one of the main ways of saving for retirement. It is designed to provide
financial security for individuals and their families in retirement; or when a
person dies unexpectedly. Superannuation is often a person’s largest asset
apart from the family home. Most people expect that their superannuation
entitlements will be inherited by a partner, children or other dependants. But
for people in same-sex couples and families, this is not currently always the case.
discusses the issue of same-sex discrimination in relation to key provisions of
the Bill, including:
- same-sex discrimination in Commonwealth superannuation laws;
- Australia's international obligations regarding same-sex
- key provisions intended to eliminate same-sex discrimination in Commonwealth
Same-sex discrimination in Commonwealth superannuation laws
superannuation (defined benefit) schemes currently provide reversionary
benefits to married couples and opposite-sex de facto couples.
However, the primary eligibility criterion, 'marital relationship', does not
include same-sex couples or their children.
Dr John Challis, convenor of the Comsuper Action Committee,
described how such Commonwealth superannuation laws have affected him and his
I will be 80 in
September. As a former ABC Senior officer I receive a Commonwealth Defined
Benefit indexed pension, paid fortnightly. My partner Arthur Cheeseman is 76 and worked as a pharmacist
under the Shop Assistant award, which did not include superannuation. If I die
first he will not be entitled, under existing laws, to the 2/3 reversionary
pension which a wife or heterosexual de facto partner would receive.
My partner and I
have lived together since 1967 (over 40 years) and have always owned our
residence in common and had joint bank accounts and mortgages. While we both
worked we lived on Arthur's weekly cash wages so that my salary
went into the bank to pay the mortgage and bills. I also paid extra money into
superannuation so as to get the maximum pension. This means that my pension
belongs to both of us. It is the core income we have to live on. If I
predecease Arthur, before this new Bill is passed into law, he will lose this core source of
Dr Challis's personal example illustrates the
adversity and detriment experienced by same-sex couples in Commonwealth
superannuation schemes. It also introduces an argument presented to the
committee that the Bill is time critical.
We are concerned
that these changes happen as quickly as possible. There are people who have
been struggling with this for a long time in their lives; there are people who
have been affected as their partners die.
The committee notes
that various submissions and evidence requested that the Bill's operational
date be backdated to 1 July 2008 (when Schedule 4 of the Bill was due to
commence); 9 November 2007 (when the then Howard Government announced its
election policy to recognise same-sex couples); or 22 June 2004 (when the Howard
Government first announced its support for same-sex recognition in Commonwealth
considerable support for both the intent and provisions of the Bill. The main reason for this support was that there was no apparent
reason to discriminate between opposite-sex and same-sex couples in the
provision of reversionary pensions or death benefits to a surviving partner.
However, there were a
number of submissions that opposed aspects of the Bill. The reasons for this opposition varied with some
submissions objecting on social, religious or moral grounds. Many of these
submissions considered that the provisions of the Bill would undermine the institution of marriage.
Australia's international obligations regarding same-sex discrimination
As detailed in
chapter 2, the primary catalyst for the Bill was the HREOC Same-Sex: Same
Entitlements report which found that Commonwealth superannuation (defined
benefit) laws discriminated against same-sex couples and their families in
breach of Australia's international obligations, namely, Article 26 of the
International Covenant on Civil and Political Rights (ICCPR), and Articles 2
and 3 of the Convention on the Rights of the Child (CRC).
Principle 13(a) of the
Yogyakarta Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity is also relevant:
(a) Take all
necessary legislative, administrative and other measures to ensure equal
access, without discrimination on the basis of sexual orientation or gender
identity, to social security and other social protection measures, including
employment benefits, parental leave, unemployment benefits, health insurance or
care or benefits (including for body modifications related to gender identity),
other social insurance, family benefits, funeral benefits, pensions and
benefits with regard to the loss of support for spouses or partners as the
result of illness or death.
Several submissions referred
to Australia's international treaty obligations. Representative
of these views was that of Uniting Justice Australia
(the justice and advocacy agency of the Uniting Church in Australia National Assembly), citing
Article 26 of the ICCPR and Article 3(1) of the CRC:
arrangements for superannuation death benefits and taxation treatment in the
Acts proposed for amendment in the [Bill] do not meet Australia’s international commitments...
UN treaty bodies
interpreting these provisions have agreed that the right to non-discrimination
includes protection from discrimination on the grounds of sexual orientation...
superannuation or tax laws which exclude same-sex couples from entitlements and
concessions available to heterosexual couples breach the right to equal
protection of the law under the Conventions.
The Human Rights
Council of Australia considered it important for the Bill to be enacted with specific reference to Australia's international obligations.
