Senate debates

Wednesday, 12 November 2008

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

In Committee

6:01 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

Consistent with the previous decision in the Senate, I do not propose to move government amendment (2) on sheet QH400, which also deals with commencement. I simply move government amendment (6) on sheet QH400, Treasury amendments:

(6)    Schedule 4, page 26 (line 2) to page 30 (line 14), omit the Schedule, substitute:

Schedule 4—Treasury amendments
Part 1—Superannuation law
Retirement Savings Accounts Act 1997

1  Subsections 20(2) and (3)

Repeal the subsections, substitute:

        (2)    The spouse, in relation to a person, includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

        (3)    Any child, in relation to a person, includes:

             (a)    a stepchild, an ex-nuptial child or an adopted child of the person; and

             (b)    a child of the person’s spouse; and

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975.

2  Application of amendments of the Retirement Savings Accounts Act 1997

The amendments of the Retirement Savings Accounts Act 1997 made by this Schedule apply to the 2008-2009 year of income and later years.

Small Superannuation Accounts Act 1995

3  Section 4

Insert:

child, of a person, means a child of the person within the meaning of the Superannuation Industry (Supervision) Act 1993.

4  Section 4 (definition of spouse)

Repeal the definition (not including the note), substitute:

spouse of a person includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

5  Application of amendments of the Small Superannuation Accounts Act 1995

The amendments of the Small Superannuation Accounts Act 1995 made by this Schedule apply to the 2008-2009 year of income and later years.

Superannuation (Government Co-contribution for Low Income Earners) Act 2003

6  Subsection 54(3) (definition of spouse)

Repeal the definition, substitute:

spouse of a beneficiary of a Government co-contribution includes:

             (a)    a person (whether of the same sex or a different sex) with whom the beneficiary is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    a person who, although not legally married to the beneficiary, lives with the beneficiary on a genuine domestic basis in a relationship as a couple.

7  Application of amendments of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003

The amendments of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 made by this Schedule apply to the 2008-2009 income year and later income years.

Superannuation Industry (Supervision) Act 1993

8  Subsection 10(1) (definition of child)

Repeal the definition, substitute:

child, in relation to a person, includes:

             (a)    an adopted child, a stepchild or an ex-nuptial child of the person; and

             (b)    a child of the person’s spouse; and

             (c)    someone who is a child of the person within the meaning of the Family Law Act 1975.

9  Subsection 10(1)

Insert:

relative of an individual means the following:

             (a)    a parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the individual or of his or her spouse;

             (b)    a spouse of the individual or of any other individual referred to in paragraph (a).

Note:   Subsection (6) may be relevant to determining relationships for the purposes of paragraph (a) of the definition of relative.

10  Subsection 10(1) (definition of spouse)

Repeal the definition, substitute:

spouse of a person includes:

             (a)    another person (whether of the same sex or a different sex) with whom the person is in a relationship that is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; and

             (b)    another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple.

11  At the end of section 10

Add:

        (5)    For the purposes of paragraph (a) of the definition of relative in subsection (1), if one individual is the child of another individual because of the definition of child in subsection (1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

12  Subsection 17A(9) (paragraphs (b) and (c) of the definition of relative)

Repeal the paragraphs, substitute:

             (b)    a spouse or former spouse of the individual, or of an individual referred to in paragraph (a).

13  After subsection 17A(9)

Insert:

     (9A)    For the purposes of paragraph (a) of the definition of relative in subsection (9), if one individual is the child of another individual because of the definition of child in subsection 10(1), relationships traced to, from or through the individual are to be determined in the same way as if the individual were the natural child of the other individual.

14  Subsection 65(6)

Repeal the subsection.

15  Subsection 70E(4) (definition of relative)

Repeal the definition.

16  Application of amendments of the Superannuation Industry (Supervision) Act 1993

(1)    Subject to subitems (2) and (3), the amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply to the 2008-2009 year of income and later years.

Amendments affecting section 65

(2)    The amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply for the purposes of the operation of section 65 of that Act in relation to:

             (a)    money lent on or after the day on which this Act receives the Royal Assent; and

             (b)    any other financial assistance commenced to be given on or after the day on which this Act receives the Royal Assent.

Amendments affecting section 66

(3)    The amendments of the Superannuation Industry (Supervision) Act 1993 made by this Schedule apply for the purposes of the operation of section 66 of that Act in relation to assets acquired on or after the day on which this Act receives the Royal Assent.

