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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
House of Representatives
Same-sex relationships (Equal Treatment in Commonwealth
laws - superannuation) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Hon Robert McClelland MP)
SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS -
SUPERANNUATION) BILL 2008
Outline
The purpose of this Bill is to eliminate discrimination against same-sex
couples and the children of same-sex relationships in the following Acts
that provide for reversionary superannuation benefits upon the death of a
scheme member, and in related taxation treatment of superannuation
benefits. The Bill amends the Commonwealth civilian and military (defined
benefit) superannuation schemes, the parliamentary, judicial and statutory
legal officer pension schemes and the pension scheme for the Governor-
General, established under the following Acts:
. Defence Force Retirement and Death Benefits Act 1973
. Defence Forces Retirement Benefits Act 1948
. Federal Magistrates Act 1999
. Governor-General Act 1974
. Judges' Pensions Act 1968
. Law Officers Act 1964
. Parliamentary Contributory Superannuation Act 1948
. Superannuation Act 1922
. Superannuation Act 1976
Other Commonwealth superannuation schemes, such as the Military
Superannuation and Benefits Scheme and the Public Sector Superannuation
Scheme, need to be amended by delegated legislation.
The following regulatory superannuation Acts and relevant taxation Acts
will be amended by the Bill to provide equal treatment to same-sex couples
and their children:
. Retirement Savings Accounts Act 1997
. Small Superannuation Accounts Act 1995
. Superannuation (Government Co-contribution for Low Income Earners)
Act 2003
. Superannuation Industry (Supervision) Act 1993
. Income Tax (Transitional Provisions) Act 1997
The same-sex partner of a beneficiary in a Commonwealth (defined benefit)
superannuation scheme currently does not get any direct access to
reversionary death benefits on the death of the beneficiary.
The Bill amends definitions in the Acts governing the Commonwealth civilian
and military (defined benefit) superannuation schemes and relevant
regulatory Acts and will enable death benefits to be conferred on de facto
same-sex partners and children of a same-sex relationship where they
currently would have no entitlement. In order to ensure that children of
opposite-sex relationships are conferred with the same entitlement the
definition is expanded to include the children of these relationships.
Until these Acts are amended, were a member to die, his or her same-sex
partner or a child of such a relationship would not be entitled to receive
reversionary death benefits.
Superannuation legislation generally refers to a 'spouse', which currently
excludes same-sex partners. While same-sex partners may be able to access
some superannuation concessions as 'dependants'-for example, concessional
treatment of death benefits- the amendments in this Bill will ensure equal
treatment of same-sex couples and their children with respect to these
concessions.
Financial Impact Statement
The measures in this Bill will have the following financial impact over
four years:
Expense ($ million)
| |2008-09|2009-10 |2010-11 |2011-12 |
|Department of |6.4 |6.1 |6.7 |7.5 |
|Finance and | | | | |
|Deregulation | | | | |
|Department of |2.7 |2.8 |3.0 |3.2 |
|Defence | | | | |
|ComSuper |1.6 |- |- |- |
|Attorney-General's |0.1 |0.1 |0.1 |0.1 |
|Department | | | | |
|Australian Taxation |- |0.9 |0.6 |0.4 |
|Office | | | | |
|Various Agencies |- |-1.0 |-1.1 |-1.6 |
(A minus sign before an estimate indicates a reduction in expenses, no
sign before an estimate indicates increased expenses.)
Capital ($ million)
| |2008-09|2009-10 |2010-11 |2011-12 |
|ComSuper |0.3 |- |- |- |
(A minus sign before an estimate indicates a reduction in capital, no
sign before an estimate indicates increased capital.)
Revenue ($ million)
| |2008-09|2009-10 |2010-11 |2011-12 |
|Australian Taxation |-0.4 |-0.4 |-0.4 |-0.4 |
|Office | | | | |
(A minus sign before an estimate indicates a reduction in revenue, no
sign before an estimate indicates a gain to revenue.)
The measures have an ongoing financial impact.
The measures in this Bill will result in the following approximate increase
in unfunded liability on commencement of the Act:
| |($ millon) |
|Schemes administered by the |81.5 |
|Department of Finance and | |
|Deregulation | |
|Schemes administered by the |30.0 |
|Department of Defence | |
|Schemes administered by the |1.0 |
|Attorney-General's Department | |
Regulation Impact Statement
A regulation impact statement is not required. The Office of Best Practice
Regulation has advised that no further analysis was required as the Bill
will have little to no regulatory impact.
Notes on clauses
Clause 1-Short title
Clause 1 provides for the Act to be cited as the Same-Sex Relationships
(Equal Treatment in Commonwealth Laws - Superannuation) Act 2008.
Clause 2-Commencement
Clause 2 provides for the commencement of the Act.
Subclause 2(1) provides that each provision of the Act specified in column
1 of the table set out in the subclause commences, or is taken to have
commenced, in accordance with column 2 of the table. Any other statement
in column 2 has effect according to its terms.
The note at the end of the table explains that the table relates only to
the provisions of the Act as originally passed by both Houses of the
Parliament and assented to. The table will not be expanded to deal with
provisions inserted in the Act after assent.
Subclause 2(2) provides that column 3 of the table contains additional
information that is not part of the Act. It also clarifies that
information in column 3 may be added or edited in any published version of
the Act.
Clauses 1 to 3 will commence on the day on which this Act receives the
Royal Assent.
Schedules 1, 2, 3 and 5 to the Bill will commence on a day to be fixed by
Proclamation. However, if any of the provision(s) do not commence within
the period of 6 months on which the Act receives Royal Assent, they
commence on the first day after the end of that period.
Schedule 4 to the Bill will commence on 1 July 2008.
Clause 3-Schedule(s)
Clause 3 provides that each Act specified in a Schedule to the Bill is
amended or repealed as set out in the applicable items in the Schedule and
any other item in a Schedule has effect according to its terms.
Schedule 1-Finance and Deregulation amendments
This Schedule contains amendments to the Parliamentary Contributory
Superannuation Act 1948 (PCSS Act), the Superannuation Act 1922 (1922 Act)
and the Superannuation Act 1976 (1976 Act), which establish superannuation
schemes for certain former Members of Parliament and Australian Government
employees.
Currently, death benefits can be paid from the schemes only to a legally
married spouse or an opposite-sex de facto spouse of a deceased scheme
member. Where there is no spouse who is eligible to receive the benefit,
benefits can be paid to eligible children of the member or their spouse
and, in the case of the Commonwealth Superannuation Scheme (CSS), to
partially dependent children. Eligibility as a spouse depends in part on
whether the person is in a marital relationship with a scheme member or
former member at the time of their death.
These amendments will make scheme benefits arising from the death of a
scheme member available to an eligible same-sex partner of the member or
former member and certain additional classes of children associated with
such relationships.
From the commencement of these amendments, eligibility to receive a spouse
benefit will be linked to whether a person was in a couple relationship
with a scheme member or former member at the time of the member's death.
The term couple relationship will incorporate relationships between persons
of the same sex in specified circumstances as well as those relationships
previously referred to as marital relationships.
In the case of other civilian and parliamentary superannuation
arrangements, either no legislative changes are required (for example, the
Public Sector Superannuation Accumulation Plan) or legislative changes need
to be made to delegated legislation, which is the case for the Public
Sector Superannuation Scheme.
Parliamentary Contributory Superannuation Act 1948
The scheme established under the PCSS Act has been closed to new members
since 9 October 2004. The scheme provides a contributory superannuation
scheme under which benefits are paid to former members of Parliament. The
PCSS Act provides for reversionary death benefits to be paid to the spouse
or orphan children of a deceased contributor or pensioner.
Item 1
This item inserts into subsection 4(1) of the PCSS Act a signpost to the
definition of the term 'couple relationship' in section 4B of the PCSS Act.
Item 2
This item amends the definition of 'former spouse' as a consequence of
amendments made by item 6, which introduces the new concept of 'couple
relationship'.
Item 3
This item inserts a definition of 'partner' into subsection 4(1) of the
PCSS Act. This amendment is related to the amendment being made to
section 4B of the PCSS Act by item 7 to replace the phrase 'husband or
wife' with the term 'partner. This will extend the range of persons who
can be considered to be eligible for death benefits to include a person in
a same-sex relationship with a scheme member.
Item 4
This item inserts a signpost into subsection 4(1) of the PCSS Act to
indicate that the term 'spouse' has a meaning as affected by section 4C of
the PCSS Act, which replaces the term 'marital relationship' with 'couple
relationship'.
Item 5
This item inserts subsection 4(7) into the PCSS Act. Subsection 4(7)
provides that for the purposes of the PCSS Act a child cannot be considered
to be the product of a relationship, whether between same or opposite-sex
partners, unless the child is the biological child of at least one person
in the relationship or is born to a woman in the relationship. This is
relevant to new provisions, such as the new paragraph (b) of the definition
of 'child' being inserted by item 17 into the PCSS Act.
Items 6 and 7
Existing sections 4B and 4C of the PCSS Act set out the requirements for a
person to be considered to be a spouse for the payment of death benefits.
Under these provisions, a person can be considered to be a spouse if the
person had a 'marital relationship' with another person at a particular
time, as defined in section 4B of the PCSS Act. One requirement of having
a marital relationship is that the person ordinarily lived with another
person as that other person's husband or wife. This means that currently
only an opposite-sex de facto or married spouse of a deceased scheme member
can be considered to have had a marital relationship with the member and
therefore be eligible for death benefits as a spouse.
The amendments made by these items replace the term 'marital relationship'
with the term 'couple relationship' and replace the phrase 'husband or
wife' with the term 'partner'. The effect of this amendment is to ensure
that the definition of a relationship, for the purpose of the payment of
death benefits, includes a same-sex relationship as well as an opposite-sex
relationship. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
Item 6 replaces the term 'marital relationship' with the term 'couple
relationship' in subsection 4B(1) of the PCSS Act. The heading to
section 4B is also replaced with a new heading that refers to a 'couple
relationship'.
Item 7 replaces the phrase 'husband or wife' with the term 'partner' in
subsection 4B(1). The term 'partner' is defined in subsection 4(1) of the
PCSS Act (see item 3).
Item 8
This item amends subsection 4B(2) of the PCSS Act as a consequence of the
amendment made by item 7.
Item 9
This item amends subsection 4B(3) of the PCSS Act as a consequence of the
amendment made by item 6.
Items 10 and 11
Subsection 4B(4) of the PCSS Act outlines circumstances which may be
relevant for determining whether a person in a relationship of less
than 3 years duration ordinarily lived with the other person as their
'partner' on a permanent and bona fide domestic basis. The circumstances
listed are not intended as an exhaustive list but cover some of the more
common circumstances, such as where the couple are married, have a child or
jointly own their home.
