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Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2007

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5271-Revised 4

 

2004-2005-2006-2007

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2007

 

(1)     Schedule 1, page 16 (after line 4), after item 57, insert:

57A  Subsection 3(1)

Insert:

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the two people are not legally married:

                     (a)  in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                              (i)  the length of their relationship;

                             (ii)  how long and under what circumstances they have lived together;

                            (iii)  whether there is a sexual relationship between them;

                            (iv)  their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                             (v)  the ownership, use and acquisition of their property, including any property that they own individually;

                            (vi)  their degree of mutual commitment to a shared life;

                           (vii)  whether they mutually care for and support children;

                          (viii)  the performance of household duties;

                            (ix)  the reputation, and public aspects, of the relationship between them;

                             (x)  the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

                     (b)  a de facto relationship may be between two people of the same gender.

Note:          A person in a marital relationship is taken to be legally married - see subsection 8A(2) of the Superannuation Act 1976 .

57B  Sections 6A and 6B

Omit “marital”, substitute “beneficiary”.

[extension of benefits to same sex de facto partners - and beneficiary relationships]

(2)     Schedule 1, page 26 (after line 6), before item 102, insert:

101A  Subsection 4(1)

Insert:

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the two people are not legally married:

                     (a)  in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                              (i)  the length of their relationship;

                             (ii)  how long and under what circumstances they have lived together;

                            (iii)  whether there is a sexual relationship between them;

                            (iv)  their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                             (v)  the ownership, use and acquisition of their property, including any property that they own individually;

                            (vi)  their degree of mutual commitment to a shared life;

                           (vii)  whether they mutually care for and support children;

                          (viii)  the performance of household duties;

                            (ix)  the reputation, and public aspects, of the relationship between them;

                             (x)  the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

                     (b)  a de facto relationship may be between two people of the same gender.

101B  The whole of the Act

Amend so that every occurrence of “marital” is omitted and substituted by “beneficiary”.

 [extension of benefits to same sex de facto partners - and beneficiary relationships]

(3)     Schedule 1, page 30 (after line 26), after item 120, insert:

Superannuation Act 1990

120A  At the end of subsection 23(2)

Add “and section 23A”.

120B  After section 23

Insert:

23A  Procedures for merit selection of appointments to the Board

             (1)  The Minister must by writing establish a code of practice for selecting a person to be appointed by the Commonwealth or a Minister to the Board that sets out general principles on which the selections are made, including but not limited to:

                     (a)  merit; and

                     (b)  independent scrutiny of appointments; and

                     (c)  probity; and

                     (d)  openness and transparency.

             (2)  In making appointments to the Board under clause 4 of the Trust Deed, the Minister must comply with the code of practice.

             (3)  As soon as practicable after establishing a code of practice under subsection (1), the Minister must cause the code to be published in the Gazette .

             (3)  The Minister must, not later than the fifth anniversary after the code of practice has been established, conduct a review of the operation of the code.

             (4)  A review conducted in accordance with subsection (3) must invite public comment on the code.

             (5)  A code of practice established under this section is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .

[merit selection]

(4)     Schedule 1, page 31 (after line 7), after item 125, insert:

Superannuation Act 1976

125A  The whole of the Act

Amend so that every occurrence of “marital” is omitted and substituted by “beneficiary”.

125B  Section 8A

Repeal the section, substitute:

8A Beneficiary relationship

             (1)  For the purposes of this Act, a person had a beneficiary relationship with another person at a particular time if the person has a marital or de facto relationship with the person and ordinarily lived with that other person on a permanent and bona fide domestic basis at that time.

             (2)  For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person on a permanent and bona fide domestic basis at a particular time only if:

                     (a)  the person had been living with that other person for a continuous period of at least 3 years up to that time; or

                     (b)  the person had been living with that other person for a continuous period of less than 3 years up to that time and the Board, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person on a permanent and bona fide domestic basis at that time.

             (3)  For the purposes of this Act, a beneficiary relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).