17  Transitional provision—in-house assets

(1)    If:

             (a)    an asset of a superannuation fund consists of:

                   (i)    a loan or an investment made before the day on which this Act receives the Royal Assent; or

                  (ii)    a loan or an investment made after that day under a contract entered into before that day; or

                 (iii)    an asset that becomes subject to a lease or a lease arrangement before that day; and

             (b)    apart from this item, the asset would be an in-house asset of the fund at any time after the commencement of this Schedule; and

             (c)    the asset would be an in-house asset of the fund only because of the amendments of the Superannuation Industry (Supervision) Act 1993 (the SIS Act) made by this Schedule;

then, for the purposes of the operation of Part 8 of the SIS Act on or after the commencement of this Schedule, the asset is not an in-house asset of the fund.

(2)    For the purposes of subparagraph (1)(a)(iii), if:

             (a)    a lease or a lease arrangement, enforceable by legal proceedings, in respect of an asset was entered into before the day on which this Act receives the Royal Assent; and

             (b)    the lease or lease arrangement came into force on or after that day;

the asset is taken to have become subject to the lease or lease arrangement before that day.

Part 2—Taxation law
Income Tax (Transitional Provisions) Act 1997

18  After section 295-465

Insert:

295-485A Meaning of spouse and child for 2008-2009 income year

        (1)    This section applies only for the 2008-2009 income year.

        (2)    For the purposes of section 295-485 of the Income Tax Assessment Act 1997, paragraph 295-485(1)(a) of that Act applies as if:

             (a)    the reference to a spouse or former spouse of the deceased were a reference to:

                   (i)    a spouse of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008; or

                  (ii)    an individual who was formerly such a spouse; and

             (b)    the reference to a child of the deceased were a reference to a child of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008.

19  At the end of Division 302

Add:

302-195A Meaning of death benefits dependant for 2008-2009 income year

        (1)    This section applies only for the 2008-2009 income year.

        (2)    For the purposes of Subdivision 82-B of Division 82, Division 302 and section 303-5 of the Income Tax Assessment Act 1997, the definition of death benefits dependant in section 302-195 of that Act applies as if paragraphs (a) and (b) of the definition were replaced with the following paragraphs:

             (a)    a spouse of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 or a person who was formerly such a spouse; or

             (b)    a child of the deceased within the meaning of the Superannuation Industry (Supervision) Act 1993 as in force immediately after the commencement of Schedule 4 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008, who is aged less than 18.

Part 3—Application of amendments of the Family Law Act 1975

20  Application of amendments of the Family Law Act 1975

For the purposes of an amendment made by this Schedule that refers to the Family Law Act 1975:

             (a)    the amendments of that Act made by items 5 and 21 of Schedule 1, and Schedule 3A, to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Financial Matters Act) are taken to have commenced on 1 July 2008; and

             (b)    the first regulations made for the purposes of subparagraph 60H(1)(b)(ii) of the Family Law Act 1975 inserted by Schedule 3A to the De Facto Financial Matters Act are taken to have commenced on 1 July 2008; and

             (c)    the first regulations made for the purposes of subsection 60HB(1) of the Family Law Act 1975 inserted by Schedule 3A to the De Facto Financial Matters Act are taken to have commenced on 1 July 2008.

I will provide the Senate with some information in respect of this amendment. Government amendment (6) omits the previous schedule 4 to the bill, replacing it with a new schedule 4. Amendment (6) effects a number of amendments to the content of schedule 4. These include items 1, 4, 6 and 10, which will harmonise the approach to the definition of ‘spouse’ in the bill with that of the general law reform bill. Items 1, 4, 6 and 10 repeal the definitions of ‘spouse’ in relevant acts to be amended and substitute a new definition. The new definition will expand the ordinary meaning of ‘spouse’ in the amended acts to include, first, ‘another person, whether of the same sex or a different sex, with whom the person is in a relationship that is registered under a law of a state or territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section’ and, second, ‘another person who, although not legally married to the person, lives with the person on a genuine domestic basis in a relationship as a couple’.

Items 1 and 8 refer to a child within the meaning of the Family Law Act rather than the ‘product of the relationship’ definition of a child. Items 9, 11, 12, 13, 14 and 15 will insert the new approach to recognition of family relationships developed for the general law reform bill into the SI(S) Act, the Superannuation Industry (Supervision) Act. Items 14 and 15 repeal, respectively, section 65(6) of the SI(S) Act and the definition of ‘relative’ provided in section 70E(4) of that act as a consequence of the insertion of a general definition of ‘relative’ for the SI(S) Act by item 11. Item 16 inserts application provisions in relation to the amendments to the SI(S) Act. Item 17 introduces a transitional provision in relation to part 8 of the SI(S) Act and item 20 inserts an application provision relating to the commencement of amendments to the Family Law Act made by the family law amendment bill. This will allow the new definitions of the Family Law Act to apply for the purposes of amendments made by this schedule referring to that act.

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