Items 10 and 11 insert paragraph 4B(4)(ba) and subparagraph 4B(4)(c)(iii)
into the PCSS Act to reflect that the concepts of 'spouse' and 'child' used
within the Act, for the purpose of the payment of death benefits, have been
extended to cover persons in same-sex relationships. Item 11 also includes
a note that clarifies that new subsection 4(7) is relevant to working out
when a child is a product of a relationship for the purposes of the new
subparagraph 4B(4)(c)(iii).
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- whether there is a child who is the product of the relationship
between the persons.
This will assist the Parliamentary Retiring Allowances Trust (the Trust) in
determining whether two persons, particularly where they are of the same
sex, had a 'couple relationship' where the persons were in a relationship
for a period of less than 3 years.
As it is intended that the prescribed relationships and prescribed State
and Territory legislation should be the same for the Commonwealth civilian
and military (defined benefit) superannuation schemes, for administrative
convenience they will be specified in the Judges' Pensions Act.
Item 12
This item amends subsections 4C(2) and (3) of the PCSS Act as a consequence
of amendments made by item 6.
Items 13 and 15
Section 19AA of the PCSS Act provides for benefits to be paid to eligible
children upon the death of a member or former member in certain
circumstances. Item 13 repeals paragraph 19AA(2)(d) and substitutes a new
paragraph 19AA(2)(d). Item 15 repeals paragraph 19AA(2B)(a) and
substitutes a new paragraph.
These amendments expand the current meaning of paragraphs 19AA(2)(d)
and 19AA(2B)(a) to ensure that a child born or adopted into a same-sex
relationship is treated in the same way as a child born or adopted into an
opposite-sex relationship in relation to the payment of orphaned children
benefits.
Items 14 and 16
These items insert notes after new subparagraphs 19AA(2)(d)(ii)
and 19AA(2B)(a)(iii) that provide that new subsection 4(7) of the PCSS Act
is relevant to working out when a child is a product of a relationship for
the purposes of those subparagraphs.
Item 17
This item repeals the definition of 'child' in subsection 19AA(5) of the
PCSS Act and inserts a new definition. The new definition expands the
classes of children that may be taken to be a child of the member for the
purposes of determining eligibility for orphaned children benefits. It
adds a new criteria that, if at any time the person had a partner, a child
who is the product of the person's relationship with that partner may be
taken to be the member's child.
Item 17 also inserts a note at the end of the new definition of 'child'
that provides that new subsection 4(7) of the PCSS Act is relevant to
working out when a child is a product of a relationship for the purposes of
the paragraph (b) of the definition of 'child'.
Paragraph (b) of the definition of 'child' provides that a child can be
considered to be a member's child where the child is the product of the
person's relationship with their partner.
Subsection 4(7) requires that the child is:
- the biological child of at least one person in the relationship, i.e.
is conceived utilising the gametes of one party to the relationship;
or
- the birth child of a woman in the relationship.
Examples 1 and 2 below outline circumstances where a child would meet the
requirements of paragraph (b) of subsection 19AA(5) and subsection 4(7).
The circumstances indicated in example 3 would not meet these requirements.
Example 1
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using gametes from S and a donor. The procedure
takes place and S gives birth to H. Whilst H is the biological child of
S, he is not the biological child of J.
H will be considered J's child for the purposes of the definition of
'child' in the PCSS Act. That is, H is the product of the relationship
between J and S and is S's biological child. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 2
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using donated gametes. The procedure takes place
and S gives birth to H. Whilst H is the birth child of S, he is not the
biological child of either J or S.
H will be considered J's child for the purposes of the definition of
'child' in the PCSS Act. That is, H is the product of the relationship
between J and S and S is H's birth mother. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 3
J is a scheme member and forms a relationship as a couple with S. S has
a child H from a previous relationship.
H cannot be considered J's child for the purposes of the definition of
'child' in the PCSS Act. Whilst H is S's biological child, and S is in the
relationship, H is not the product of the relationship between J and S.
H's connection with J only arose because J commenced a relationship with S.
It did not arise from any actions of the couple to add a child to their
relationship.
Item 18
This item provides that the amendments made to the PCSS Act by Schedule 1
to the Bill only apply in respect of benefits payable as a result of the
death of a person entitled to a parliamentary allowance or PCSS retiring
allowance (whether or not the retiring allowance was immediately payable)
that occurs on or after the commencement of Schedule 1 to the Bill.
Superannuation Act 1922
The scheme established under the 1922 Act has been closed since
1 July 1976. At that time all contributors were transferred to the CSS.
However, the 1922 Act provides for the payment of benefits to or in respect
of contributors or pensioners who died or retired before that date.
The 1922 Act provides for reversionary death benefits to be paid to the
widow or in some cases, the widower of a deceased contributor or pensioner.
Pensions are also payable to eligible children.
Under section 48AB of the 1922 Act, the Commissioner for Superannuation, in
certain circumstances, may grant a pension to or in respect of a person who
would be eligible to have a pension paid to or in respect of them if Part
IV of the 1976 Act applied to them. It is not necessary, therefore, to
make substantive amendments to the 1922 Act in relation to a person in a
same-sex relationship as the amendments made to the 1976 Act will flow
through to the granting of a pension by the Commissioner under section
48AB, and to the allocation of a pension under section 48ABA, where there
is more than one spouse.
Item 19
This item inserts subsection 48AB(4A) into the 1922 Act. This new
subsection makes it clear that the amendments to the 1976 Act to extend to
those persons who can be eligible for death benefits do not apply to a
pensioner or contributor in the Superannuation Act 1922 scheme if they died
before the commencement of Schedule 1 of the Bill.
Item 20
This item inserts new subsection 48ABA(9) into the 1922 Act. This new
subsection makes it clear that the amendments to the 1976 Act do not apply
to the definitions of 'eligible child' and 'spouse' in subsection 48ABA(1)
of the 1922 Act if the deceased pensioner died before the commencement of
Schedule 1 of the Bill.
Superannuation Act 1976
The scheme established under the 1976 Act has been closed to new members
since 1 July 1990. The scheme provides a defined benefit superannuation
scheme under which benefits are paid to former employees of the Australian
Government. The 1976 Act provides for reversionary death benefits to be
paid to the spouse with additional amounts for eligible children or
partially dependent children of the deceased contributor or pensioner. An
orphan benefit is payable for eligible children or partially dependent
children if a spouse's benefit is not payable.
Item 21
This item repeals the definition of 'child' in subsection 3(1) of the 1976
Act and inserts a new definition. The new definition expands the classes
of children that may be taken to be a child of the member for the purposes
of determining eligibility for benefits. It adds a new criteria that, if,
at any time, the person had a partner, a child who is the product of the
person's relationship with that partner may be taken to be the member's
child.
Item 21 also inserts a note at the end of the new definition of 'child'
that provides that new subsection 3(10) of the 1976 Act is relevant to
working out when a child is a product of a relationship for the purposes of
the subparagraphs (a)(ii) and (b)(ii) of the definition of 'child'.
Subparagraphs (a)(ii) and (b)(ii) of the definition of 'child' provides
that a child can be considered to be a member's child where the child is
the product of the person's relationship with their partner.
Subsection 3(10) requires that the child is:
- the biological child of at least one person in the relationship, i.e.
is conceived utilising the gametes of one party to the relationship;
or
- the birth child of a woman in the relationship.
Examples 1 and 2 below outline circumstances where a child would meet the
requirements of subparagraphs (a)(ii) and (b)(ii) in subsection 3(1). The
circumstances indicated in example 3 would not meet these requirements.
Example 1
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using gametes from S and a donor. The procedure
takes place and S gives birth to H. Whilst H is the biological child of
S, he is not the biological child of J.
H can be considered the child of J for the purposes of the definition of
'child' in the 1976 Act. That is, H is the product of the relationship
between J and S and is S's biological child. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 2
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using donated gametes. The procedure takes place
and S gives birth to H. Whilst H is the birth child of S, he is not the
biological child of either J or S.
H can be considered the child of J for the purposes of the definition of
'child' in the 1976 Act. That is, H is the product of the relationship
between J and S and S is H's birth mother. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 3
J is a scheme member and forms a relationship as a couple with S. S has
a child H from a previous relationship.
H cannot be considered J's child for the purposes of the definition of
'child' in the 1976 Act. Whilst H is S's biological child, and S is in the
relationship, H is not the product of the relationship between J and S.
H's connection with J only arose because J commenced a relationship with S.
Item 22
This item inserts into subsection 3(1) of the 1976 Act a signpost to the
definition of the term 'couple relationship' in section 8A of the 1976 Act.
Item 23
This item repeals the definition of 'late short-term marital relationship'
and inserts a new definition as a consequence of amendments made by item 27
to 'marital relationship'.
Item 24
This item inserts a definition of 'partner' into subsection 3(1) of the
1976 Act. This amendment is related to the amendment being made to section
8A of the 1976 Act by item 28 to replace the phrase 'husband or wife' with
the term 'partner'. This will extend the range of persons who can be
considered to be eligible for death benefits to include a person in a same-
sex relationship with a scheme member.
Item 25
This item inserts a signpost into subsection 3(1) of the 1976 Act to
indicate that the term 'spouse' has a meaning as affected by section 8B of
the 1976 Act.
Item 26
Item 26 inserts subsection 3(10) into the 1976 Act. Subsection 3(10)
provides that, for the purposes of the 1976 Act, a child cannot be the
product of a relationship, whether between same or opposite-sex partners,
unless the child is the biological child of at least one person in the
relationship or is born to a woman in the relationship. This is relevant
to new provisions, such subparagraphs (a)(ii) and (b)(ii) of the definition
of 'child', being inserted by item 21 into the 1976 Act.
Items 27 and 28
Existing sections 8A and 8B of the 1976 Act set out the requirements for a
person to be considered to be a spouse for the payment of death benefits.
Under these provisions, a person can be considered to be a spouse if the
person had a marital relationship with another person at a particular time
as defined in section 8A of the 1976 Act. One requirement of having a
marital relationship is that the person ordinarily lived with another
person as that other person's husband or wife. This means that currently
only a married or opposite-sex de facto spouse of a deceased scheme member
can be considered to have had a marital relationship with the member and
therefore be eligible for death benefits as a spouse.
Item 27 replaces the term 'marital relationship' with the term 'couple
relationship' in subsection 8A(1) of the 1976 Act. The heading to section
8A is also replaced with a new heading that refers to a 'couple
relationship'.
