ADJOURNMENT: Superannuation: Same Sex Partners
10 December 1996
Mr ALBANESE (Grayndler) (10.48 p.m.) —I rise tonight to raise the issue of superannuation funds and benefits payable to same sex partners. My electorate of Grayndler is a culturally and socially diverse community. In this context, I consider it crucial that a local member represent the diversity of their electorate and continually push for a fair go for all community members. The Gay and Lesbian Rights Lobby, the Australian Council for Lesbian and Gay Rights, trade unions and superannuation industry representatives have recently joined together to push for an overhaul of existing superannuation laws. In short, they certainly need reform.
Thanks to 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 superannua tion. Unfortunately, while these reforms saw superannuation money flowing to more workers on the grounds that they were being wrongly excluded, all people are not equal in terms of the benefits they are entitled to when the time comes for superannuation funds to make payment to superannuants’ partners, where that partner happens to be gay or lesbian.
Superannuation funds have in the past—and continue to do so—relied on the provisions of Australian superannuation legislation to argue that they are prevented from paying benefits to the partners of gay and lesbian contributors. Furthermore, the vast majority of funds have followed the advice issued in a circular by the Insurance and Superannuation Commission which states that `spouse’ does not include a partner of the same sex.
The Administrative Appeals Tribunal has considered the meaning of the term `spouse’ as defined in the superannuation act. In the matter of Brown v. Commissioner for Superannuation, No. V94/638, Justice Jane Mathews found that the partner of a deceased gay man, a contributor to the Commonwealth superannuation scheme, was ineligible to receive death benefits under the scheme. The trustees of the fund successfully argued that a same sex spouse was not included in the definition.
Further discrimination occurs through the taxation system, whereby death benefits paid through a superannuation fund to a dependant are exempted from tax under the Income Tax Assessment Act 1936. The definition of `dependency’ is similar to that in the superannuation legislation, which means that a same sex partner may be in a position of paying tax on any benefits received from the contributor’s estate, when an equivalent heterosexual partner would not.
The most recent edition of Capital Q weekly newspaper highlights the discriminatory impact. I invite members to picture the following scenario. Adam and Sue are co-workers. Sue has been living in a de facto relationship with John for the past four years. Adam and Steve have been living together in a mutually supportive relationship for the past [start page 8175] 15 years. On their way to a work event, Adam and Sue are killed in a car accident.
Adam and Sue have both been members of their respective funds since 1984 and have both accumulated $100,000. Sue died without leaving a will or completing a nominated beneficiary form. On her death, her super scheme identifies John as her spouse. John receives that $100,000.
Adam has been more efficient. He has made a will, naming Steve as his sole nominated beneficiary, and has updated his superannuation beneficiary form naming Steve. The trustees of the fund are able to identify Steve as a beneficiary, but there is no legal scope for the trustees to identify Steve as Adam’s spouse. As a result, he is considered a non-dependant and is required to pay $15,000 tax on the $100,000 benefit. John, in contrast, has received the whole amount. If Adam had not made a will and updated his beneficiary form, it is likely that the trustees would not have been able to pay some, or even any, of the money to Steve.
It is plainly unfair that all workers and their partners are not able to receive the same benefits from their equal contributions to superannuation schemes. I daresay, Mr Speaker, that this is not an issue which the Howard government is likely to embrace in the near future. It is disturbing—but probably not surprising—to see in retrospect that, when John Howard claimed during the election campaign that he stood for all of us, he only meant us as in white, middle-class, Anglo-Saxon, employed members of nuclear families like himself—certainly not gay and lesbian people. The `family values’ rhetoric suddenly becomes a bit hollow when we start talking about families headed by gay and lesbian people.
I was pleased to see that the member for Wentworth (Mr Andrew Thomson) was mentioned in last week’s Sydney Star Observer as being a supporter of superannuation reform. I wish the member for Wentworth every success in his endeavours to convince his colleagues from the Lyons Forum and other coalition members of the value of giving all Australian workers a fair go, regardless of their sexuality. I look forward to real reform on this issue on the basis of a non-discriminatory policy.