             (4)  For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:

                     (a)  the person was wholly or substantially dependent on that other person at the time;

                     (b)  the persons were legally married to each other at the time;

                     (c)  the persons had a child who was:

                              (i)  born of the relationship between the persons; or

                             (ii)  adopted by the persons during the period of the relationship;

                     (d)  the persons jointly owned a home which was their usual residence.

             (5)  For the purposes of this section, a person is taken to be living with another person if the Board is satisfied that the person would have been living with that other person except for a period of:

                     (a)  temporary absence; or

                     (b)  absence because of the person’s illness or infirmity.

[beneficiary relationship]

(5)     Schedule 1, page 31 (after line 7), after item 125, insert:

Superannuation Industry (Supervision) Act 1993

125A  Subsection 10(1) (definition of dependant )

After “interdependency”, insert “or de facto”.

125B  After section 10A

Insert:

10B  De facto relationship

             (1)  For the purposes of this Act, 2 persons have a de facto relationship if they are living together as a couple on a genuine domestic basis, where the two people are not legally married:

             (2)  In determining whether 2 people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                     (a)  the length of their relationship;

                     (b)  how long and under what circumstances they have lived together;

                     (c)  whether there is a sexual relationship between them;

                     (d)  their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                     (e)  the ownership, use and acquisition of their property, including any property that they own individually;

                      (f)  their degree of mutual commitment to a shared life;

                     (g)  whether they mutually care for and support children;

                     (h)  the performance of household duties;

                      (i)  the reputation, and public aspects, of the relationship between them;

                      (j)  the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person.

             (3)  A de facto relationship may be between two people of the same gender.

             (4)  The rights, entitlements and obligations of a person in an independency relationship extend in all respects to a person in a de facto relationship.

 [definitions]

(6)     Schedule 1, page 33 (after line 5), before item 134, insert:

133A  Subsection 4(1)

Insert:

de facto partner means a person in a de facto relationship.

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the relationship is not a marital relationship:

                     (a)  in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                              (i)  the length of their relationship;

                             (ii)  how long and under what circumstances they have lived together;

                            (iii)  whether there is a sexual relationship between them;

                            (iv)  their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                             (v)  the ownership, use and acquisition of their property, including any property that they own individually;

                            (vi)  their degree of mutual commitment to a shared life;

                           (vii)  whether they mutually care for and support children;

                          (viii)  the performance of household duties;

                            (ix)  the reputation, and public aspects, of the relationship between them;

                             (x)  the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

                     (b)  a de facto relationship may be between two people of the same gender.

 [definitions]

(7)     Schedule 1, page 34 (after line 30), at the end of the Schedule, add:

149  Section 263 (definition of spouse )

Omit “de facto spouse” (wherever occurring), substitute “de facto partner”.

150  Subsection 282(1)

Omit “a male”, (wherever occurring), substitute “an”.

151  Subsection 282(1)

After “his”, (wherever occurring), insert “or her”.

[extension of provisions to same sex de facto couples]

(8)     Schedule 2, page 35 (after line 25), after item 5, insert:

5A  Subsection 3(1)

Insert:

de facto relationship means a relationship between two people living together as a couple on a genuine domestic basis, where the two people are not legally married:

                     (a)  in determining whether two people are in a de facto relationship, the circumstances of the relationship must be considered as a whole. Without limiting the generality of this paragraph, those circumstances may include:

                              (i)  the length of their relationship;

                             (ii)  how long and under what circumstances they have lived together;

                            (iii)  whether there is a sexual relationship between them;

                            (iv)  their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them;

                             (v)  the ownership, use and acquisition of their property, including any property that they own individually;

                            (vi)  their degree of mutual commitment to a shared life;

                           (vii)  whether they mutually care for and support children;

                          (viii)  the performance of household duties;

                            (ix)  the reputation, and public aspects, of the relationship between them;

                             (x)  the existence of a statutory declaration signed by both persons stating that they regard themselves to be in a de facto relationship with the other person;

                     (b)  a de facto relationship may be between two people of the same gender.

[definitions]