Item 28 replaces the phrase 'husband or wife' with the term 'partner' in
subsection 8A(1). The term 'partner' is defined in subsection 3(1) of the
1976 Act (see item 24).
The effect of the amendments made in these items is to ensure that the
definition of a relationship, for the purpose of the payment of death
benefits, includes a same-sex relationship as well as an opposite-sex
relationship. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
Item 29
This item amends subsection 8A(2) of the 1976 Act as a consequence of
amendments made by item 28.
Item 30
This item amends subsection 8A(3) of the 1976 Act as a consequence of
amendments made by item 27.
Items 31 and 32
Subsection 8A(4) of the 1976 Act outlines evidence that may be relevant for
determining whether a person in a relationship of less than 3 years
duration ordinarily lived with the other person as their 'partner' on a
permanent and bona fide domestic basis. The circumstances listed are not
intended to be exhaustive but do cover some of the more common
circumstances, such as where the couple are married, have a child or
jointly own their home.
Items 31 and 32 insert paragraph's 8A(4)(ba) and subparagraph 8A(4)(c)(iii)
into the 1976 Act to reflect that the concept of spouse and child used for
the purpose of the payment of death benefits extend to persons in same-sex
relationships. Item 32 also includes a note that provides that new
subsection 3(10) is relevant to working out when a child is a product of a
relationship for the purposes of the new subparagraph 8A(4)(c)(iii).
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- whether there is a child who is the product of the relationship
between the persons.
This will assist the Australian Reward Investment Alliance (the Board) in
determining whether two persons, particularly where they are of the same
sex, had a 'couple relationship' where the persons were in a relationship
for a period of less than 3 years.
As it is intended that the prescribed relationships and prescribed State
and Territory legislation should be the same for the Commonwealth civilian
and military (defined benefit) superannuation schemes, for administrative
convenience they will be specified in the Judges' Pensions Act.
Items 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 47, 48, 49, 51, 53,
55 and 57
These items amend the reference to 'marital relationship' in various
sections of the 1976 Act as a consequence of amendments made by item 27 to
replace the term 'marital relationship' with the term 'couple
relationship'.
Items 44 and 46
Subsection 110(5B) provides for the matters which the Board must take into
account when determining the benefits payable in respect of particular
children of deceased retirement pensioners who had had a 'late short-term
couple relationship'. The particular children taken into account in this
provision are outlined in paragraph 110(5B)(b). Broadly speaking, they are
an eligible child that was not a child of the marital relationship and was
in the care, custody or control of the spouse.
Item 44 extends the categories of children to be taken into account by
inserting subparagraph 110(5B)(b)(ia) into the 1976 Act. The new
subparagraph provides that where members of a couple are of the same sex
the Board must take into consideration an eligible child in the care,
custody or control of the spouse who was not a child of the 'couple
relationship'.
Item 46 adds a note at the end of subsection 110(5B) that new
subsection 3(10) of the 1976 Act is relevant to working out when a child is
a product of a relationship for the purposes of the new subparagraph
110(5B)(b)(ia).
Items 50 and 52
Subsection 110(7A) applies to benefits payable in respect of particular
children of deceased retirement pensioners who had had a 'late short-term
couple relationship'. The particular children taken into account in this
provision are outlined in subsections (7A)(b) and (c). Broadly speaking,
they are an eligible child that was a child of the couple relationship and
was not in the care, custody or control of a deceased retirement pensioner
or any of the surviving spouses.
Item 50 inserts subparagraph 7A(b)(ia) into the 1976 Act. This will ensure
that a child who is the product of a relationship between a person and the
pensioner that is a couple relationship will be considered as the child of
a couple relationship for the purposes of this provision.
Item 52 adds a note at the end of paragraph 110(7A)(b) that new
subsection 3(10) of the 1976 Act is relevant to working out when a child is
a product of a relationship for the purposes of the new subparagraph
110(7A)(b)(ia).
Item 54
This item amends paragraph 110(14)(d) as a consequence of the new
definition of 'child' in subsection 3(1). This will ensure that children
who are the product of a relationship will be included in this provision.
Item 56
This item amends subparagraph 136(2B)(ma)(iv) as a consequence of item 23
which replaces the definition of 'late short-term marital relationship'
with a new definition of 'late short-term couple relationship'.
Item 58
This item provides that the amendments made to the 1976 Act by Schedule 1
only apply in respect of benefits payable as a result of the death of an
'eligible employee', 'retirement pensioner' or 'deferred benefit member'
that occurs on or after the commencement of Schedule 1. The term 'deferred
benefit member' is defined in Division 4A of Part V of the 1976 Act.
Schedule 2-Attorney-General's amendments
This Schedule contains amendments to the Federal Magistrates Act 1999
(FM Act), the Judges' Pensions Act 1968 (Judges' Pensions Act) and the Law
Officers Act 1964 (Law Officers Act).
The FM Act provides death benefits for federal magistrates. Where a
magistrate dies in office or a former magistrate in receipt of a disability
pension dies before reaching age 65, a lump sum, covering the period
between the date of death and age 65, is payable to the magistrate's spouse
and dependent children.
The Judges' Pensions Act makes provision in relation to the entitlements to
pensions of persons who hold office as judges of the High Court of
Australia, the Federal Court of Australia and the Family Court of Australia
and certain other office holders who are deemed to be judges for the
purposes of the Act.
The Law Officers Act establishes the office of the Solicitor-General of the
Commonwealth and makes provision in relation to the entitlements to
pensions of persons who were appointed as Solicitor-General prior to
1 January 1998. It applies terminology from the Judges' Pensions Act and
treats a person appointed as Solicitor-General as though they were, or had
been, a Judge and as though their service (whether in continuous periods or
not) as Solicitor-General were service as a judge.
Currently, death benefits or pensions can only be paid to a married or
opposite-sex de facto spouse of a deceased federal magistrate or judge, or
Solicitor-General, or, where there is no spouse who is eligible to receive
the benefit, to eligible children of the federal magistrate or judge.
Eligibility for a spouse depends in part on whether the person is in a
marital relationship with a federal magistrate or judge at the time of the
magistrate's or judge's death.
These amendments will make death and pension benefits arising from the
death of a federal magistrate or judge equally available to an eligible
same-sex partner of the federal magistrate or judge and certain additional
classes of children associated with such relationships.
From the commencement of these amendments, eligibility for a spouse's
entitlement will be linked to whether a person was in a couple relationship
with the federal magistrate or judge at the time of the magistrate's or
judge's death. A couple relationship will include relationships between
persons of the same sex in specified circumstances as well as those
relationships previously referred to as marital relationships.
Federal Magistrates Act 1999
Item 1
This item inserts into section 5 of the FM Act a "(1)" before the word
"In".
Item 2
This item inserts into subsection 5(1) of the FM Act a signpost to the
definition of the term 'couple relationship' in subclause 9E(5) of Schedule
1 to the FM Act.
Item 3
This item repeals the definition of 'marital relationship' as a consequence
of amendments made by items 6, 7 and 9 which replace the term 'marital
relationship' with 'couple relationship'.
Item 4
This item inserts a definition of 'partner' into section 5 of the FM Act.
This amendment is related to the amendments being made to subclauses 9E(5)
of Schedule 1 to the FM Act by item 8 which replaces the phrase 'husband or
wife' with the term 'partner' to extend the current concept of who can be
considered to be eligible for death benefits to include a person in a same-
sex relationship with a federal magistrate.
Item 5
This item inserts subsection 5(2) into the FM Act. Subsection 5(2)
provides that for the purposes of the FM Act a child cannot be the product
of a relationship, whether between same or opposite-sex partners, unless
the child is the biological child of at least one person in the
relationship or is born to a woman in the relationship. This is relevant
to new subparagraph 9E(7)(c)(iii) of Schedule 1 to the FM Act inserted by
item 11 and new subclause 9F(1A) of Schedule 1 inserted by item 12.
Item 6
Clause 9E of Schedule 1 to the FM Act defines certain relationships for the
purpose of establishing status as a beneficiary for a death benefit
payment.
Subclauses 9E(2), (3) and (4) set out the requirements for a person to be
considered an 'eligible spouse' of a federal magistrate for the payment of
death benefits. A person is an 'eligible spouse' of a federal magistrate,
or a retired disabled federal magistrate, who dies, if any of the following
three circumstances apply:
- the person had a marital relationship with the federal magistrate at
the time of the Magistrate's death.
- the person had a marital relationship with the retired disabled
federal magistrate at the time of the magistrate's death and that
relationship began before the magistrate (i) retired or (ii) attained
age 60.
- the person had previously had a marital relationship with the federal
magistrate or the retired disabled federal magistrate, as the case
may be, and did not, at the time of the magistrate's death, have such
a relationship but was legally married to the magistrate and was, in
the Minister's opinion, wholly or substantially dependent on the
magistrate. Where the marital relationship of a retired disabled
federal magistrate began after the magistrate retired, the
relationship has to have begun before the magistrate attained age 60.
The amendments made by item 6 replace the term 'marital relationship' with
the term 'couple relationship'. The effect of this amendment is to ensure
that the definition of a relationship, for the purpose of the payment of
death benefits, includes a same-sex relationship as well as an opposite-sex
relationship. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
Items 7, 8 and 9
Subclause 9E(5) of Schedule 1 to the FM Act provides that a person has a
'marital relationship' with another person at a particular time if they
have been living as husband and wife (whether or not they are legally
married):
- for a continuous period of at least 3 years up to that time, or
- for a continuous period of less than 3 years up to that time and the
Minister, having regard to any relevant evidence, is of the opinion
that they ordinarily lived with each other as husband and wife on a
permanent and bona fide domestic basis at that time.
Subclause 9E(6) provides guidance on the timing of when a marital
relationship has begun.
The amendments made by these items replace the term 'marital
relationship' with the term 'couple relationship' and replace the phrase
'husband or wife' with the term 'partner'. The effect of these amendments
is to ensure that the definition of a relationship, for the purpose of the
payment of death benefits, includes a same-sex relationship as well as an
opposite-sex relationship. The inclusion of same-sex relationships within
this definition is not intended to change the treatment of married or
opposite-sex de facto couples. It removes same-sex discrimination but does
not change or re-define any other indicia of a relationship.
Item 7 replaces the term 'marital relationship' with the term 'couple
relationship' in subclause 9E(5). The heading to subclause 9E(5) is also
replaced with a new heading that refers to a 'couple relationship'.
Item 8 replaces the phrase 'husband or wife' with the term 'partner' in
subclause 9E(5). The term partner is defined in subsection 5(1) of the FM
Act (see item 4).
Item 9 replaces the term 'marital relationship' with the term 'couple
relationship' in subclause 9E(6).
