologically to
the child or where one partner is the birth mother of the
child. By applying this definition, opposite-sex and
same-sex families are treated equally.
Furthermore, the new definition will solve the problems
arising from some surrogacy arrangements where
even children of an opposite-sex relationship may currently
fall definitionally outside the requirements of the
defined benefits legislation.
This approach imports a new standard of fairness
and consistency into the law in this area and provides
functional recognition of same-sex families in the
The reforms in this bill will recognise real family
situations. Recognition is necessary if we are, as a
community, to remove discrimination against same-sex
families and their children.
Superannuation Industry (Supervision) Act 1993
The bill will also amend the Superannuation Industry
(Supervision) Act 1993, which establishes the superannuation
regulatory framework for regulated superannuation
funds. This will mean that superannuation
funds, should they wish to do so, will be able to
make allowance for same-sex couples and their children
in the same way that Commonwealth (defined
benefit) superannuation schemes will be able to do so.
If this bill is passed, I encourage all superannuation
funds across Australia to make provision for same-sex
couples and their children so that this discrimination is
completely removed from the superannuation industry.
This bill marks the first step in removing discrimination
against same-sex couples and their children in acts
governing Commonwealth (defined benefit) superannuation
schemes and related acts that have not moved
with the times.
I commend and I am greatly impressed by the dedicated
work of a number of highly talented public servants,
and specifically public service lawyers, in the
preparation of these reforms. They have done so diligently,
under the pressure of time, and their work has
been outstanding.
The reforms in this bill will make a practical difference
to the lives of a group of fellow Australians who
for far too long have suffered discrimination in superannuation
at a Commonwealth level. It is fair, it is equitable
and it is the right thing to do.
I commend the bill to the House and I look forward
to the opposition’s support.

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