Key provisions intended to eliminate same-sex discrimination in
Commonwealth superannuation laws
The Bill proposes to replace existing key terminology as part of the
process of addressing same-sex discrimination in Commonwealth superannuation laws.
'Partner' and 'couple relationship' will replace references to 'husband or
wife' and 'marital relationship'. The definition of 'child' is also expanded.
The Bill does not
propose to insert new definitions of 'de facto relationships' or 'de facto
partners' into the affected Acts, notwithstanding that HREOC's preferred
approach was to:
- retain current terminology;
- redefine current terminology to include same-sex couples; and
- insert new definitions of ‘de facto relationship’ and ‘de facto
partner’ which include same-sex couples.
It is important to
note that HREOC, having critically examined the Bill,
endorsed it as carrying out its recommendations.
The following section
of the report discusses the proposed new, or expanded, terminology used in the Bill in relation to:
- 'partner' and 'couple relationship'; and
New definition of 'partner' and 'couple
A number of
submissions and evidence agreed that the new definitions of 'partner' and
'couple relationship' will ensure that both same-sex and opposite-sex couples
are included in the definition of a relationship for the purpose of the payment
of reversionary pensions or death benefits.
In addition, the
Association of Superannuation Funds of Australia submitted that the provisions
of the Bill will 'be capable of being administered
by funds without undue complication.'
Attorney-General's Department unequivocally stated:
This new concept of
couple relationships 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.
HREOC agreed that the
retention of the terminology of 'spouse' and 'eligible spouse' achieve this
as did Associate Professor Miranda Stewart.
This will ensure
that the words ‘husband’ and ‘wife’ will apply only to a formally married
opposite sex couple and will not be used to apply to other forms of de facto
relationship (whether same sex or opposite sex). This exclusive use of ‘husband
and wife’ for a married couple is accurate, simple and makes it clear that the
reforms do not affect the status of a de jure married couple in Australia.
However, the equal
treatment, ease of administration, and clarity provided by these new provisions
was not sufficient to persuade all submitters and witnesses that the Bill maintains the status quo of marriage and opposite-sex de
The status of marriage
expressed the view that in law marriage and the family are entitled to special
recognition and protection,
and Article 16(3) of the Universal Declaration of Human Rights grounds this
The family is the
natural and fundamental group unit of society and is entitled to protection by
society and the State.
In relation to the Bill, a range of submissions and evidence argued that the
proposed terminology does not preserve the unique position afforded to
Christian Lobby argued that the new terminology might create a presumption that
all relationships are the same, thereby undermining the intent of the Marriage
We are concerned
that in removing any unjust discrimination that we do not set up a situation
where we remove the terminology of marriage...Equal access for married, de facto
and same-sex couples to benefits and entitlements can be achieved without
eliminating marriage from Commonwealth law.
Professor Patrick Parkinson agreed that there are 'good social
reasons' for specially recognising marriage in law. Unlike Associate Professor Stewart, Professor Parkinson viewed marriage as 'almost entirely
lost' in the Bill, adding:
This is not the Bill in which to make a major social statement that the
Government no longer considers marriage to be important...There must be a
better time and place to debate that very important moral and social question.
A view expressed in a
large number of similarly worded submissions was that:
Marriage should not
be devalued by treating it as just another "couple relationship"
along with same sex relationships.
Undermining and devaluing marriage?
As has been suggested
in preceding paragraphs, a number of submissions and witnesses were concerned
that, essentially, the Bill undermines and devalues marriage. However,
there were also a range of submissions which discounted the view that the Bill somehow undermines marriage. The committee notes that there
is no proposal within this Bill to amend the Marriage Act 1961.
Uniting Justice Australia submitted:
The understanding of
marriage as a heterosexual religious and social institution should not be used
as a platform from which to discriminate against same-sex couples in areas
where unmarried heterosexual couples, legally recognised by the State as having
a relationship equivalent to that of a marriage, are able to access financial
entitlements, and superannuation benefits.
Associate Professor Stewart argued that the Bill does not change the legal recognition of
either married or opposite-sex de facto relationships:
Marriage is still a
highly privileged legal category, and obviously a highly privileged social category
as well...From a legal perspective, the category is still really quite separate
from any couple relationship type category that is recognised in this
Dr Challis rejected claims that the Bill undermines the centrality and status of marriage, telling
the committee, 'We feel this really has been exaggerated and that there is not
any evidence for this.'
and Lesbian Equality (WA) Inc agreed that such claims are 'unfounded',
describing them as 'nonsense' and identifying an ulterior motive:
The true reason
behind such religious groups pushing the idea of 'marriage sanctity' and
'devaluing marriage' is to deliberately try to exclude same-sex couples from
equal treatment for their relationships and to perpetuate the discrimination
faced by same-sex couples.
