Jun 20, 2001

Superannuation (entitlements of same sex couples) Bill 2001

SUPERANNUATION (ENTITLEMENTS OF SAME SEX COUPLES) BILL 2001 First Reading


25 June 2001


Mr ALBANESE (Grayndler) (1.29 p.m.)—It is with some degree of sadness that I present to this parliament the Superannuation (Entitlements of same sex couples) Bill 2001, not because of what this bill seeks to achieve for Australians living in a same-sex relationship, but because I have had to do it now on four occasions. The government on three previous occasions has refused to allow time for it to be debated and voted upon by this parliament. It is outrageous that this government, a government elected on the mantra that it would govern for all Australians, has determined that removing discrimination from our laws is not worth the time of this parliament.

Discrimination occurs in a number of ways: on retirement of the contributor, a refusal to pay a joint pension for the contributor and his or her same-sex partner; on retirement of the contributor, a refusal to pay a lump sum benefit in respect of a same-sex partner; on the death of the contributor, a 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, a 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 and needs to be addressed as an issue of equity for Australian workers. The fact that superannuation is universal and compulsory particularly emphasises that the benefits of superannuation need also to be universal. Despite this, the government on three occasions now has been presented with an opportunity to show that it is genuine about ensuring that all Australians receive equal treatment before the laws of our nation, and it has failed on each and every occasion.

My bewilderment at the government’s stance is further heightened by the simple fact that the bill that I tabled today is not proposing radical reform. This bill does not seek to bequeath special rates to those living in same-sex relationships; rather it seeks to end the discrimination that currently exists in our superannuation laws. At present, same-sex couples can only access the same benefits as heterosexual couples through loopholes in the legislation. This is not good enough. Real equality is not about knowing where to find the loopholes but about having legislation that treats all people the same regardless of race, colour, sex, marital status, religion, political opinion, social origin or sexual preference.

The current discriminatory position was further exposed in a submission made by the Community and Public Sector Union to the Senate Select Committee on Superannuation and Financial Services, which I quote:

One of the key issues in terms of equality is that under the current superannuation law, heterosexual surviving partners whether married or de facto are considered to be “dependent” without any test and can gain access to superannuation death benefits. However, this is not the case for the surviving same-sex partner, who are either closed off from such benefits or they would have to demonstrate financial dependence upon the deceased partner.

In the words of one of my constituents who has written to me about this issue:

Quite frankly I think it is outrageous that I am victim to such discrimination—it’s not as if I am asking for specific consideration but merely to be able to choose how I decide the beneficiaries of my super fund.

That is a very important issue, because we are not talking about someone else’s money here, we are talking about money that has been contributed by workers into superannuation funds. Surely they should have the right to gain equal treatment regardless of whether they are in a same-sex relationship or a heterosexual relationship, and that is why those on this side of the House have been so determined to pursue this change. I am very pleased to have worked with the member for Melbourne Ports, Michael Danby, who has seconded this legislation yet again. He knows that in the Melbourne community, particularly in the electorate that he represents, this is an equitable demand, a fair demand and a demand which must be met if government is to be brought into the modern era. In my view, the position expressed by my constituent is neither controversial nor unreasonable. It is what any decent society would want for its citizens. I believe that most people in our community would agree that all Australians should have the right to nominate who will benefit from their accumulated superannuation.

In a practical sense, the bill seeks to remove current inequities in superannuation law by redefining the term `spouse’ to include same-sex couples who have lived together and have become financially dependent upon one another. This bill has received broad community support and is in line with what most Western countries have already implemented. It is a reform that is supported by the superannuation industry. It is a reform that is supported by the trade union movement. It is a reform that is supported by the Association of Certified Practising Accountants. It is a reform that is supported by the business sector. It is a reform that is supported by all those who are opposed to discrimination. It is a reform that would bring Australia into line with its international obligations. In its report to the parliament, the Human Rights and Equal Opportunity Commission concluded that current legislation was in breach of both the International Covenant on Civil and Political Rights and the International Labour Organisation’s Discrimination (Employment and Occupation) Convention. That report came about as a result of action taken by Greg Brown, whose partner, who had worked for some 17 years in the Public Service, had died. Greg Brown took action before the Administrative Appeals Tribunal and before the Human Rights and Equal Opportunity Commission. He took action to receive justice, not just on his own behalf but on behalf of all those people who may find themselves in his situation.

The human dimension of discrimination is something that we can never forget. At a time when an individual has lost their loving partner in life they should not have to be in a position whereby the discrimination faced by same sex couples is thrown back at them. It should be a time of bereavement, it should be a time of recovery and respect for that tragic loss of life, but currently people in this situation are forced into a battle over money. Those of us in the community who do not have to experience that should, however, be sympathetic to that plight, and the government should be sensitive to this issue.