Items 10 and 11
Subclause 9E(7) of Schedule 1 to the FM Act provides that relevant evidence
for the Minister in making a decision whether a person ordinarily lived
with another person as their 'partner' on a permanent and bona fide
domestic basis at a particular time would include evidence:
- that the person was wholly or substantially dependent on the other
person at the time.
- that they were legally married to each other at the time.
- that they had a child or had adopted a child during their
relationship.
- that they jointly owned a home which was their usual residence.
In recognition of extending the existing concept of who can be considered
to be a spouse or child for the payment of death or pension benefits to
cover persons in same-sex relationships item 10 inserts paragraph 9E(7)(ba)
and item 11 inserts subparagraph 9E(7)(c)(iii) into Schedule 1 to the FM
Act. Item 11 also includes a note that provides that new subsection 5(2)
is relevant to working out when a child is the product of the relationship
for the purposes of the new subparagraph 9E(7)(c)(iii) (see item 5).
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- whether there is a child who was the product of the relationship
between the persons.
Item 12
Clause 9F of Schedule 1 to the FM Act defines 'eligible child' for the
purposes of the FM Act.
A person is an eligible child of a federal magistrate or of a retired
federal magistrate if the person:
- is under 16 years of age, or under 25 years of age and in full-time
education, and
- either is a child or adopted child of the magistrate or, in the
Minister's opinion, was or would have been wholly or substantially
dependent on the magistrate.
This item inserts new subclause 9F(1A) to expand the classes of children
that may be taken to be an 'eligible child' of a federal magistrate for the
purposes of determining the payment of death benefits. It adds a new
criteria that, if, at any time, the federal magistrate or retired federal
magistrate had a partner, a child who is the product of the federal
magistrate's relationship with that partner is taken to be the federal
magistrate's child.
Item 12 also inserts a note at the end of new subclause 9F(1A) that
provides that new subsection 5(2) of the FM Act is relevant to working out
if a child is the product of a relationship (see item 5).
New subclause 9F(1A) of Schedule 1 to the FM Act and new subsection 5(2)
are intended to encompass situations as described in examples 1 and 2
below. However, they are not intended to encompass situations as described
in example 3 below.
Example 1
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using gametes from S and a donor. The
procedure takes place and S gives birth to H. Whilst H is the
biological child of S, he is not the biological child of J.
H can be considered J's child for the purposes of the definition of 'child'
in the FM Act. That is, H is the product of the relationship between J and
S and is S's biological child. This would continue to be the case even if
the relationship between J and S were to break down at a later time.
Example 2
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using donated gametes. The procedure
takes place and S gives birth to H. Whilst H is the birth child of S,
he is not the biological child of either J or S.
H can be considered J's child for the purposes of the definition of 'child'
in the FM Act. That is, H is the product of the relationship between J and
S and S is H's birth mother. This would continue to be the case even if
the relationship between J and S were to break down at a later time.
Example 3
J is a scheme member and forms a relationship as a couple with S. S
has a child H from a previous relationship.
H cannot be considered J's child within the meaning of 'eligible child' in
the FM Act. Whilst H is S's biological child, and S is in the
relationship, H is not the product of the relationship between J and S.
H's connection with J only arose because J commenced a relationship with S.
It did not arise from any actions of the couple to add a child to their
relationship.
Item 13
This item provides that the amendments made to the FM Act by Schedule 2 to
the Bill apply in respect of benefits payable as a result of the death of a
federal magistrate or a retired disabled federal magistrate only if the
federal magistrate or the retired disabled federal magistrate dies on or
after the commencement of Schedule 2 to the Bill.
Judges' Pensions Act 1968
Item 14
This item amends subsection 4(1) of the Judges' Pensions Act to insert a
definition to clarify the meaning of 'child of a couple relationship'. The
new definition expands the classes of children that are taken to be
children of a judge for the purposes of determining eligibility for pension
benefits. The new definition provides that a child can be considered to be
a 'child of a couple relationship' if the child:
- was born of the couple relationship
- was adopted by the people in the couple relationship during the
period of the relationship, or
- was the product of the couple relationship.
A definition of 'couple relationship' is provided in section 4AB.
Item 14 also inserts a note at the end of the new definition that provides
that subsection 4(4) of the Judges' Pensions Act is relevant to working out
if a child is the product of a relationship for the purposes of paragraph
(c) (see item 19).
Item 15
This item repeals the definition of 'child of a marital relationship' as a
consequence of amendments made by items 22, 24, 27 and 28 which replace the
term 'child of a marital relationship' with 'child of a couple
relationship'.
Item 16
This item inserts into subsection 4(1) of the Judges' Pensions Act a
signpost to the definition of the term 'couple relationship' in section 4AB
of the Judges' Pensions Act.
Item 17
This item inserts a definition of 'partner' into subsection 4(1) of the
Judges' Pensions Act. This amendment is related to the amendments being
made to subsections 4AB(1) and (2) of the Judges' Pensions Act by item 23
which replaces the phrase 'husband or wife' with the term 'partner' to
extend the current concept of who can be considered to be eligible for
pension benefits to include a person in a same-sex relationship with a
Judge.
Item 18
This item inserts into subsection 4(1) of the Judges' Pensions Act a
signpost to the definition of the term 'spouse' in section 4AC of the
Judges' Pensions Act.
Item 19
This item inserts subsection 4(4) into the Judges' Pensions Act.
Subsection 4(4) provides that a child cannot be the product of a
relationship, whether between same or opposite-sex partners, unless the
child is the biological child of at least one person in the relationship or
is born to a woman in the relationship. This is relevant to the new
definition of 'child of a couple relationship' in subsection 4(1) inserted
by item 14, new subsection 4AA(2) inserted by item 21 and new subparagraph
4AB(4)(c)(iii) inserted by item 26.
Item 20
This item inserts into section 4AA of the Judges' Pensions Act a "(1)"
before the word "For".
Item 21
Section 4AA of the Judges' Pensions Act defines "eligible child" for the
purposes of the Act.
A person is an eligible child of a deceased judge or of a deceased retired
judge if the person:
- is the child of the deceased judge, or
- in the Attorney-General's opinion, the child was or would have been
wholly or substantially dependent on the deceased judge.
This item inserts new subsection 4AA(2) to expand the classes of children
that may be taken to be an 'eligible child' of a deceased judge for the
purposes of determining the payment of death benefits. If, at any time,
the deceased judge or deceased retired judge had a partner, a child who is
the product of the judge's relationship with that partner is taken to be
the judge's child.
Item 21 also inserts a note at the end of new subsection 4AA(2) that
provides that new subsection 4(4) of the Judges' Pensions Act is relevant
to working out if a child is the product of a relationship (see item 19).
New subsection 4AA(2) and new subsection 4(4) are intended to encompass
situations as described in examples 1 and 2 below. However, they are not
intended to encompass situations as described in example 3 below.
Example 1
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using gametes from S and a donor. The
procedure takes place and S gives birth to H. Whilst H is the
biological child of S, he is not the biological child of J.
H can be considered J's child within the meaning of 'eligible child' in the
Judges' Pensions Act. That is, H is the product of the relationship
between J and S and S's biological child. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 2
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using donated gametes. The procedure
takes place and S gives birth to H. Whilst H is the birth child of S,
he is not the biological child of either J or S.
H can be considered J's child within the meaning of 'eligible child' in the
Judges' Pensions Act. That is, H is the product of the relationship
between J and S and S is H's birth mother. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 3
J is a scheme member and forms a relationship as a couple with S. S
has a child H from a previous relationship.
H cannot be considered J's child within the meaning of 'eligible child' in
the Judges' Pensions Act. Whilst H is S's biological child, and S is in
the relationship, H is not the product of the relationship between J and S.
H's connection with J only arose because J commenced a relationship with
S. It did not arise from any actions of the couple to add a child to their
relationship.
Items 22, 23 and 24
Subsection 4AB(1) of the Judges' Pensions Act set out the requirements for
determining when a person is to be considered in a 'marital relationship'
with a judge or retired judge. A person is taken to be in a 'marital
relationship' with a judge, or a retired judge, if the person ordinarily
lived with the judge as the judge's husband or wife on a permanent and bona
fide domestic basis at that time.
Subsection 4AB(2) provides that a person is to be regarded as ordinarily
living with another person on a permanent or bona fide domestic basis if
they have been living as husband and wife (whether or not they are legally
married):
- for a continuous period of at least three years up to that time, or
- for a continuous period of less than three years up to that time and
the Attorney-General, having regard to any relevant evidence, is of
the opinion that they ordinarily lived with each other as husband
and wife on a permanent and bona fide domestic basis at that time.
Subsection 4AB(3) provides guidance on the timing of when a marital
relationship has begun.
The amendments made by items 22, 23 and 24 replace the term 'marital
relationship' in subsection 4AB(1) with the term 'couple relationship' and
replace the phrase 'husband or wife' with the term 'partner'. The effect
of this amendment is to ensure that the definition of a relationship, for
the purpose of the payment of death benefits, includes a same-sex
relationship as well as an opposite-sex relationship. The inclusion of
same-sex relationships within this definition is not intended to change the
treatment of married or opposite-sex de facto couples. It removes same-sex
discrimination but does not change or re-define any other indicia of a
relationship.
Item 22 replaces the term 'marital relationship' with the term 'couple
relationship' in subclause subsection 4AB(1) of the Judges' Pensions Act.
The heading to subsection 4AB(1) is also replaced with a new heading that
refers to a 'couple relationship'.
Item 23 replaces the phrase 'husband or wife' with the term 'partner' in
subsections 4AB(1) and (2) of the Judges' Pensions Act. The term partner
is defined in subsection 4(1) of the Judges' Pensions Act (see item 17).
Item 24 replaces the term 'marital relationship' with the term 'couple
relationship' in subsection 4AB(3) of the Judges' Pensions Act.
Items 25 and 26
Subsection 4AB(4) of the Judges' Pensions Act provides that relevant
evidence for the Attorney-General in making a decision whether a person
ordinarily lived with another person as their 'partner' on a permanent and
bona fide domestic basis at a particular time, would include evidence:
- that the person was wholly or substantially dependent on the other
person at the time.
- that they were legally married to each other at the time.
- that they had a child or had adopted a child during their
relationship.
- that they jointly owned a home which was their usual residence.
Certain registered relationships will be able to taken into account as
evidence of the existence of the relationship in recognition of extending
the existing concept of who can be considered to be a spouse or child for
the payment of death or pension benefits to cover persons in same-sex
relationships. Item 25 inserts paragraph 4AB(4)(ba) and item 26 inserts
subparagraph 4AB(4)(c)(iii) into the Judges' Pensions Act.
