refusal
to pay death benefits to a same sex partner;
failure
to investigate or acknowledge the claim of dependency of a child of
the same sex couple when the contributor is not the biological parent;
and
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.
Super funds
interpret the Act to mean they are not permitted to recognise same sex
partners and their children as dependants. Even where a contributor
has nominated a partner or child as their beneficiary, super funds are
required to apply the definition of dependant so the wishes of the deceased
are not followed.
Refusal
to pay death benefits causes impoverishment
Probably
the most important result of discrimination is the failure to pay death
benefits. 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
Following
Greg Brown's unsuccessful appeal, the Human Rights and Equal Opportunity
Commission conducted an inquiry into Australian superannuation legislation.
Commissioner Chris Sidoti's report, published in April 1999 and tabled
in Parliament, 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
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
will 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.
This Bill
lapsed with the 1998 Federal election, but was reintroduced in November
1998. Debate on the Bill was then adjourned and as the Government refused
to allow full debate on the Bill, it lapsed in October 1999. Mr Albanese
has given notice of his intention to move the Bill again.
Recent
legislative developments
Earlier
this year the Government amended superannuation legislation to make
it possible for superannuation funds to accept binding death benefit
nominations. Until now, superannuation funds have not been required
to follow the directions given by contributors for the payment of death
benefits. The recent changes allow funds to change their rules, if they
choose to do so, to accept binding directions from contributors.
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. As the definition of 'dependant'
still excludes same sex partners, funds will be unlikely to follow any
directions to pay benefits to surviving same sex partners. To date,
few if any funds have changed their rules to accept binding directions
concerning payment of death benefits.
How
you can help
