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Thursday, 26 March 1998
Page: 1776


Mr ALBANESE (10:51 AM) —I am pleased to support both the amendment moved by my colleague, the member for Wills (Mr Kelvin Thomson), and this bill today. I could not agree more with the parliamentary secretary, the member for Braddon (Mr Miles), and I do not always agree with the honourable member on a lot of issues. I agree with him when he said in moving that the bill be read a second time that superannuation plays a significant role in the government's commitment to increase national saving, and in its retirement income policy.

Superannuation is, indeed, an important part of our national savings plan. Legislation introduced by the Keating Labor government has ensured that all Australians have access to superannuation. Some decades ago it was the case that, whilst parliamentarians had access to superannuation, ordinary workers and those who were not at the top of their field did not have access to this. However, the Labor government put in place measures that ensured that a minimum employer contribution for wage and salary earners in Australia is contributed for everyone.

Thanks to these initiatives introduced by the former Labor government, more than 93 per cent of full-time employees, 67 per cent of part-time employees, and 59 per cent of casual employees, are now covered by superannuation. It is the responsibility of government to ensure that people are encouraged to contribute to the superannuation scheme because it is a win/win situation. Individuals win because when they retire they are assured of an income. The nation wins because national savings increase, thereby delivering great benefits to the economy.

Furthermore, if superannuation is to play a role in the government's retirement incomes policy, then all people who contribute should have equal access to their super upon retirement. That is an issue that I wish to go to today. I am pleased to see that in the debate earlier today, the member for North Sydney (Mr Hockey) called upon the government for action to ensure that all people have equal access to their superannuation because at the moment that is not the case.

There is discrimination based upon people's sexual preference. There are a significant group of wage and salary earners in Australia who have little incentive to contribute to a superannuation scheme because their spouses do not have access to superannuation benefits upon their death. As the legislation currently stands, gay and lesbian couples are discriminated against. The Superannuation Legislation Amendment Bill 1997 aims to improve the monitoring and investigative powers of the Insurance and Superannuation Commissioner. This improvement in accountability must be applauded and must be supported.

The bill also aims to improve the efficiency and productivity of the Superannuation Complaints Tribunal, once again a positive initiative. But what power does the tribunal or the commissioner have to address the legitimate equity concerns of same sex couples? The answer is `none at the moment' because this legislation is currently flawed.

I have here some 450 letters addressed to federal members of parliament which I will be delivering today. These are from people who live in New South Wales in 42 different federal electorates and they are asking for the legislation to be amended. The letters draw attention to:

aspects of current Commonwealth superannuation law which are highly discriminatory, particularly in regards to the payment of superannuation death benefits to surviving partners of lesbian and gay relationships.

The letters go on to state:

In effect, the current legislation prevents equitable payment of a person's own money, should they pass away, to their chosen partner on the basis of their partner's sex.

The Labor Council of New South Wales is currently conducting a campaign which is being coordinated by members of the Inter-Union Group against Discrimination in Superannuation. They distributed pamphlets around the time of the Mardi Gras in Sydney, and they are also distributing pamphlets and information throughout workplaces to raise awareness of these issues.

I applaud the Labor Council of New South Wales for taking this stance because quite often issues like this are hard to take on. I remember that the first time I raised this issue in the parliament I was heckled by another member on the basis of making an inference about people's sexual preference. In the community there is still a great deal of discrimination and a great deal of angst concerning gays and lesbians. However, the Labor Council have shown that they are prepared to provide leadership on this issue, and I am pleased to hear that members on both sides of the House have indicated that they are prepared to show leadership on this issue also.

I would like you to consider this scenario which comes from the Labor Council campaign. This document says:

Susan and Juan have been in a de facto relationship for less than six months.

Richard and Vincent are lovers who have lived together for twelve years.

Juan and Richard are co-workers. On their way to a work-related event they are killed in a car accident.

Juan and Richard have both been in their industry superannuation fund for ten years and accumulated $100,000.

Juan died without a will, having never completed a nominated beneficiary form. Susan is identified as his spouse by the trustees of the fund. Susan received a $100,000 benefit tax-free.

And she should. However, Richard has gone a step further. He has done everything humanly possible to ensure that his partner receives the same treatment, receives benefits as a result of his death. The document continues:

Richard has maintained a will which names Vincent as the sole beneficiary, as does his superannuation form. Although this assists the trustees in making the payment to Vincent, he is considered a "non-dependant" and is required to pay $15,000 tax on the $100,000 benefit.

So Richard only receives $85,000 whereas if it was a heterosexual relationship the full $100,000 would be paid. The document goes on:

If Vincent had died without a will, Richard would quite possibly have received even less.

Certainly, if he had not nominated his partner as a beneficiary on his superannuation form, that would have made it even more difficult. The document continues:

He might have received none at all and could quite possibly have been forced into prolonged legal action over the decisions regarding Vincent's estate.

To me it really is an absurd situation to suggest, and I have had it suggested to me, that people might pretend that they were in a gay or lesbian relationship in order to receive benefits. Underlying it is an assumption that heterosexual couples would not do it and that somehow gay and lesbian couples are prepared to be more deceptive than heterosexual couples; whereas I think the chances of people lying about a relationship are far greater in a relationship which is totally accepted by everyone in society, as heterosexual relationships are. I do not think that a change in the legislation would lead to any abuse by people.