Item 26 also includes a note that provides that new subsection 4(4) is
relevant to working out when a child is the product of the relationship for
the purposes of the new subparagraph 4AB(4)(c)(iii) (see item 19).
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- there is a child who was the product of the relationship between the
person and the judge.
Item 27
Section 4AC sets out the requirements for a person to be considered a
'spouse' of a judge for the payment of death benefits. Subsection 4AC(2)
provides that a person is a 'spouse' of a judge, or a retired judge, who
dies if the following circumstances apply:
- the person had a marital relationship with the judge at the time of
the judge's death (paragraph 4AC(2)(a)), and
- the person had a marital relationship with the retired judge at the
time of the judge's death and that relationship began before the
judge (i) retired or (ii) attained age 60, or (iii) the marital
relationship had continued for a period of at least 5 years before
the judge's death (paragraph 4AC(2)(b)), or
Subsection 4AC(3) provides that a person is a 'spouse' of a judge, or a
retired judge, who dies if the following circumstances apply:
- the person had previously had a marital relationship with the judge
(paragraph 4AC(3)(a)), and
- the person did not, at the time of the judge's death, have such a
relationship but was legally married to the deceased judge
(paragraph 4AC(3)(b)), and
- where the marital relationship of a retired judge began after the
judge retired, the relationship began before the judge attained age
60 (paragraph 4AC(3)(c)), and
- in the Attorney-General's opinion, the person was wholly or
substantially dependent upon the judge (paragraph 4AC(3)(d)).
The amendments made by item 27 replace the term 'marital relationship' with
the term 'couple relationship'. The effect of this amendment is to ensure
that the definition of a relationship, for the purpose of the payment of
death benefits, includes a same-sex relationship as well as an opposite-sex
relationship. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
Item 28
Sections 10, 11 and 12 provide guidance on when pensions will be payable in
respect of children:
- on the death of a retired judge (section 10)
- on the death of a spouse (section 11), and
- on the death of a judge or retired judge when a spouse's pension is
not payable (section 12).
The amendments made by item 28 replace the term 'marital relationship' with
the term 'couple relationship' in subsections 10(2), 11(3), and 12(3). The
effect of this amendment is to ensure that the definition of a
relationship, for the purpose of the payment of a pension, includes a same-
sex relationship as well as an opposite-sex relationship. The inclusion of
same-sex relationships within this definition is not intended to change the
treatment of married or opposite-sex de facto couples. It removes same-sex
discrimination but does not change or re-define any other indicia of a
relationship.
Item 29
This item amends paragraph 17A(aa) to reflect amendments made by item 20.
Item 30
Subclause (1) of this item provides that the amendments made to the Judges'
Pensions Act by Schedule 2 to the Bill apply in respect of pensions payable
as a result of the death of a judge or a retired judge only if the judge or
the retired judge dies on or after the commencement of Schedule 2 to the
Bill.
Subclause (2) of this item provides that the amendments made to the Judges'
Pensions Act by Schedule 2 to the Bill apply in relation to pensions
payable under the Building and Construction Industry Improvement Act 2005
as a result of the death of a ABC Commissioner or former ABC Commissioner
only if the Commissioner or former Commissioner dies on or after the
commencement of Schedule 2 to the Bill.
Law Officers Act 1964
Item 31
Subsection 16(1) of the Law Officers Act provides that the provisions of
the Judges' Pensions Act other than subsection 6(3) (including the
provisions relating to widows and children) apply to, and in relation to, a
person who is, or has been, a Solicitor-General, as though the Solicitor-
General were, or had been, a judge and as though his or her service
(whether in continuous periods or not) as Solicitor-General were service as
a judge. Section 16 does not apply in relation to a person appointed as
Solicitor-General after 31 December 1997.
Subsection 16(1) of the Law Officers Act refers to 'subsection 6(3)' of the
Judges' Pensions Act. This reference should have been amended by the
Superannuation Legislation Amendment (Superannuation Contributions Tax)
Act 1997, which repealed subsection 6(3) and moved the contents of that
subsection to the new subsection 4(2) of the Judges' Pensions Act. Item 31
corrects this error by amending the reference so that it refers to
'subsection 4(2)' of the Judges' Pensions Act rather than 'subsection 6(3)'
of the Judges' Pensions Act.
Subsection 16(1) of the Law Officers Act also refers to the term 'widows'
in the Judges' Pensions Act. The term 'widow' (wherever occurring in the
Judges' Pensions Act) was replaced by 'spouse' in the Judges' Pensions Act
by the Commonwealth Superannuation Schemes Amendment Act 1992. This item
corrects this anomaly by replacing the word 'widows' with 'spouses'.
Item 32
This item provides that the amendments made to the Law Officers Act by
Schedule 2 to the Bill apply only in respect of pensions payable as a
result of the death of a person who was appointed as Solicitor-General
before 1 January 1998 if the person dies on or after the commencement of
Schedule 2 to the Bill.
Schedule 3-Defence amendments
This Schedule contains amendments to the Defence Force Retirement and Death
Benefits Act 1973 (the DFRDB Act) and the Defence Forces Retirement
Benefits Act 1948 (the DFRB Act), the acts which govern the superannuation
schemes for members and former members of the Australian Defence Forces.
The amendments in this Schedule commence on the same day that the
amendments in Schedule 1 to the Bill are proclaimed to commence. This will
ensure a consistent commencement for changes in the various superannuation
schemes.
The amendments provide for the payment of benefits to the same-sex partner,
and to an eligible child who is the product of a same-sex relationship, of
an eligible scheme member who dies on or after the commencement of the
amendments. These classes of person have been excluded from the scope of
the benefits provided under military superannuation schemes as they fall
outside the scope of relevant definitions. The extension of the DFRDB Act
to these previously excluded persons is achieved by amending definitions
under the Act to provide that they are inclusive of same-sex partners and
children that are the product of a same-sex relationship of an eligible
scheme member. These new potential beneficiaries are required to meet
tests for eligibility, the same as opposite-sex partners and children
currently included in the scheme.
The amendments to the DFRB Act provide for the payment of benefits for the
classes of person described above without amendment of individual
definitions. As contributions to this scheme were closed from the
commencement of the DFRDB Act, only recipient members remain. Rather than
making extensive changes to the sources of entitlement in this scheme, a
power is provided to allow payment to be made to persons who would meet the
requirements for payment under the DFRDB Act, but for the deceased member
having been a member of the 1948 scheme.
The amendments also provide for consistent use of terminology relating to
the pension benefits that may be paid to a person who is entitled to be
paid a spouse pension throughout the DFRDB Act. This will assist readers
to more easily understand the various pension benefits conferred under that
Act.
The Military Superannuation and Benefits Act 1991 is not amended by
Schedule 3 to the Bill, because the changes necessary to effect the policy
described above will be made by the Minister for Defence under section 5 of
that Act, by amendment of the Military Superannuation and Benefits Trust
Deed.
Defence Force Retirement and Death Benefits Act 1973
Item 1
This item, along with item 2, provides for the insertion of a new
subparagraph (a)(iii) into the definition of child in subsection 3(1) of
the DFRDB Act.
Item 2
Item 2 inserts a new subparagraph (a)(iii) into the extended definition of
'child' in paragraph 3(1)(a) of the DFRDB Act. The item expands the
classes of children that may be taken to be a child of the member for the
purpose of determining whether benefits may be paid to the child on the
death of the member.
If the child is the product of the member's relationship with a partner,
then that child may be taken to be the member's child. The definition
applies regardless of the gender of the member's partner.
Subparagraph 3(6) additionally requires that in order to be a product of a
relationship, the child must also have been connected to that relationship
as the biological or birth child of a person in the relationship
Item 3
Item 3 inserts a new paragraph (c) into the definition of 'child' in
section 3 of the DFRDB Act. The new item provides that a child can be
considered to be the member's for the purpose of the scheme where the child
is the child of the member's partner and the product of a relationship that
the partner had with another person. Subparagraph (c)(ii) requires that
the child was wholly or substantially dependent on the member at the time
the member died.
Subparagraph 3(6) additionally requires that in order to be a product of a
relationship, the child must also have been connected to that relationship
as the biological or birth child of a person in the relationship.
Proposed new subparagraph (a)(iii) and paragraph (c) of the definition of
'child' are intended to extend the scope of the definition to children who
are the product of same-sex relationships. The new definition is limited
by new subsection 3(6) inserted by item 9 and by its interaction with the
existing elements of the definition of 'child'. For this reason, an
administrative note is inserted at the end of new paragraph (c) to ensure
that the relevance of subsection 3(6) is drawn to the reader's attention.
Examples 1-3 below show how the amendments may extend the definition.
Example 4 shows the limits on this extension and also the way that existing
parts of the definition may extend to the child of a person in a same-sex
or opposite-sex couple relationship.
Example 1
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using gametes from S and a donor. The
procedure takes place and S gives birth to H. Whilst H is the
biological child of S, he is not the biological child of J.
H can be considered J's child for the purposes of the definition of 'child'
in the DFRDB Act. That is, H is the product of the relationship between J
and S and is S's biological child. This would continue to be the case even
if the relationship between J and S were to break down at a later time.
Example 2
J is a scheme member and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an
artificial conception procedure using donated gametes. The procedure
takes place and S gives birth to H. Whilst H is the birth child of S,
he is not the biological child of either J or S.
H can be taken to be J's child for the purposes of the definition of
'child' under the DFRDB Act. That is, H is the product of the relationship
between J and S and S is H's birth mother. This would continue to be the
case even if the relationship between J and S were to break down at a later
time.
Example 3
J is a scheme member and forms a relationship as a couple with S. The
couple decide to provide long-term foster-care for a child, H, whose
biological mother is permanently unable to provide care.
H has no biological connection to the couple but is taken to be the child
of J for the purposes of the definition of 'child' under the scheme,
because J has formally fostered H. This would continue to be the case even
if the relationship between J and S were to break down, providing that J
continued to foster H. Recognition of foster children is already expressly
provided for under the DFRDB Act.
Example 4
J is a scheme member and forms a relationship as a couple with S. S
has a child, H, from a previous relationship.
H cannot be considered J's child within the meaning of 'eligible child' in
the DFRDB Act. Whilst H is S's biological child, and S is in the
relationship, H is not the product of the relationship between J and S.
H's connection with J only arose because J commenced a relationship with S.
It did not arise from any actions of the couple to add a child to their
relationship. H does not depend on J for economic support.
Item 4
This item inserts a signpost into the listing of definitions in section 3
of the DFRDB Act, to indicate that the term 'couple relationship' is to be
interpreted subject to section 6A of the DFRDB Act.
