Wednesday, 15 October 2008
Same-Sex Relationships (Equal Treatment in Commonwealth Laws — Superannuation) Bill 2008
In summing up I will also speak to the second reading amendment, unless the opposition want to speak to it prior to that. In any case, I would like to thank the honourable senators for their contributions to the debate. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 introduces the first part of the Rudd government’s historic reform to amend Commonwealth laws that discriminate on the basis of sexuality. It honours the Rudd government’s election commitment to implement the recommendations of the Human Rights and Equal Opportunity Commission’s Same-sex: same entitlements report. This bill will amend the acts that govern the Commonwealth government defined benefits civilian and military superannuation schemes, the judicial pension scheme and the pension scheme for the Governor-General. It will also amend related taxation legislation affecting superannuation death benefits and other acts that regulate the superannuation industry. The bill will enable superannuation death benefits to be paid to same-sex partners and the children of same-sex couples. This cannot happen under the current law, which is arbitrary and discriminatory. Currently, under the Commonwealth superannuation scheme, only a surviving spouse or child of a scheme member may receive a death benefit upon the death of the scheme member. The definitions of ‘spouse’ and ‘child’ currently exclude same-sex partners and children of scheme members who are in same-sex relationships where a scheme member does not have a biological link to the child.
The government will move parliamentary amendments to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill, but let me allay the concerns of senators about the substance of the government’s amendments. They simply make changes consistent with the major recommendations of the Senate committee’s report and reflect community input into the Senate Legal and Constitutional Affairs Committee inquiry, and I thank the committee for its work in consideration of the bill.
There is nothing unusual about a government circulating amendments to a bill, after a Senate committee has reported, in response to matters raised before the Senate committee. That is what the government has done. And, no doubt, senators would welcome the fact that the government has acted on those matters and has done so immediately upon the Senate committee delivering its report. These amendments give effect to the majority recommendations of the committee.
The government recognises that there were concerns that the removal of references to ‘marital’ and ‘husband’ or ‘wife’ undermine the institution of marriage. That was never the intention of the bill. These references will be reinstated. There were also concerns that the use of the term ‘product of the relationship’ in relation to the expanded definition of ‘child’ would create interpretational difficulties. As a result, the amendments will build on the bipartisan support for amendments to the Family Law Act and adopt the new definition of ‘child’ in that act. Indeed, this was one of the recommendations of the Senate committee.
Another aspect of the reform is the removal of remnant marital status discrimination by amending the definition of ‘stepchild’. This will mean that, for the first time, stepchildren of opposite- and same-sex de facto couples will be legally recognised for the purposes of the Commonwealth Superannuation Scheme. Recognition of same-sex family relationships will be improved by inserting a definition of ‘relative’ and a tracing rule.
A standard definition of ‘de-facto partner’ will be inserted into the Acts Interpretation Act 1901, and will only be used when referred to by another Commonwealth act. This definition is currently contained in the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. However, as registered relationships are referred to in this bill, it is necessary to ensure that the reform is included in the superannuation bill. Previously, of course, it had been intended to make regulations for this purpose under the Judges’ Pensions Act 1968. The definition of ‘de facto partner’ will be widely used in Commonwealth law and will apply to same-sex and opposite-sex relationships. Under this standard definition, when it is triggered, a couple who are in a prescribed relationship and who are registered under a prescribed state or territory relationship law will be taken to be in a de facto partnership. Of course, regulations will need to be developed to prescribe the kinds of relationships and which state registers are to be recognised.
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 the Commonwealth defined benefit superannuation schemes will be able to do so. Should this bill be 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.
A range of issues were raised in the debate. I want to turn to some of the specific comments raised by senators opposite. I welcome the contribution in the debate by Senator Brandis and his acknowledgement of bipartisan support for marriage laws. Senator Humphries also made the very important point that strengthening the recognition of same-sex relationships in no way undermines the very important institution of marriage nor is marriage strengthened by discriminating against other types of relationships.
Criticisms have been raised that there are different tests for de facto relationships—or de facto partnerships, as they are to be known in Commonwealth law. There are various definitions used throughout the Commonwealth statute book. Other acts such as the Social Security Act 1991, the Migration Act 1958 and the Veterans’ Entitlements Act 1986 currently have their own approach to defining who is a member of a couple or a de facto partner or a child of a person. As I explained in my summing-up speech on the Family Law Amendment Bill, given the specific issues that are dealt with by these acts, a slightly different approach to the definition of ‘de facto partnership’ or ‘child’ is adopted. However, the insertion of a standard definition of ‘de facto partner’ into the Acts Interpretation Act 1901 will help to address the problem of the unnecessary proliferation of divergent definitions.
I note the comments from some opposition senators that this bill should recognise interdependent relationships. This option was explicitly rejected by the Human Rights and Equal Opportunity Commission in its Same-sex: same entitlements report because it does not give full equality to same-sex couples. The Rudd government recognises the important and tireless contribution of carers to the community. However, the issue of whether to recognise interdependent relationships such as caring relationships is quite a complex issue. For example, if interdependent couples were to be included as part of wider reforms there is a danger that people who could least afford it could be worse off. It would be inappropriate to recognise interdependency only in terms of beneficial Commonwealth programs.
It has been suggested by Senator Hanson-Young that the bill should oblige private trustees to recognise same-sex relationships. The amendments are aimed at ensuring equivalent treatment of same-sex couples and opposite-sex relationships under the Superannuation Industry (Supervision) Act 1993.
The amendments do not force private superannuation funds to recognise same-sex relationships. Indeed, this would be, quite frankly, outside the scope of superannuation regulation. Forcing funds to recognise same-sex relationships or other relationships would have major policy implications for what is commonly referred to as the SI(S) Act legislative framework. There would be a particular problem in relation to defined benefit funds with this proposal. Requiring a private defined benefit fund to expand the class of potential beneficiaries may have financial implications for the funds as there may not be sufficient money in the fund to meet the new expected liability for the benefit. Additional cost would include increased employer contributions, insurance costs and increased administration costs. Typically employer-sponsored contributions to the fund vary periodically depending on actuarial advice to ensure that there will be sufficient money in the fund to meet expected liabilities before benefits.
The changes in the bill are designed to facilitate the recognition of same-sex relationships by superannuation funds. The approach is consistent with recent changes in respect of dependents, which permit but do not require funds to pay superannuation death benefits to a person in an interdependency relationship with a member. However, where a superannuation fund does not recognise same-sex relationships or provide binding death benefit nominations, individuals are able to move their accumulation benefits from one fund to another one that does, under portability arrangements. A recent survey of superannuation funds found there were a considerable number of funds that did recognise same-sex relationships. Results suggest that most, if not all, not-for-profit super funds are able to pay death benefits to same-sex partners and about half the funds have done this.
In conclusion, 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. The reforms in this bill will make a practical difference to the lives of a group of Australians who for too long have suffered discrimination in superannuation at a Commonwealth level. It is fair and equitable and it is, in fact, the right thing to do. I welcome the strong support that is now being expressed for the bill by the shadow attorney-general. It is time now for the opposition to demonstrate that support and pass this bill without further delay. I thank the Senate.
That the amendment (Senator Hanson-Young’s) be agreed to.