Alternatives to 'couple
In addition to
critiquing the new terminology, some submissions and evidence provided the
committee with suggestions as to how the Bill might be improved.
Professor Parkinson described the definition of 'couple
relationship' as a 'minefield', implying that the new definition was completely
It is perfectly
appropriate and sensible to redraft this bill in terms of a ‘marital
relationship’, which is marriage, and a ‘de facto relationship’, which is a
same-sex or heterosexual relationship, with people living together in an
intimate relationship. Those terms are widely understood; they are understood
by the courts and they are understood by everybody.
The Australian Christian Lobby agreed that the generic category of
'couple relationship' should be abandoned and 'replaced with references to "married
or de facto relationship" and the associated terminology of "spouse
or partner" throughout the bill.'
The NSW Gay and
Lesbian Rights Group did not have a preference for either 'marital' or 'couple'
terminology, 'as long as same-sex couples are grouped with de facto
The committee notes
that these three distinct groups of witnesses supported the equal treatment of
opposite-sex and same-sex de facto couples within the Bill. The committee notes also that there was support for 'de
facto relationship' terminology rather than 'couple relationship' terminology.
Attorney-General's Department informed the committee that it had considered using
the 'de facto relationship' approach within the Bill,
but ultimately rejected it on the basis that creating two distinct groups,
marital and de facto, would:
...leave it open for a
court to conclude that different tests were intended and could create the
potential for marital status discrimination to be introduced.
In response to the
question of why that risk could not be managed within the Bill, a representative from the Attorney-General's Department
It is really not the
minimalist approach that we adopted. I suspect also that the other concern was
that we also needed to deal with the issue of what happens if someone starts
off in a de facto relationship and subsequently gets married...We would have to
make sure we could find a way of managing those sorts of things. I am not
saying it is insurmountable but it would be a lot more complicated than the
approach that the bill takes at the moment.
Australian Christian Lobby did not agree that 'marital or de facto
relationship' would be misinterpreted as suggested by the Attorney-General's
Department, pointing out that such language is widely used throughout
Australian law without any difficulties.
Where an entitlement
arises for people in a marital or de facto relationship, then falling within
either definition will suffice, just as is the case where an entitlement arises
for ‘men or women’ or ‘citizens or permanent residents’, or ‘people in same-sex
or opposite sex relationships’. The language is plain and simple, and very
unlikely to be misunderstood.
The Association of
Superannuation Funds of Australia concurred, noting also:
Funds are very
experienced in applying relevant criteria for establishing whether a de facto
marriage was in place for a man and a woman. The same criteria should be able
to be used when the parties to a couple are of the same gender.
Expanded definition of 'child'
As indicated in
chapter 2, the expanded definition of 'child' ensures that the children of
same-sex couples are contemplated as eligible beneficiaries of a scheme member
or former scheme member.
Attorney-General's Department told the committee that a clear link needs to be
established between a child and the same-sex partner of the child's mother or
father. The Department submitted that this link is achieved by the requirement
for at least one partner to be the biological parent or birth mother of the
child, and the 'product of the relationship' requirement.
requirements typically merge in a provision, which will read:
A child cannot be the
product of a relationship between two persons (whether the persons are the same
sex or different sexes) for the purposes of this Act unless the child is the
biological child of at least one of the persons, or is born to a woman in the
The provision will serve
a dual purpose: firstly, to clarify that the common-law definition of 'child'
does not apply to the affected Acts; and second, to clarify that the children
of previous relationships are not included as the children of the same-sex relationship.
The phrase requires
that the child be the product of a particular relationship in the sense of
being the result of a joint undertaking by both parties to bring a child into
their relationship. Where both parties agree to the procedure that brings the
child into their relationship and to the raising of the child, the child will
be the product of their relationship.
Attorney-General's Department submitted that the phrase 'product of the
relationship' is flexible, allowing each case to be considered on its own merits.
It was also submitted that the new definition of 'child' is inclusive and
non-discriminatory, covering children of both same-sex and opposite-sex
However, responses to
the proposed new definition varied, with most submissions and evidence
applauding the intent of the Bill, but some criticising the phrase
'product of the relationship' for its lack of clarity and its questionable
application to children born as the result of a surrogacy arrangement. These
two issues are discussed in detail below.
Lack of clarity
Two independent legal
experts commenting on the phrase 'product of the relationship' both agreed that
the phrase is not sufficiently explained in either the Bill or the Explanatory Memorandum.