Item 5
This item inserts words into the definition of 'eligible orphan' to ensure
that a spouse pension provided under the DFRDB Act is taken into account
when working out whether a pension may be payable to a child on the death
of a member. Apart from same-sex partners, this change does not have the
effect of extending benefits to any persons not currently taken to be
eligible under the scheme. Rather, it reflects the change of terminology
from 'widow' to 'spouse' that was originally introduced by the Commonwealth
Superannuation Schemes Amendment Act 1992. However, this terminology has
not been consistently applied through the DFRDB Act since that time. This
amendment ensures that the current terminology can be easily related to the
pension entitlements provided under sections 38 and 39 of the DFRDB Act.
Item 6
This item inserts a new definition of the term 'partner'. This amendment
replaces the phrase 'husband or wife' with the term 'partner' to extend the
range of persons who can be considered to be eligible for death benefits to
include a person in a same-sex relationship with a scheme member. This
amendment operates in conjunction with the amendments proposed to section
6A and 6B of the Act.
Item 7
This item inserts words into the definition of 'pension benefit' to ensure
that a spouse pension provided under the Act is included under the broad
term. The amendment reflects the change of terminology from 'widow' to
'spouse' that was originally introduced by the Commonwealth Superannuation
Schemes Amendment Act 1992. However, this terminology has not been
consistently applied through the Act since that time. This amendment
ensures that the current terminology can be easily related to the pension
entitlements provided under sections 38 and 39 of the DFRDB Act.
Item 8
This item inserts a signpost into the listing of definitions in section 3
of the Act, to indicate that the term 'spouse' is to be interpreted subject
to section 6B of the Act.
Item 9
This item inserts proposed new subsection 3(6) into the DFRDB Act. The new
subsection makes it clear that a child for the purposes of the DFRDB Act
may only be the product of a person's relationship with a partner if the
child is the biological child of at least one of the persons in the
relationship, or is born to a woman in the relationship.
Item 10
The express wording of section 6A, as including only a 'marital
relationship' restricted to persons ordinarily living together as 'husband
or wife', means that only persons in a marriage or an opposite-sex de facto
relationship could previously be considered for the purposes of benefits
payable on the death of a spouse who was a member under the DFRDB Act.
The amendments made by this item replaces the term 'marital relationship'
with the term 'couple relationship' in subsection 6A(1) of the DFRDB Act,
and in the section title. The effect of this amendment and the amendments
in item 11 is to ensure that the definition of a relationship, for the
purpose of the payment of death benefits under the DFRDB Act, includes a
same-sex relationship as well as an opposite-sex relationship. The
inclusion of same-sex relationships within this definition is not intended
to change the treatment of married or opposite-sex de facto couples. It
removes same-sex discrimination but does not change or re-define any other
indicia of a relationship.
Item 11
The amendments made by this item replace the phrase 'husband or wife' with
the term 'partner' in subsection 6A(1) of the DFRDB Act. The effect of
this amendment is to ensure that the definition of a relationship, for the
purpose of the payment of death benefits under the DFRDB Act, includes a
same-sex relationship as well as an opposite-sex relationship. The
inclusion of same-sex relationships within this definition is not intended
to change the treatment of married or opposite-sex de facto couples. It
removes same-sex discrimination but does not change or re-define any other
indicia of a relationship. The factual indicia set out in subsection 6A(4)
are applied to couples in the same way whether the couples are the same sex
or different sexes.
Item 12
This item amends subsection 6A(2) as a consequence of the amendment made by
item 11.
Item 13
This item amends subsection 6A(3) as a consequence of the amendment made by
item 10.
Items 14 and 15
Subsection 6(4) of the DFRDB Act outlines circumstances which may be
relevant for arriving at an opinion that a person in a relationship of less
than 3 years duration ordinarily lived with the other person as their
partner on a permanent and bona fide domestic basis. The circumstances
listed are not intended as an exhaustive list but do cover some of the more
common circumstances, such as where the couple are married or have a child
or jointly own their home.
Items 14 and 15 insert a new paragraph 6A(4)(ba) and
subparagraph 6A(4)(c)(iii) into the DFRDB Act to reflect that the concepts
of spouse and child used within the DFRDB Act, for the purpose of the
payment of death benefits, have been extended to cover persons in same-sex
relationships. Item 15 also includes a note that provides that new
subsection 3(6) is relevant to working out when a child is a product of a
relationship for the purposes of the new subparagraph 6A(4)(c)(iii).
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- there is a child who is the product of the relationship between the
persons (see item 2).
The amendments made by items 14 and 15 of the Bill will assist the Defence
Force Retirement and Death Benefits Authority in determining whether two
persons of the same sex had a 'couple relationship' where the relationship
has less than 3 years duration.
As it is intended that the prescribed relationships and prescribed State
and Territory legislation should be the same for the Commonwealth civilian
and military (defined benefit) superannuation schemes, for administrative
convenience they will be specified in the Judges' Pensions Act.
Item 16
This item amends subsections 6B(2) and (3) of the DFRDB Act as a
consequence of the amendment made by item 10.
Item 17
This item amends paragraph 6BA(1)(b) of the DFRDB Act as a consequence of
the amendment made by item 10.
Item 18
This item amends the note to subsection 49D(1) to ensure that the current
terminology can be easily related to the pension entitlements provided
under sections 38 and 39 of the DFRDB Act. This change does not have the
effect of extending benefits to any persons not currently taken to be
eligible under the scheme, rather, it reflects the change of terminology
from 'widow' to 'spouse' that was originally introduced by the Commonwealth
Superannuation Schemes Amendment Act 1992.
Item 19
This item substitutes the term 'widow's pension' in subsection 75(5) of the
DFRDB Act, which relates to benefits payable on the death of a deferred
benefit member, with the term 'spouse pension'. Apart from same-sex
partners of members who die on or after the day the amendment commences,
this change does not have the effect of extending benefits to any persons
not currently taken to be eligible under the scheme, rather, it reflects
the change of terminology from 'widow' to 'spouse' that was originally
introduced by the Commonwealth Superannuation Schemes Amendment Act 1992.
Item 20
This item amends paragraphs 98B(4)(ab), (ac) and (c) by substituting the
term 'widow' with 'spouse'. This ensures that the current terminology is
easily related to the relevant pension entitlements provided under sections
38 and 39 of the DFRDB Act. The effect is the same as that described for
item 19.
Item 21
This item amends paragraphs 98D(1)(a), (b) and (c) by substituting the term
'widow' with 'spouse'. This ensures that the current terminology is easily
related to the pension entitlements provided under sections 38 and 39 of
the DFRDB Act. The effect is the same as that described for item 19.
Item 22
This item amends paragraphs 98D(2)(a), (b), 3(b) and (4)(b) by substituting
the term 'widow' with 'spouse'. This ensures that the current terminology
is easily related to the pension entitlements provided under sections 38
and 39 of the DFRDB Act. The effect is the same as that described for item
19.
Item 23
This item substitutes the term 'widow's pension' in subparagraph
98J(3)(b)(ii) of the DFRDB Act, which relates to the waiving of member
contributions in certain circumstances, with the term 'spouse pension'.
Apart from same-sex partners of members who die on or after the day the
amendment commences, this change does not have the effect of extending
benefits to any persons not currently taken to be eligible under the
scheme, rather, it reflects the change of terminology from 'widow' to
'spouse' that was originally introduced by the Commonwealth Superannuation
Schemes Amendment Act 1992.
Item 24
This item provides that the amendments to the DFRDB Act only apply in
relation to scheme members who die on or after the commencement of the
amendments made by Schedule 3 to the Bill. It does not extend pension
benefits to partners and children of members who die before the commencing
day.
Defence Forces Retirement Benefits Act 1948
Item 25
This item inserts new sections 64AA, 64AB and 64AC into the DFRB Act.
Eligibility under all three proposed sections is measured at the date of
death of the recipient member. The sections each establish a power for the
Authority to allow payment to be made to persons who would meet the
requirements for payment under the DFRDB Act, but for the deceased member
having been a member of the 1948 scheme.
Determinations of eligibility by the Authority are not legislative
instruments for the purposes of the Legislative Instruments Act 2003. This
is consistent with the exemption of reviewable decisions by item 21 of
Schedule 1 of the Legislative Instruments Regulations 2004. Decisions of
the Authority relating to the 1948 scheme may be reviewed by the
Administrative Appeals Tribunal, in accordance with section 99 of the DFRDB
Act
The amendments relate expressly to recipient members under the scheme
because there are no current contributing members in this closed scheme.
Proposed section 64AA
Proposed section 64AA provides that where a pension is not payable to a
person under the DFRB Act as the widow of a member, the person may be
provided with a pension if they would have met the requirements for payment
of a spouse pension under the DFRDB Act had the deceased member been a
recipient member under that latter scheme.
In deciding whether to grant the pension, the Authority must be satisfied
that there are necessitous circumstances, or that the pension is otherwise
warranted. In this case, the discrimination that would occur were the
partner of a deceased member unable to gain a pension due only to their
marital status, despite the existence of a genuine couple relationship
prior to the death of the member, would be a circumstance that would
warrant the grant of a pension.
Proposed section 64AB
Proposed section 64AB provides that where a pension is not payable to a
person under the DFRB Act in respect of the child of a member the child may
be provided with a pension, if the child would have met the requirements
for payment of a child pension under the DFRDB Act, had the deceased member
been a recipient member under that latter scheme. Paragraph 64AB(2)(b)
allows the Authority to approve retrospective payment of the child pension
if satisfied that special circumstances exist, however, this date cannot be
earlier than the commencement date for the amendments.
Proposed section 64AC
Proposed section 64AC provides that where a pension is not payable to a
person under the Act as the orphan of a member, an orphan may be provided
with a pension if they would have met the requirements for payment of a
eligible orphan's pension under the DFRDB Act had the deceased member been
a recipient member under that latter scheme. Paragraph 64AC(2)(b) allows
the Authority to approve retrospective payment of the child pension if
satisfied that special circumstances exist, however, this date cannot be
earlier than the commencement date for the amendments.
Item 26
This item provides that the amendments to the DFRB Act only apply in
relation to scheme members who die on or after the commencement of the
amendments made by Schedule 3 to the Bill. It does not extend pension
benefits to partners and children of members who die before the commencing
day.
Schedule 4-Treasury amendments
This Schedule contains amendments to the Retirement Savings Accounts
Act 1997 (RSA Act), Small Superannuation Accounts Act 1995 (SSA Act),
Superannuation (Government Co-contribution for Low Income Earners) Act 2003
(Co-contribution Act), Superannuation Industry (Supervision) Act 1993 (SIS
Act) and the Income Tax (Transitional Provisions) Act 1997.