This bill is a lost opportunity to redress the wrong in this legislation. Part of the bill seeks to amend the Superannuation Industry (Supervision) Act of 1993. Item 8 of schedule 2 of this bill will insert a new subsection 59(1)(a) relating to death benefits. The amendment would allow the trustee to provide any benefits in respect of the member on or after the member's death to a person or persons mentioned in the notice being the legal personal representative or a dependant or dependants of the member.

There are two issues here: firstly, the amendment does not require the trustee to abide by the member's death benefit nomination. There is no mandatory requirement for a superannuation fund to change its rules to allow for such a nomination. Secondly, same sex couples continue to be excluded because of a very narrow definition of spouse. Spouse is defined in the same way as in the Income Tax Assessment Act of 1936 to include:

Another person who, although not legally married to the person, lives with the person on a bona fide domestic basis as the husband or wife.

The point for same sex couples is that they do not live as husband and wife and so cannot fall within this definition. To allow death benefits to be distributed to a member of a same sex couple, the definition of spouse would need to be changed.

With this amendment there are only two possible ways a partner in a same sex relationship can therefore access their partner's superannuation but, ultimately, this remains at the discretion of the trustee of the fund. The first possible way is if the partner can prove financial dependence. It is not necessary to prove financial dependence if you are in a heterosexual relationship; the access to your partner's superannuation is accepted, regardless of your own financial position. Therefore, what this bill is really doing, even though it is a step forward, is suggesting that people in same sex relationships are discriminated against if both partners are working and contributing to the nation's economy by earning their own living. What irony we have here when this superannuation bill will benefit someone if that person is a dependant of their partner. I think the right to work, to seek employment and to earn your own living should have nothing to do with sexual preference. I think that is the problem that is identified in the changes in this bill.

The other way that death benefits can be accessed is if the partner is named the sole beneficiary in the member's will. The estate can then be named as a death benefit nominee. However, apart from limited access to what should be a right, this also presents a number of problems. Instead of easily accessing the payment, the surviving partner may have to wait for probate, and the payment is likely to be taxed, therefore, at a rate of up to 21.5 per cent instead of being mostly tax free. Furthermore, the beneficiary will have to stand in line behind any creditors to the estate.

I am certain that the member for Braddon and his friends in the Lyons Forum would be horrified that the legislation makes it possible—albeit by the back door—for gay and lesbian couples to have limited access to superannuation death benefits. This amendment to section 59 of the SI(S) Act goes some way towards allowing same sex couples better access to death benefits. It does not address the fundamental issue of discrimination. Certainly it is possible to access death benefits but only by convoluted means and that is not an equitable solution. Access requires a good working knowledge of the legislation. That therefore excludes people who do not have the education or the economic means to access this information.

On top of discrimination on the basis of sexual preference, you effectively have discrimination on the basis of economic or class position in society. In order to address this issue of discrimination, the definition of spouse needs to be altered to include same sex partners. This is not only a view that exists on this side of the House. I have said in the House previously that, unless the government rectifies this legislation, which is possible I hope through the committee we are proposing the legislation be referred to, I have prepared a private member's bill to do just that. I am pleased that the member for Bradfield (Dr Nelson), who is here in the chamber today, last week in parliament said:

. . . I have considerable sympathy for what I understand will be a private member's motion to be brought on by the member for Grayndler (Mr Albanese) in relation to superannuation entitlements for same sex couples.

Today we have seen the member for North Sydney come out in support of superannuation for same sex couples and that is a very positive development.

I am sure the member for Chifley (Mr Price) would be prepared to come out in support of this legislation as well. I hope that this will not be necessary because I fully support the call of the member for Wills for the bill to be referred to the Senate Select Committee on Superannuation so that this issue of death benefits can be more closely examined.

I have hopes that this committee will concur with the findings of the Senate legal and constitutional committee's inquiry into sexual discrimination. The report was tabled in December 1997. Recommendation 7 states that all Commonwealth superannuation legislation and related legislation directly or indirectly affecting payment to people on the grounds of their sexuality or their gender status be reviewed and amended. That recommendation draws support across the party boundaries and is deserving of action. With this bill we have an opportunity to take action.

The report further recommended that the Senate Select Committee on Superannuation be asked to consider and report further on any barriers to superannuation contributors being able to nominate a specific beneficiary or beneficiaries of lump sums, pensions or other payments. That goes to the heart of the question. Why is it that someone who contributes to their superannuation fund simply cannot nominate their partner and that partner, regardless of their gender, have full and equitable access to their superannuation benefits?

In conclusion, I support the bulk of this bill. It is a positive step forward, but it can only be improved if it is referred to the Senate committee to ensure that the discrimination that I have identified is rectified. Australian society has moved a long way and, no matter what perspective you come from in this parliament, there is something to be said for rectifying this situation. If you are an economic rationalist, then surely you believe in the level playing field and therefore oppose discrimination on economic grounds. Even some people whom I would not agree with on many issues can support the thrust of what I am saying.

Secondly, if you are a liberal of the small `l' variety, you have to support this proposition that I am putting forward today that people should not be discriminated against in any area of their lives. In terms of superannuation, people will live much more comfortably knowing that if something were to happen to them—say, an accident on the way to work, as in the Labor Council example—their partner will not have to engage in legal action on top of the trauma that he or she will already be suffering. This bill ensures that people in a same sex relationship will be treated in exactly the same way as people in a heterosexual relationship.

I call upon the House to support the bill and the second reading amendment, and to take action on this issue. If the House does not support it, I will be introducing a private member's bill on this issue in the next session. Hopefully, I will be able to rectify it that way, with the support of all fair-minded members of the House of Representatives.

Mr Hockey interjecting