This reform would complement the initiatives that have been undertaken by various state governments to end discrimination against same sex couples. In the New South Wales parliament after the re-election of the Carr Labor government we had a unanimous position put forward—Labor, Liberal, Nationals, Independents—saying that discrimination was not appropriate and supporting the legislation which gave same sex couples the same legal rights as heterosexual couples. This reform is also consistent with the recommendations of the Senate Select Committee on Superannuation and Financial Services, which reported on superannuation and recommended that this bill be passed. Most importantly, this reform is supported by all of those in our community who advocate for social justice and an end to discrimination in all of its forms.

The Body Shop entered the debate in 1999 with its `same sex, same rights’ campaign and showed that the corporate sector could actually be involved in promoting progressive social change and that the corporate sector also had an obligation to those people who provide it with its profits and with its ability to expand to actually advocate a non-discriminatory position within the community. Given the broad community support for this bill, why have the Commonwealth government judged this matter so unimportant that they have refused to allow it to be debated? If the government were being honest they would allow this debate to be brought on and would allow a vote on this and would allow those people opposite who are decent, who do believe in antidiscrimination and who do support this bill to be able to vote on it.

I note that the current Minister for Financial Services and Regulation, the member for North Sydney, indeed had agreed to second my bill prior to his becoming a minister. I thank him for that and acknowledge that there are many people of goodwill on the opposite side of the House who support this reform. Unfortunately, we have a Prime Minister who has stated that he does not support this reform. I have no problem with the Prime Minister personally wanting to live in a society in which there are nuclear families living behind white picket fences, as they did in the fifties, but there is no reason why he should demand that the rest of Australia stay back with him to keep him company. He should not use his position to hold up this reform.

The government have allowed this bill to lapse three times. They just keep hoping that if they stall long enough it will just go away. But it will not. Discrimination against same sex couples regarding their superannuation is just too blatant. A civilised society committed to human rights cannot possess legislation as discriminatory as the current legislation is. All this bill seeks to achieve is to allow those Australians living in a loving relationship to determine who will be the beneficiary of their superannuation benefits. If this mean-spirited government are unprepared to act and embody this principle in legislation, then a future Beazley Labor government will. We have enshrined in our platform, in section 19 of chapter 9 `Security And Opportunity For Older Australians’, the following:

Labor supports a fair and equitable retirement incomes system which:

… … …

• provides equitable treatment to same sex couples including for superannuation …

That backs up chapter 12 of our platform, `Human Rights and Equal Opportunity For All Australians’, which says:

Labor supports the enactment of legislation prohibiting discrimination on the ground of a person’s sexuality.

Those inclusions in the platform, unanimously adopted at our national conference in Hobart last year, have been backed up by public statements by the shadow Attorney-General, the member for Barton, Robert McClelland, announcing that a Labor government would reform this area of legislation as a priority upon coming to government. I am proud to have my name associated with this bill and all it seeks to achieve. It is sad that the government of this country has deemed the elimination of inequality and discrimination unworthy of further consideration by this parliament.

With regard to the Democrats’ conduct in relation to this bill, it is unfortunate that they have chosen, in spite of their alleged support for reform, to use this issue as a political football and allege that somehow there is some equivocation on our behalf towards this reform. They have done this on two occasions. Firstly, they criticised my bill for the fact that it does not include Commonwealth public servants. As explained in the explanatory memorandum to this bill, a private member’s bill before the House of Representatives cannot have a negative impact on revenue, and that is why, unfortunately, this bill moved again today does not include that provision. However, the next step, once this bill was passed, would be for action to be taken on the basis of eliminating that exclusion provision. That step would be taken by a Labor government, and the Democrats are very aware of that.

Secondly, the Democrats last week, in moving an amendment to the Governor-General Legislation Amendment Bill 2001, said that same sex superannuation rights should be applied to the Governor-General. Labor voted against that on two bases. Firstly, the incoming Governor-General is not homosexual and therefore would not receive any benefit from this act. Secondly, we believe the reform needs to address everyone and not just single out one person in an opportunistic manner. Also, we believe this person, Archbishop Hollingworth, will be the last Governor-General, as we support a republic for Australia and a president. It is very unfortunate, and I call upon the Democrats to forget this nonsense and actually work constructively on this. I acknowledge their support, and they should acknowledge Labor’s support for and commitment to this issue. This is an ideal I remain totally committed to, and I will fight until this legislation is changed. I present the explanatory memorandum to the bill. (Time expired)

Bill read a first time.

Mr SPEAKER—Order! It being 1.45 p.m., the debate is interrupted in accordance with standing order 104A.