Amendments contained in Part 1 of Schedule 4 to the Bill will provide
members of same-sex couples and their children, with the same treatment
under the superannuation regulatory framework as applies to opposite-sex de
facto couples and their children. Amendments to definitions of 'spouse'
and 'child' in a number of superannuation acts will ensure same-sex
partners are treated the same as opposite-sex de facto couples, and
children of same-sex couples are not disadvantaged.
Amendments contained in Part 2 of Schedule 4 will ensure same-sex partners
and children of same-sex couples are treated as dependants for the purposes
of the taxation of superannuation death benefits. The amendments insert
transitional provisions relating to the taxation treatment of death benefit
payments received by a member or a child of a same-sex couple.
Part 1-Superannuation law
Retirement Savings Accounts Act 1997
Item 1
This item amends the definition of 'spouse' in subsection 20(2) of the RSA
Act.
Under this provision in its current form, a person can be considered to be
a spouse if the person lives 'as the husband or wife of the person'.
Currently, only a married or opposite-sex de facto spouse of a person can
be considered to have a relationship as a husband or wife with the person,
and therefore be eligible through this definition to receive superannuation
benefits upon the death of their partner.
The amendment made by this item is intended to extend the existing concept
of a spouse as used within the RSA Act, only so that a person in a same-sex
relationship with an account holder will be eligible to the same
entitlements and recognition provided to persons in an opposite-sex de
facto relationship.
The phrase 'in a relationship as a couple' will incorporate relationships
between persons of the same sex in specified circumstances as well as those
relationships previously referred to as marital relationships. The
inclusion of same-sex relationships within this definition is not intended
to change the treatment of married or opposite-sex de facto couples. It
removes same-sex discrimination but does not change or re-define any other
indicia of a relationship.
Item 2
This item repeals subsection 20(3) of the RSA Act and substitutes an
amended definition of 'child' to include a child of a person's relationship
with another person. The new definition expands the classes of children
that may be taken to be a child of the person for the purposes of
determining the person's dependants. If at any time the person was in a
relationship as a couple, a child who is the product of that couple's
relationship may be taken to be the person's child.
The current law does not recognise the child of a same-sex couple as the
child of both members of the couple. While the child of a married couple
or opposite-sex de facto couple is recognised as the child of both the
birth mother and birth father, the status of a child of a same-sex couple
is often uncertain. For example, while the current definition of a child
recognises the child's relationship with the biological mother or father,
it generally excludes the mother's or father's same-sex partner.
The amendments to the definition of 'child' in the RSA Act will ensure that
where a deceased account holder was a member of a same-sex couple and had a
child who was a product of that relationship, the child is able to receive
the deceased account holder's death benefits as a dependant. The phrase
'relationship as a couple' has the same meaning as set out at Item 1 above.
Paragraph 3(b) of the definition of 'child' provides that a child can be
considered to be a member's child where the child is the product of the
person's relationship with their partner.
Subsection 20(3A) requires that the child is:
- the biological child of at least one person in the relationship, i.e.
is conceived utilising the gametes of one party to the relationship;
or
- the birth child of a woman in the relationship.
A child, who is the product of a person's previous relationship, and who is
brought into the person's current relationship, is not a child of the
person's current relationship.
Examples 1 and 2 below outline the circumstances where a child would meet
the requirements of paragraph (b) of subsection 20(3) and subsection 20(3A)
(which relies on the amended definition of 'child' in the RSA Act). The
circumstances indicated in example 3 would not meet these requirements.
Example 1
J is an account holder and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using gametes from S and a donor. The procedure
takes place and S gives birth to H. Whilst H is the biological child of
S, he is not the biological child of J.
H can be considered J's child for the purposes of the definition of 'child'
in the RSA Act. That is, H is the product of the relationship between J
and S and is S's biological child. This would continue to be the case even
if the relationship between J and S were to break down at a later time.
Example 2
J is an account holder and forms a relationship as a couple with S.
During the relationship J and S decide that S will undergo an artificial
conception procedure using donated gametes. The procedure takes place
and S gives birth to H. Whilst H is the birth child of S, he is not the
biological child of either J or S.
H can be considered J's child for the purposes of the definition of 'child'
in the RSA Act. That is, H is the product of the relationship between J
and S and S is H's birth mother. This would continue to be the case even
if the relationship between J and S were to break down at a later time.
Example 3
J is an account holder and forms a relationship as a couple with S. S
has a child, H, from a previous relationship.
H cannot be considered J's child for the purposes of the definition of
'child' in the RSA Act. Whilst H is S's biological child who is in the
relationship, H is not the product of a relationship between J and S. H's
connection with J only arises because J commenced a relationship with S.
It did not arise from any actions of the couple to add a child to their
relationship and therefore is not a product of the person's relationship
with that partner.
Item 3
This item provides that amendments to the RSA Act made by Schedule 4 to the
Bill are to apply to the 2008-2009 year of income and later years.
Small Superannuation Accounts Act 1995
Item 4
This item inserts a definition of 'child' into the SSA Act. For the
purposes of the SSA Act, the term 'child' has the same meaning as the
definition of 'child' in the SIS Act.
Inserting a definition of 'child' into the SSA Act clarifies the nature of
employer deposits that can be made to an individual's account in the
Superannuation Holding Accounts Special Account. It reflects the
definition in the SIS Act which will recognise children who are the product
of a person's relationship with another person as a couple.
Item 5
This item amends the definition of 'spouse' in the SSA Act to include a
person who is in a relationship with another person as a couple, whether or
not the persons are of the same sex or different sexes.
Under this provision in its current form, a person can be considered to be
a spouse if the person lives 'as the husband or wife of the person'.
Currently, only an opposite-sex de facto or married spouse of a person can
be considered to have a relationship as a husband or wife with the person.
The amendment made by this item extends the existing concept of a spouse as
used within the SSA Act, only so that a person in a same-sex relationship
with an account holder will be eligible to the same entitlements and
recognition provided to persons in an opposite-sex de facto relationship.
The amendments, other than extending to same-sex partners, should not be
taken to cover any other type of relationship not already covered by the
SSA Act.
The phrase 'in a relationship as a couple' will incorporate both
relationships between persons of the same sex in specified circumstances as
well as those relationships previously referred to as marital
relationships. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
The amendment to the definition of 'spouse' in the SSA Act will ensure a
partner in a same-sex relationship is recognised as a dependant of the
account holder for the purposes of determining allowable employer deposits
to the Superannuation Holding Accounts Special Account.
Item 6
This item provides that amendments to the SSA Act made by Schedule 4 to the
Bill are to apply to the 2008-2009 year of income and later years.
Superannuation (Government Co-contribution for Low Income Earners) Act 2003
Item 7
This item amends the definition of 'spouse' in the Co-contribution Act to
include a person who is in a relationship as a couple with a beneficiary of
a Government co-contribution, whether the beneficiary and the person are
different sexes or the same sex.
Under this provision in its current form, a person can be considered to be
a spouse if the person lives 'as the beneficiary's husband or wife'.
Currently, only an opposite-sex de facto or married spouse of a person can
be considered to have a relationship as a husband or wife with the
beneficiary.
The amendment made by this item is intended to extend the existing concept
of a spouse as used within the Co-contribution Act, only so that a person
in a same-sex relationship with a beneficiary will be eligible for the same
recognition provided to persons in an opposite-sex de facto relationship.
The phrase 'in a relationship as a couple' will incorporate both
relationships between persons of the same sex in specified circumstances as
well as those relationships previously referred to as marital
relationships. The inclusion of same-sex relationships within this
definition is not intended to change the treatment of married or opposite-
sex de facto couples. It removes same-sex discrimination but does not
change or re-define any other indicia of a relationship.
For the purpose of the Minister reporting to Parliament on the Government
co-contribution for low income earners, the extended definition of 'spouse'
in the Co-contribution Act recognises that a beneficiary of a Government co-
contribution can have a same-sex de facto partner.
Item 8
This item provides that amendments to the Co-contribution Act made by this
Schedule are to apply to the 2008-2009 year of income and later income
years.
Superannuation Industry (Supervision) Act 1993
Item 9
This item amends the definition of 'child' in the SIS Act to include a
child of a person's relationship as a couple. The new definition expands
the classes of children that may be taken to be a child of the person for
the purposes of determining the person's dependants. If at any time the
person was in a relationship as a couple, a child who is the product of
that couple's relationship may be taken to be the person's child.
The current law does not recognise the child of a same-sex couple as the
child of both members of the couple. While the child of a married couple
or opposite-sex de facto couple is recognised as the child of both the
birth mother and birth father, the status of a child of a same-sex couple
is often uncertain. For example, while the current definition of a child
recognises the child's relationship with the biological mother or father,
it generally excludes the mother's or father's same-sex partner.
The amendments to the definition of 'child' in the SIS Act will ensure
that, where a fund member was a member of a same-sex couple and had a child
who was a product of that relationship, the child is able to receive the
deceased member's superannuation death benefits as a dependant. The phrase
'in a relationship as a couple' has the same meaning as set out at item 10
below.
Paragraph (b) of the definition of 'child' in subsection 10(1) inserted by
item 11 provides that a child can be considered to be a member's child
where the child is the product of the person's relationship with their
partner.
Subsection 10(5) requires that the child is:
- the biological child of at least one person in the relationship, i.e.
is conceived utilising the gametes of one party to the relationship;
or
- the birth child of a woman in the relationship.
A child, who is the product of a person's previous relationship, and who is
brought into the person's current relationship, is not a child of the
person's current relationship.
Item 9 also inserts a note at the end of the new definition of 'child', to
identify that new subsection 10(5) of the SIS Act is relevant to working
out when a child is a product of a relationship for the purposes of
paragraph (b) of the definition of 'child'.
Examples 1 and 2 below outline the circumstances where a child would meet
the requirements of paragraph (b) of the definition of 'child' in
subsection 10(1) and subsection 10(5). The circumstances indicated in
example 3 would not meet these requirements.
Example 1
J is a fund member and forms a relationship as a couple with S. During
the relationship J and S decide that S will undergo an artificial
conception procedure using gametes from S and a donor. The procedure
takes place and S gives birth to H. Whilst H is the biological child of
S, he is not the biological child of J.
H can be considered J's child for the purposes of the definition of 'child'
in the SIS Act. That is, H is the product of the relationship between J
and S and is S's biological child. This would continue to be the case even
if the relationship between J and S were to break down at a later time.
