taxation
of benefits where they are paid to the contributor's estate and the
surviving beneficiary, whereas there is a taxation concession for
heterosexuals.
Why
does this occur?
These
problems arise because the Superannuation Industry (Supervision)
Act does not include same sex partners or non-biological children
of same sex relationships as dependants of the contributor.
Refusal
to pay death benefits causes impoverishment
Death
benefits may not be paid even if the surviving partner was completely
financially dependent on the person who has died.
These
problems were illustrated in the case of Greg Brown after the death
of his partner of 10 years, Robert Corva. Greg unsuccessfully took
action in the Administrative Appeals Tribunal when the Commonwealth
Superannuation Scheme, to which Robert had contributed for 17 years,
refused to pay Greg death benefits. Greg then took the matter to
the Human Rights and Equal Opportunity Commission, which found that
while he had been treated unequally, the discrimination was lawful.
Discrimination
breaches international treaties
This
case prompted a Human Rights and Equal Opportunity Commission inquiry
into Australian superannuation legislation which found that the
current legislation breaches two international conventions to which
Australia is a signatory - the International Covenant on Civil and
Political Rights and the International Labour Organisation Discrimination
(Employment and Occupation) Convention. Commissioner Sidoti recommended
that legislation be amended to allow surviving same sex partners
the same access to benefits as heterosexuals.
Changing
the law
All
that is needed is a simple definitional change which would bring
the super law into line many state laws.
In
February 1998, Anthony Albanese, Labor MP moved a private member's
bill in Federal Parliament - the Superannuation (Entitlements of
Same Sex Couples) Amendment Bill. If passed, the Bill would include
same sex partners and children of same sex relationships in the
definition of dependant.
The
Bill would also prevent discrimination against a beneficiary on
the basis of race, colour, sex, sexual preference, transgender status,
marital status, family responsibilities, religion, political opinion,
or social origin.
There
is broad support for a change
The
Senate Select Committee on Superannuation and Financial Services
inquired into Albanese's Bill in 2000 and recommended that the Bill
be passed.
The
inquiry received an unprecedented 1200 submissions and almost all
favoured reform - only 5 opposed equal rights for same sex couples.
Submissions
in favour included major superannuation industry groups and experts.
No expert or industry group opposed the reform. Despite this support
the Government has not allowed the Bill to proceed and discrimination
continues.
What
about death benefit nominations?
When
joining a super fund, contributors are usually asked to complete
paperwork that includes nominating who they want to receive their
death benefit. Lots of people are reassured by this and think because
they have nominated their partner, she or he is sure to receive
the benefit. This is wrong. Nominations are generally not binding.
Even where a contributor has nominated a partner or child as their
beneficiary, super funds are required to apply the definition of
dependant and the wishes of the deceased may not be followed.
In
1999 the Howard Government amended superannuation legislation to
make it possible for superannuation funds to change their rules
so as to accept binding death benefit nominations. The Government
has suggested that these changes solve the problem for same sex
couples. This is not the case. Superannuation funds are still required
to see that benefits are paid to dependants and the definition of
'dependant' still excludes same sex partners. The cumbersome procedures
involved and lack of benefit mean that few if any funds have changed
their rules.
There
have been enough inquiries, it's time for change
How
you can help
To
help end discrimination in superannuation simply - Ring or write
to your Federal MP. Explain the problem and how it affects you.
Ask him or her to support change. To find out contact details for
your local MP, visit the Parliament of Australia website at www.aph.gov.au
You
can also support the Lobby's fight for equal rights by becoming
a member or volunteer or making a donation.
