Commonwealth of Australia Explanatory Memoranda

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SAME-SEX RELATIONSHIPS (EQUAL TREATMENT IN COMMONWEALTH LAWS-SUPERANNUATION) BILL 2008

2008



               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                          HOUSE OF REPRESENTATIVES





           Same-sex relationships (Equal Treatment in Commonwealth
                      laws - superannuation) BILL 2008






                FURTHER SUPPLEMENTARY EXPLANATORY MEMORANDUM


             Amendments to be Moved on Behalf of the Government




            (Circulated by the authority of the Attorney-General,
                     the Honourable Robert McClelland MP)


           Same-sex relationships (Equal Treatment in Commonwealth
                      laws - superannuation) BILL 2008

GENERAL OUTLINE

The purpose of the Same-Sex Relationships (Equal Treatment in Commonwealth
Laws - Superannuation) Bill 2008 (the Superannuation Bill) is to eliminate
discrimination against same-sex couples and the children of same-sex
relationships in Commonwealth Acts that provide for reversionary
superannuation benefits upon the death of a scheme member, and in related
taxation treatment of superannuation benefits.

The Government amendments proposed to the Superannuation Bill will ensure
that those people who would have been entitled to one or more payments
except that:

    . Schedules 1, 2, 3, or 5 of the Superannuation Bill did not commence on
      1 July 2008

    . the first amendment to the Trust Deed made under the Military
      Superannuation and Benefits Act 1991 made after the commencement of
      new Section 4 did not commence on 1 July 2008, or

    . the first amendment to the Trust Deed made under the Superannuation
      Act 1990 made after the commencement of new Section 4 did not commence
      on 1 July 2008,

will be entitled to make an application to the Finance Minister for one or
more replacement payments.

The Government amendments will also amend commencement dates for the Bill.
These amendments are consistent with amendments previously tabled by the
Government in the Senate.  The amendment will also provide that Part 1 of
Schedule 2, which provides a definition of 'de facto partner' in the Acts
Interpretation Act 1901, will commence on Royal Assent.  Given the reliance
of the amendments made by the Same-Sex Relationships (Equal Treatment in
Commonwealth Laws-General Law Reform) Bill 2008 on this definition it is
desirable for this definition to commence as soon as possible.

Financial Impact Statement

There is estimated to be an ongoing financial impact for these measures.
NOTES ON AMENDMENTS

Amendment 1

This amendment amends Table Item 1 in Clause 2 of the Superannuation Bill
as a consequence of the insertion of a new Clause 4 of the Bill by
Amendment 4.  Table Item 1 as amended by these Parliamentary amendments
provides that Clauses 1 to 4 of the Bill will commence on the day that it
receives Royal Assent.

Amendment 2

This amendment omits Table Item 3 and inserts new Table Items 3, 3A, 3B and
3C into Clause 2 of the Superannuation Bill.

Amended Table Item 3 provides that Part 1 of Schedule 2 to the
Superannuation Bill commences on the day on which it receives Royal Assent.
 Part 1 of Schedule 2 to the Superannuation Bill will insert a definition
of 'de facto partner' into the Acts Interpretation Act 1901.  Given the
reliance of the amendments made by the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws-General Law Reform) Bill 2008 on this
definition it is desirable for Part 1 of Schedule 2 to commence as soon as
possible.

Table Item 3A is similar to previous Table Item 3 and provides that Part 2
of Schedule 2 to the Superannuation Bill will commence at the same time as
the provisions covered by Table Item 2.

Table Item 3B provides that Part 3 of Schedule 2 to the Superannuation Bill
commences on the day on which it receives Royal Assent.  Part 3 was
inserted by previous Government amendments and provides a power for the
Governor-General to make regulations prescribing matters of a transitional
nature relating to amendments made by the Superannuation Bill.  Because
this power deals with transitional provisions it is desirable for it to
commence as soon as possible.

Table Item 3C is similar to previous Table Item 3 and provides that
Schedule 3 to the Superannuation Bill will commence at the same time as the
provisions covered by Table Item 2.

Amendment 3

This amendment inserts Table Item 4A into Clause 2 of the Superannuation
Bill.  Table Item 4A provides that Part 3 of Schedule 4 to the
Superannuation Bill commences on the day on which it receives the Royal
Assent.  Part 3 was inserted by previous Government amendments and provides
application provisions to allow the amendments to the concept of 'child' in
the Family Law Act which will be made by the Family Law Amendment Bill and
supporting regulations to apply from 1 July 2008.

Table Item 4 of Clause 2 of the Superannuation Bill is amended as a
consequence of the insertion of Table Item 4A.

Amendment 4

This amendment inserts new clause 4 into the Superannuation Bill to provide
for replacement payments for people who would have been entitled to
superannuation payments if the Superannuation Bill had commenced on 1 July
2008.  The intention of this provision is to place the person in the
position they would have been in if the provisions of the Superannuation
Bill had commenced on 1 July 2008, taking into account any relevant
circumstances, including whether they have already received money from
their partner's superannuation through their partner's estate.

Subclause 4(1) provides a mechanism which will allow a person who would
have been entitled to one or more payments except that Schedules 1, 2, 3,
or 5 of the Superannuation Bill did not commence on 1 July 2008 to make an
application to the Finance Minister for one or more replacement payments.
If each of paragraphs 4(1)(a), (b) and (c) are satisfied, the Finance
Minister must make a determination in accordance with subclause 4(4) in
order to fully compensate the person for the payments to which they would
have been entitled.

Subclause 4(2) provides a mechanism which will allow a person who would
have been entitled to one or more payments, except that the first amendment
to the Trust Deed made under the Military Superannuation and Benefits Act
1991 made after the commencement of Clause 4 did not commence on 1 July
2008, to make an application to the Finance Minister for one or more
replacement payments.  If each of paragraphs 4(2)(a), (b) and (c) are
satisfied, the Finance Minister must make a determination in accordance
with subclause 4(4) in order to fully compensate the person for the
payments to which they would have been entitled.

Subclause 4(3) provides a mechanism which will allow a person who would
have been entitled to one or more payments except that the first amendment
to the Trust Deed made under the Superannuation Act 1990 made after the
commencement of Clause 4 did not commence on 1 July 2008 to make an
application to the Finance Minister for one or more replacement.  If each
of paragraphs 4(3)(a), (b) and (c) are satisfied, the Finance Minister must
make a determination in accordance with subclause 4(4) in order to fully
compensate the person for the payments to which they would have been
entitled.

Subclause 4(4) provides that a determination by the Finance Minister made
under subclause 4(4) must be in writing and must set out the amount and
timing of the replacement payments or the method by which those matters
were determined.

Subclause 4(5) provides that such an application must be made in writing in
a form approved by the Finance Minister.

Subclause 4(6) clarifies that a determination by the Finance Minister under
this provision will not affect the entitlements of any other person under
an Act amended by Schedule 1, 2, 3 or 5 to the Superannuation Bill, the
Military Superannuation and Benefits Act 1991 or the Superannuation Act
1990.

Subclause 4(7) provides for an appropriation for the replacement payments
out of the Consolidated Revenue Fund.

Subclause 4(8) is included to assist readers, as the determination made by
the Finance Minister is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003.

Subclause 4(9) defines 'Finance Minister' for the purposes of the clause to
mean the Minister who administers the Financial Management and
Accountability Act 1997.