Example 2
J is a fund member and forms a relationship as a couple with S. During
the relationship J and S decide that S will undergo an artificial
conception procedure using donated gametes. The procedure takes place
and S gives birth to H. Whilst H is the birth child of S, he is not the
biological child of either J or S.
H can be considered J's child for the purposes of the definition of 'child'
in the SIS Act. That is, H is the product of the relationship between J
and S and S is H's birth mother. This would continue to be the case even
if the relationship between J and S were to break down at a later time.
Example 3
J is a fund member and forms a relationship as a couple with S. S has
a child, H, from a previous relationship.
H cannot be considered J's child for the purposes of the definition of
'child' in the SIS Act. Whilst H is S's biological child who is in the
relationship, H is not the product of a relationship between J and S. H's
connection with J only arises because J commenced a relationship with S.
It did not arise from any actions of the couple to add a child to their
relationship and therefore is not a product of the person's relationship
with that partner.
The amendments to the definition of 'child' in the SIS Act will ensure that
a child who is a product of a same-sex relationship is able to receive
superannuation death benefits as a dependant, upon the death of the fund
member in the same-sex relationship.
Item 10
This item amends the definition of 'spouse' in the SIS Act to include a
person who is in a relationship with another person as a couple, whether or
not the persons are of the same sex or different sexes.
Under this provision in its current form, a person can be considered to be
a spouse if the person lives 'as the husband or wife of the person'.
Currently, only a married or opposite-sex de facto spouse of a person can
be considered to have a relationship as a husband or wife with the person
and therefore, for example, be eligible through this definition to receive
superannuation benefits upon the death of their partner.
The amendment made by this item is intended to extend the existing concept
of a spouse as used within the SIS Act, only so that a person in a same-sex
relationship with a fund member will be eligible to the same entitlements
and recognition provided to persons in an opposite-sex de facto
relationship.
The phrase 'in a relationship as a couple' will incorporate relationships
between persons of the same sex in specified circumstances as well as those
relationships previously referred to as marital relationships. The
inclusion of same-sex relationships within this definition is not intended
to change the treatment of married or opposite-sex de facto couples. It
removes same-sex discrimination but does not change or re-define any other
indicia of a relationship.
The amendments to the definitions of 'spouse' in the SIS Act will ensure a
person in a same-sex relationship is able to receive their partner's
superannuation benefits as a dependant, upon the death of their partner.
Item 11
This item inserts subsection 10(5) to provide that for the purposes of the
SIS Act a child cannot be the product of a relationship, whether between
same or opposite-sex partners, unless the child is the biological child of
at least one person in the relationship or is born to a woman in the
relationship. This is relevant to provisions, such as the new
paragraph (b) of the definition of 'child' in subsection 10(1) being
inserted by item 9 into the SIS Act.
Item 12
This item provides that amendments to the SIS Act made by Schedule 4 to the
Bill are to apply to the 2008-2009 year of income and later years.
Part 2-Taxation law
Income Tax (Transitional Provisions) Act 1997
Item 13
The meaning of 'spouse' and 'child' in section 295-485 of the Income Tax
Assessment Act 1997 (ITAA 97) will be modified by reference to amended
definitions in the SIS Act. This amendment removes the differential
treatment between opposite-sex couples and their children, and same-sex
couples and their children, with regard to the ability of a trustee of a
superannuation fund to increase the amount of a superannuation lump sum
death benefit.
The modified meanings of 'spouse' and 'child' will ensure a trustee of a
superannuation fund can claim a deduction, where the superannuation fund
refunds tax paid on contributions made during the lifetime of the deceased
member, to the member's same-sex partner, former same-sex partner or a
child who is a product of the deceased member's relationship with another
person.
The amendments to the definitions of 'spouse' and 'child' in the
superannuation acts apply to the 2008-09 income year and later years.
These amendments apply for the 2008-09 income year only.
A transitional provision is necessary for the taxation of superannuation as
a consequence of the amendments to superannuation law applying from 2008-
09. The removal of same-sex discrimination in tax law more generally is
intended to apply for the 2009-10 income year and later years under the
phased-in introduction of the relevant legislation to remove discrimination
against same-sex couples.
Item 14
The definition of 'death benefits dependant' used in Subdivision 82-B of
Division 82, Division 302 and section 303-5 of the ITAA 97, is modified by
reference to the amended definitions of 'spouse' and 'child' in the SIS
Act. These provisions in the ITAA 97 relate to the taxation of
superannuation death benefit payments, superannuation death benefits paid
in special circumstances and death benefit termination payments. These
amendments remove the differential tax treatment of superannuation death
benefit payments to members of same-sex couples and their children.
Under current income tax law, a member of a same-sex couple who receives
his or her deceased partner's superannuation death benefits is taxed
concessionally only where the person satisfies the criteria for an
interdependency relationship with the deceased member. If the criteria
cannot be satisfied, the person is unable to receive the deceased member's
benefits as a reversionary pension, and will be taxed as a non-dependant on
lump sum death benefit payments.
The modified meaning of 'death benefits dependant' ensures a member of a
same-sex couple is taxed concessionally on the deceased member's death
benefits, regardless of whether he or she satisfies the interdependency
criteria. That is, the surviving member of the couple may receive the
deceased member's superannuation benefits as a reversionary pension, or
alternatively receive the superannuation death benefits as a lump sum tax-
free.
Similarly, upon the death of a person in a same-sex relationship, a child
of that relationship who is under 18 years of age is taxed concessionally
on receipt of the deceased member's superannuation death benefits.
The amendments to the definitions of 'spouse' and 'child' in the
superannuation acts apply to the 2008-09 year of income and later years.
The modified meaning of 'death benefits dependant', 'spouse' and 'child' in
the death benefit provisions of the ITAA 97 apply to the 2008-09 income
year only. This transitional provision ensures that a member or a child of
a same-sex couple who receives the deceased member's death benefits, is
taxed concessionally on those benefits for the 2008-09 income year.
A transitional provision is necessary for the taxation of superannuation
death benefits as a consequence of the amendments to superannuation law
applying from 2008-09. The removal of same-sex discrimination in tax law
more generally is intended to apply for the 2009-10 income year and later
years under the phased-in introduction of the relevant legislation to
remove discrimination against same-sex couples.
Schedule 5-Prime Minister and Cabinet amendments
This Schedule contains amendments to the Governor-General Act 1974 (the
GG Act) which makes provision for the salary of the Governor-General and
the payment of allowances to persons who have held the office of Governor-
General and their spouses.
Currently, where a person who is Governor-General dies, or a person who
held the office of Governor-General dies, an allowance is payable to the
spouse of the person. The allowance is available only to a married or
opposite-sex de facto spouse of a deceased person. The eligibility of a
spouse to an allowance depends in part on whether the person is in a
marital relationship with the Governor-General or former Governor-General
at the time of the Governor-General's or former Governor-General's death.
Under the Act, children are not recognised for eligibility purposes and are
not themselves entitled to any allowance.
These amendments will make an allowance arising from the death of a scheme
member available to an eligible same-sex partner of the Governor-General or
former Governor-General.
From the commencement of these amendments, eligibility for a spouse's
entitlement will be linked to whether a person was in a couple relationship
with a Governor-General or former Governor-General at the time of their
death. A couple relationship will extend to relationships between persons
of the same sex in specified circumstances as well as those relationships
previously referred to as marital relationships.
Item 1
This item inserts a signpost to the definition of the term 'couple
relationship' in section 2B of the GG Act.
Item 2
This item inserts a signpost to the definition of the term 'spouse' in
section 2C of the GG Act.
Items 3 and 4
Sections 2B and 2C of the GG Act set out the requirements for a person to
be considered to be a spouse for the payment of an allowance. A person can
be considered to be a spouse if the person had a marital relationship with
the Governor-General at a particular time as defined in subsection 2B(2) of
the GG Act. An element of having a marital relationship is that the person
ordinarily lived with another person as that other person's husband or
wife. This means that currently only a married or opposite-sex de facto
spouse of a deceased Governor-General or former Governor-General can be
considered to have had a marital relationship with the Governor-General or
former Governor-General and therefore be eligible for an allowance as a
spouse.
The amendments made by item 3 and item 4 will extend the entitlement to an
allowance to persons of the same sex as the Governor-General. This is
achieved by replacing the term 'marital relationship' with the term 'couple
relationship' and replacing the phrase 'husband or wife' with the term
'partner'.
Item 3 replaces the term 'marital relationship' with the term 'couple
relationship' in subsection 2B(2) of the GG Act. The heading to section 2B
is also replaced with a new heading that refers to a 'couple relationship'.
Item 4 replaces the phrase 'husband or wife' with the term 'partner' in
subsections 2B(2) and (3). The term 'partner' is defined in subsection
2B(6) of the GG Act (see item 7).
Item 5 and 6
Subsection 2B(4) of the GG Act outlines some circumstances which may be
relevant for arriving at an opinion that a person had a couple relationship
with the other person as their husband or wife on a permanent and bona fide
domestic basis. The circumstances listed are not intended as an exhaustive
list but cover some of the more common circumstances, such as where the
couple are married or have a child or jointly own their home.
This item inserts paragraph 2B(4)(c)(iii) into the GG Act, which extends
the existing concept of who can be considered to be a spouse for the
payment of an allowance to cover persons in same-sex relationships.
Relevant evidence will now include whether:
- the persons' relationship is registered under a State or Territory
law prescribed for the purposes of paragraph 4AB(4)(ba) of the
Judges' Pensions Act 1968 as a kind of relationship prescribed for
the purposes of that paragraph; and
- in the case of persons who are of the same sex, whether there is a
child of the relationship.
This will assist the Commissioner for Superannuation in determining whether
two persons of the same sex had a 'couple relationship' where the
relationship is less than 3 years.
As it is intended that the prescribed relationships and prescribed State
and Territory legislation should be the same for the Commonwealth civilian
and military (defined benefit) superannuation schemes, for administrative
convenience they will be specified in the Judges' Pensions Act.
Item 7
This item inserts a definition of 'partner' into subsection 2B of the GG
Act. This amendment is related to the amendment being made to the GG Act
by item 4. It would define the word 'partner' to include a person in a
same-sex relationship with a Governor-General or former Governor-General.
Item 7 also inserts a new subsection 2B(7) to provide that a child cannot
be the product of the relationship between two persons, whether the persons
are the same sex or different sexes, unless the child is the biological
child of at least one of the persons or is born to a woman in the
relationship.
Item 8
This item amends subsection 2C of the GG Act as a consequence of amendments
made by item 3.
Item 9
This item provides that the amendments made to the GG Act by Schedule 5 to
the Bill will only apply in relation to a person who is appointed as
Governor-General on or after the commencement of Schedule 5 to the Bill.