Australia: Same Sex Relationships – Changes To Commonwealth Superannuation Funds

Last Updated: 11 December 2008
Article by Andrew McCormack

The Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008 has passed the Senate with amendments and has been remitted to the House of Representatives.

This Bill is part of a suite of new legislation introduced by Federal Attorney-General Robert McLelland to equalise rights between married and same sex couples and children of those relationships. It will enable them to access superannuation benefits after a member of a superannuation fund dies.

The Bill, whilst considered by some to be controversial, allows for equal treatment of members of Commonwealth superannuation schemes where they are in a same sex relationship.

The Bill amends Commonwealth superannuation schemes, including:

  • Defence Force Retirement and Death Benefits Act 1973;
  • Defence Forces Retirement Benefits Act 1948;
  • Federal Magistrates Act 1999;
  • Governor-General Act 1974;
  • Judges Pensions Act 1968;
  • Law Officers' Act 1964;
  • Parliamentary Contributory Superannuation Act 1948;
  • Superannuation Act 1922; and
  • Superannuation Act 1976.

The effect of these amendments will be to change particular definitions in the Acts to enable the same-sex partners and children of a same-sex relationship of Commonwealth public servants, military personnel, parliamentarians, judicial officers and other statutory legal officers (such as the Solicitor-General) access superannuation payments and pensions paid under defined benefit superannuation funds.

Under the present superannuation schemes, a same sex partner of a member of a Commonwealth superannuation scheme cannot obtain direct access to the reversionary death benefit once the member of the fund has died.

The Bill aims to amend the definitions to ensure that death benefits can be conferred on de facto same sex partners and children of a same sex relationship.

The legislation will also amend the superannuation schemes to enable a child of an opposite sex relationship to have the same entitlement to access a reversionary death benefit as a child of a same sex relationship.

The fundamental change will be two particular definitions within the Acts. Presently, most Acts refer to a marital relationship and the proposed amendments will amend the term from "marital relationship" to "couple relationship". The explanatory memorandum to the Bill notes that the term "couple relationship" will incorporate relationships between persons of the same sex in specified circumstances, as well as those relationships that have previously been referred to as "marital" relationships.

The definition of couple relationship which will be inserted into the relevant Acts was discussed by the Senate in Committee. The Government's proposed definition is:

For the purposes of [the relevant] Act, a person had a couple relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's partner on a permanent and bona fide domestic basis at that time.

This definition closely resembles the definition of a de facto relationship and, during the Committee stage in the Senate, Senator Barnaby Joyce specifically questioned the Government on the criteria that would be used to determine whether a couple relationship existed.

Senator Penny Wong (representing the Attorney- General in the Senate) clarified the Government's position that, in respect of parties who are married – by virtue of the fact that they are married – will be considered to be in a couple relationship. Parties who are not married and who may fall under the definition of couple relationship will need to satisfy similar criteria to those set out in the amendments to the Acts Interpretation Act 1901 which will address a new definition of "de facto relationship" and "genuine domestic basis". Parties who are in a relationship that has been registered under a State or Territory law in relation to same sex relationships will be considered to be in a couple relationship.

The terms "husband" or "wife" will be replaced with "partner".

A new definition will be inserted into the relevant Acts in respect of a child where a child is "a child of a couple relationship". This is defined as a child who was:

  1. born of the couple relationship;
  2. adopted by the people in the couple relationship during the period of the relationship; or
  3. a product of the couple relationship.

Not surprisingly, the Bill is not supported by the Family First Party, but has the support of the Liberal Party and certain members of the National Party.

The Bill has passed the Senate, with both Government and Opposition amendments and will now return to the House of Representatives for the members of the House to agree to the Senate amendments.

No date has yet been set for the Bill to come into effect, but it may well be the case that the provisions will commence at the same time as the amendments to the Family Law Act relating to de facto relationships which are likely to commence in March 2009.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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