Associate Professor Stewart submitted that the lack of explanation made it difficult to
determine the requirements of the new definition.
Dictionary meaning of “product”, so far as it appears relevant, is “a result of
an action or process” (Oxford English Dictionary, accessed 1 August 2008). A
sensible interpretation would interpret the phrase to require an agreement, or
joint action or process by the members of the couple in the relationship, which
leads to the joint decision and action of bringing a child into the world and
raising him or her. That is, it seems to be intended that consent or a joint
intention to raise the child is required for the child to be a product of the
Professor Parkinson shared Associate Professor Stewart's concerns, warning the committee that
the lack of clarity could have adverse implications for same-sex couples and
The definitions used
in the legislation do not provide any clarity about which children are meant to
be included within the scope of the legislation and which are not. This lack of
clarity is likely to lead to expensive litigation, perhaps involving resort to
the appeal courts to make rulings on the meaning of the legislation. The
Parliament should seek to avoid that by making its intent clear.
In addition, Professor Parkinson queried whether the phrase 'product of
the relationship' was even necessary. He illustrated his argument drawing on
the Judges' Pension Act 1968 by way of example:
(i) The definition
of children of a couple relationship is redundant: The definition of child of a
marital relationship in the current version of the Judges’ Pension Act appears
to be entirely redundant. The term appears nowhere else in the Act. The concept
of a child of a marital relationship has some utility in s.4AB, but the term is
not actually used therein, and ‘child’ for these purposes is redefined there.
So the definition in s.4 should really be repealed, not amended.
(ii) The term is not
needed in s.4AB: The only reason that ‘child’ needs to be defined for the
purposes of s.4AB is to provide one way of establishing whether the couple are
in a committed relationship. It is really not necessary here, as there are
plenty of other forms of evidence to which the section refers, that can
establish the existence of a couple relationship.
(iii) It is not
needed for the definition of an eligible child. The importance of establishing
a parent-child relationship is really for the purposes of s.4AA. This defines
an ‘eligible child’ who may benefit from a judge’s pension entitlements.
However, an eligible child is either a child of the judge or a child who
qualifies because the Attorney-General is of the opinion that:
• at the time of the
death of the deceased Judge, the child was wholly or substantially dependent on
the deceased Judge; or
• but for the death
of the deceased Judge, the child would have been wholly or substantially
dependent on the deceased Judge.
Professor Parkinson supported an approach based on 'nurture
and dependence' rather than production.
Attorney-General's Department cautioned that such an approach might lead to
discrimination between children of a same-sex relationship and biological
One risk with that
is what happens if a child is not financially dependent. In 99 per cent of
circumstances it is very likely that the child would be dependent on the parent
but in some situations, maybe because of separated parents or because a child
has got their own job if they are 16 or 17- years-old and they might not be as
dependent on that parent as they otherwise would be. I think that is an issue
to bear in mind, particularly in terms of superannuation contribution schemes
where some children might receive a benefit because of a biological link that
they have with a parent and other children would have to rely on dependency.
There is a slightly different treatment there, and where there is different
treatment there is a risk of discrimination.
Attorney-General's Department warned also that an approach based on 'nurture' would
enable children not intended to fall within the scope of the Bill to indirectly become eligible for death benefits.
The purpose of the Bill was to put children of same-sex couples on the same footing
as those of opposite sex couples. However, this proposal may widen the scope of
children that can be eligible beyond the policy, and include opposite-sex
children that were not previously eligible. For example, an uncle may be
looking after a child while their parent is in hospital. This child could be
considered to be in the care and control of that relative and thus would obtain
In view of the
preceding criticisms, the committee questioned the Attorney-General's
Department on its approach to the new definition of 'child'. Officers told the
We are in an
environment where at a state and territory level there are inconsistent
parenting presumptions and there is inconsistent approach to surrogacy
legislation and the recognition of parents as well, so we had to find a way of
making sure that we were taking into account these children who would otherwise
not be included in the relevant definitions in the act. We also had to make
sure that we dealt with the ordinary definition of ‘child’ that the common law
would apply and that courts would interpret. The definition is taken to be
inclusive. We are trying to ensure that we do not take any other children
out...The term ‘product of a relationship’ is trying to capture the children who
at the moment are not included.
submitters and witnesses expressly queried whether children born through
surrogacy arrangements are actually included within the new definition of
Application to children born
through surrogacy arrangements
The lack of clarity
regarding the phrase 'product of the relationship' appeared to be a
complicating factor, as did inconsistent state and territory parenting
presumptions. Among the legal experts, there was a difference of opinion on the
precise problem with the definition.
