Oct 8, 2003

Superannuation (Surcharge Rate Reducation) Amendment Bill 2003: Consideration of

SUPERANNUATION (SURCHARGE RATE REDUCTION) AMENDMENT BILL 2003: Consideration of Senate Message


8 October 2003


Mr ALBANESE (Grayndler) (6.15 p.m.) —I am very pleased to rise in support of amendment (27), moved by my colleague Senator Nick Sherry and carried by the Senate with the support of the Australian Labor Party, the Greens and the Democrats. This amendment goes to the heart of an issue that I have raised over many years. I first raised the issue of discrimination against same-sex couples with regard to superannuation in a speech in this House on 10 December 1996. I called upon the government to take action to remove this discrimination. When that did not occur, I moved a private member’s bill on 22 June 1998. The government refused to bring it on for debate, so after the election I reintroduced my private member’s bill on 7 December 1998. This time it had a second reading on 7 June 1999. However, in spite of that, it then lapsed again. It was then introduced by me again on 25 June 2001. It then got referred to a Senate select committee.

I gave evidence before that committee, along with organisations including the Association of Superannuation Funds of Australia, the association of Certified Practicing Accountants, gay and lesbian rights lobbies, the ACTU, specific industry funds and human rights organisations. All these groups gave evidence before that committee, which recommended that the discrimination be removed. And now we are one inch away from removing that discrimination by simply accepting this amendment which has already been adopted by the Senate. What this amendment would do is remove the five areas where discrimination currently takes place. As described in an explanatory memorandum, those areas are:

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.

I believe in removing all discrimination on the basis of sexuality. In terms of this issue, we are talking about someone’s money that they have contributed as part of their working life. What this discrimination says is that if you happen to be in a same-sex relationship you cannot determine where that money goes—you cannot determine that it goes to your spouse. It is an obscene form of theft of people’s money and a blatant abuse of human rights.

The government stands condemned for refusing to move on this issue at a time when the member for North Sydney, the member for Parramatta, the member for Bradfield and a number of other members opposite have indicated their support for removing this discrimination in the past. The Australian Democrats stand today as complete sell-outs of everything that they have said over many years they stand for, because they have run a campaign which has been hypocritical, deceitful, dishonest and incompetent and which has now been exposed as an absolute sham and a fraud. This is the worst sell-out done by them since the GST, and it impacts on a community that they have singled out as purporting to defend.

This discrimination has a real human impact. I want tonight to have the opportunity to place on the record the human dimension of this discrimination. (Extension of time granted) There are very real tragedies to this discrimination. When your partner dies, it should be a time of compassion, a time of sympathy, a time of bereavement and a time of respect. This discrimination occurs at that very time in people’s lives when we should be most sympathetic towards the bereaved partner of a loved one. Bereavement does not depend upon one’s sexuality at all, but that is essentially what this discrimination reinforces.

The first example I want to give is that of Greg Brown. Greg and his partner, Robert Corva, had been in a relationship for more than a decade when Robert passed away in 1993. Mr Corva had been employed by the Department of Defence for 17 years and had therefore contributed to the Commonwealth Superannuation Scheme. After Mr Corva died, Mr Brown was unable to access his partner’s super funds, but he was a fighter, so he took up the challenge. This case went to the Administrative Appeals Tribunal. After a long hearing and after going through this process, in 1995 it determined:

There is no doubt that the applicant and Mr Corva had a close marriage like relationship and that they conformed to the requirements of section 8A in all respects except for their gender. Yet the 1992 amendments, which were designed to remove discrimination on the ground of marital status, provide no redress in relation to the form of discrimination which is illustrated by this case.

In other words, despite the 1992 amendments which removed discrimination on the ground of marital status, discrimination for same-sex couples still applied. It is important to recognise what happened in 1992 under the former Labor government. When the minister gave his second reading speech to amend the Superannuation Act 1976, he stated that the key criterion for eligibility of a surviving spouse will be the existence of a permanent and bona fide relationship. There was no discussion at the time about whether it was to apply to same-sex relationships or just to heterosexual relationships. There was no judgment there. It was meant to apply to all. But what is clear is that the law has not been interpreted that way.

Greg Brown did not stop there. He took his case to the Human Rights and Equal Opportunity Commission, which handed down its decision in November 1998. Commissioner Sidoti found:

In denying to surviving same sex partners of superannuation fund members an entitlement to benefit, these acts contravene the prohibitions on sexual preference discrimination in the International Covenant on Civil and Political Rights and the International Labor Organisation Discrimination (Employment and Occupation) Convention (ILO111), both of which are scheduled to the Human Rights and Equal Opportunity Commission Act 1986.

Essentially what Commissioner Sidoti found was that there was discrimination but it was legal discrimination. It is 2003! We have had an amendment carried in the Senate only to be overturned by an obstinate government and a bunch of weaklings in the Democrats who have been prepared to roll over on this issue. How can we cop a situation in this House of legal discrimination?

This matter has been taken a step further by Edward Young, whom I had the privilege of meeting in my office some years ago. His spouse was Larry Cains, a member of the Defence Force who fought for our nation in World War II. Edward Young took his case to the United Nations Human Rights Committee. It found that Australia contravened the law on that basis as well. I believe very strongly that we need to support this amendment. (Extension of time granted) I believe that the Democrats, through their hypocrisy in rolling over on this issue, stand condemned. They have put out a pile of press releases dated 15 February 2000, 29 February 2000, 24 August 2001, 28 June 2002, 4 April 2000, 29 June 2001, 12 March 2002 and 23 June 2003 in which they make all sorts of statements. A press release dated 27 June states:

Regrettably the Labor Party once again voted with the government to continue discrimination against same sex couples in superannuation law.

That is what the Democrats said. That is exactly what they are going to do when this bill goes back over to the other place—to their utter shame. What is even worse is that they are going to get Senator Greig and Senator Stott Despoja to vote with the ALP on this issue so they can say, `We’re pure, we didn’t vote.’ I say to the Democrats, including Senator Greig and Senator Stott Despoja: we will ping you on this; we will not allow you to ever again talk about how you are opposed to this discrimination. They have moved absurd amendments to bills in the past, the most absurd of which was to the Governor-General Amendment Bill 2001. That was a bill which was about increasing the Governor-General’s salary because it was then becoming taxable. They moved a same-sex super amendment for the Governor-General, who happened to be heterosexual. Therefore it would have had no impact whatsoever. It was the ultimate grandstanding. They went out there in the community and said that the ALP voted against it. Yes, we did, because it was grandstanding and it had zero real impact. What we believe is that this discrimination has to be removed against all people, all Australians. We are opposed to it. That is why Senator Sherry moved this amendment. That is why the Labor Party voted for it. We are so close to real reform that has been set down as a priority for those concerned with removing discrimination.

The world does not end when you remove discrimination. Since, in the New South Wales parliament earlier this year, we equalised the age of consent, nothing has changed except that we can all hold our heads a bit higher. Discrimination is such that an injury against one is an injury against all. That is why this is an issue not just for people who are gay or lesbian. This is an issue for all Australians concerned about removing discrimination. I commend the amendment to the House. I call upon the government to reconsider its position and I call upon the Australian Democrats—if they have a sliver of integrity left—to ensure that when this amendment goes back to the Senate they actually vote to remove this discrimination.