House debates

Wednesday, 28 May 2008

Same-Sex Relationships (Equal Treatment in Commonwealth Laws — Superannuation) Bill 2008

Second Reading

9:29 am

Photo of Robert McClellandRobert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | | Hansard source

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 sexuality.

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-of-government 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 are:

  • the Commonwealth Superannuation Scheme
  • the scheme under the Superannuation Act 1922
  • the Defence Force Retirement and Death Benefits Scheme
  • 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 Scheme.

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 same-sex 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 area.

To quote HREOC’s report of its inquiry on same-sex discrimination:

‘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 case.’

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 reform legislation. 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 reform.


The bill also allows for the equal recognition of children who are the product of same-sex and opposite-sex relationships.

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 fail definitional requirements and be denied benefits.

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 community.

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.

Debate (on motion by Mr Farmer) adjourned.