Senate

Explanatory Memorandum

Circulated By the Authority of the Attorney-General, the Hon Robert Mcclelland Mp

Outline

1 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

2 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.

3 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

4 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.

5 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.

6 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.

7 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

8 The measures in this Bill will have the following financial impact over four years:

Expense ($ million)

(A minus sign before an estimate indicates a reduction in expenses, no sign before an estimate indicates increased expenses.)

Capital ($ million)

(A minus sign before an estimate indicates a reduction in capital, no sign before an estimate indicates increased capital.)

Revenue ($ million)

(A minus sign before an estimate indicates a reduction in revenue, no sign before an estimate indicates a gain to revenue.)

9 The measures have an ongoing financial impact.

10 The measures in this Bill will result in the following approximate increase in unfunded liability on commencement of the Act:

Regulation Impact Statement

11 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

12 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

13 Clause 2 provides for the commencement of the Act.

14 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.

15 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.

16 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.

17 Clauses 1 to 3 will commence on the day on which this Act receives the Royal Assent.

18 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.

19 Schedule 4 to the Bill will commence on 1 July 2008.

Clause 3 - Schedule(s )

20 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.