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Superannuation (Entitlements of same sex couples) Bill 2001

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The Parliament of the

Commonwealth of Australia












Superannuation (Entitlements of same sex couples) Bill 2001






Explanatory Memorandum







Circulated by Mr Albanese



This bill overcomes discrimination against same sex couples in the payment of superannuation benefits.


The Commonwealth has moved in recent years to ensure that superannuation is compulsory for all Australian workers and superannuation is increasingly becoming a significant element of employees’ wage packages.


Couples of the same sex in a relationship that would be considered a de facto relationship if the partners were of opposite sexes may not enjoy the same superannuation benefits as heterosexual couples, while making identical superannuation contributions.


Discrimination includes:


·         On retirement of the contributor, refusal to pay a joint pension for the contributor and his or her same sex partner;

·         On retirement of the contributor, refusal to pay a lump sum benefit in respect of a same sex partner;

·         On the death of the contributor, refusal to pay death benefits to a same sex partner, either by reversionary pension or lump sum benefit;

·         On the death of the contributor, failure to investigate or acknowledge the claim to dependency of a child of a same sex couple when the contributor is not the biological parent of the child; and

·         On the death of the contributor, payment of death benefits to the estate of the contributor rather than to the same sex partner as a dependant.


This discrimination is inconsistent with other Commonwealth and State legislation and international undertakings.


This bill seeks to remedy the scope for such discrimination by amending the Superannuation Industry (Supervision) Act 1993.








The provisions of this bill will have no impact on government expenditure. Item 5 of Schedule 1 ensures that the provisions of the bill do not increase the charge or burden on the people.




Clause 1 —   This cites the short title of the bill.

Clause 2 —   This specifies that the bill commences on the day on which it receives the Royal Assent.

Clause 3 —   This provides that the Act listed in the schedule is amended as set out in the schedule.


Schedule 1 — Amendment of the Superannuation Industry (Supervision) Act 1993


Item 1 —   This item amends the definition of dependant to include a de facto partner in addition to a spouse and any child of the person or of the person’s partner.


Item 2 —   This item repeals the definition of spouse . The effect of the repeal is to remove the extension of the meaning of the term spouse to include a de facto partner.


Item 3 —   This item inserts a definition for the term de facto partner . The definition includes any person, including a person of the same sex, who lives with the person on a genuine domestic basis as the partner of the person. This definition, when read in conjunction with the amended definition of dependant , has the effect of allowing a same sex partner to be considered as a dependant for the purposes of the Act.


Item 4 —   This item inserts a new provision in section 52 (Covenants to be included in governing rules) which introduces a requirement not to discriminate on the basis of race, colour, sex, sexual preference, transgender status, marital status, family responsibilities, religion, political opinion or social origin.


Item 5 —   This item provides that the amendments do not apply to certain public sector superannuation schemes. The purpose of this provision is to ensure that the amendments contained in this bill do not result in an increase in government expenditure through the payment of increased benefits to members of public sector superannuation schemes. This item has been inserted only because of the restrictions preventing private Members from introducing bills which will cause an increase in government expenditure.