Associate Professor Stewart felt that 'product of the relationship' would 'do the job'
if some explanation were provided as to the meaning of the phrase. However, she
acknowledged that it would be difficult to draft the phrase in such a way as to
fully recognise all types of parents.
For Professor Jenni Millbank, the definition did not specify the
requirement of consent to the conception of a child, or the point at which
consent must be given.
By way of example,
if a woman become [sic] pregnant through ART while not in a de facto relationship,
and then during the course of the pregnancy entered into a de facto
relationship with another person, it is not clear whether a child would or
would not be the “product of the relationship” under the Bill. Equally, if an embryo were created during the relationship
but then was used without consent it is not clear whether the child would or
would not be “product of the relationship”.
Professor Millbank suggested also that the definition is
problematical as it might be both under and over inclusive in focussing on the
birth mother or biological connection.
An example of the
term being over inclusive would be that it could generate four parents as both
the birth mother and her partner and the commissioning parents (as long as one
of them contributed gametes) would be parents under this definition even though
the birth parents were not the intended parents, did not live with the child
and did not have responsibility for the child. The definition may also be under
inclusive in that it would exclude commissioning parents who were the intended
parents when they were living with and caring for a child for whom they were
unable to contribute gametes (for example if both members of the couple were
while further clarification could address these two issues, Professor Millbank argued that the definition has an even
contains a fundamental contradiction: it reflects state and territory parentage
presumptions for ART families (without however articulating
them with the same precision) at the same time as it contradicts them by
granting ad hoc coverage of commissioning parents in surrogacy arrangements,
without actually according them parental status.
Professor Millbank suggested that it was not possible for
the Bill to define the parent-child relationship,
and that a 'real rethink' of the parent-child relationship in Commonwealth law is
We could have a very
quick and dirty audit of federal legislation and a simple conceptual basis of
the parent-child relationship that is put into either the Family Law Act or the
Acts Interpretation Act and then mirrored out to all the other acts. So every
other Act could say that ‘parent’ or ‘child’ means the definition in the Family
Law Act or the Acts Interpretation Act. I think it is time we did that.
Professor Parkinson commented also on the need to consider
the wider implications of endorsing commercial surrogacy in the Bill.
There are huge
debates about commercial surrogacy. What are the human rights implications if
the surrogate mother was living in a third world country and entered into the
surrogacy arrangement under physical or economic duress? There is no indication
that the Government has considered the moral and social issues involved in
commercial surrogacy before preparing this legislation, yet if it endorses it
implicitly by this legislation, it will be very hard for the Commonwealth to
argue against it in other contexts that may arise in future.
The committee notes
the evidence received concerning a possible lack of clarity in the definition
of 'child', particularly as regards children born through surrogacy
arrangements, and that the definition contradicts state and territory parenting
presumptions. The committee notes also the suggestion that the parent-child
relationship needs to be comprehensively reviewed and consistently defined in
Alternative approaches to 'child'
Some submissions and
evidence addressed the issue of how the definition of 'child' might yet be
improved within the Bill. As indicated in preceding paragraphs,
interpretive assistance only was suggested by more than one person. Other
suggestions focussed upon more complex definitions, and the alternate approach
of providing recognition for the children of same-sex relationships via the
parenting presumptions contained in the Family Law Act 1975.
The NSW Gay and
Lesbian Rights Lobby proposed a tiered definition of 'child', including
categories for children born through Artificial Reproduction Technology (ART),
parentage transferral schemes, surrogacy and 'in loco parentis':
Why we have outlined
'in loco parentis' as the last catch-all category is not to capture the cases
that we can define, such as children born through assisted reproductive
technology and through surrogacy, children that are adopted or children that
are conceived through intercourse. What we put is that 'in loco parentis'
should be used where there is no other category to recognise that parent-child
relationship and only in certain laws.
Mr Ghassan Kassisieh from the NSW Gay and Lesbian Rights
Lobby submitted that this proposal not only provides an immediate solution, but
is consistent with suggested amendments to the Family Law Act 1975. Mr
If you did amend
section 60H, for example, and you had a parentage presumption which included a
co-mother as well as a co-father in an assisted reproductive technology
context, you would have a child that is recognised under that presumption [as
well as the tiered definition].
Other legal experts who
commented on this aspect of the Bill did not favour attempting to amend the
definition of 'child'. Instead, they suggested amending section 60H of the Family
Law Act 1975.
Associate Professor Stewart suggested that this would be an appropriate and easy way to
recognise all ART families.
At the moment the
government appears not to have done that. It has not amended section 60H in
relation to children and parents and in terms of parental responsibility. It
has done it just to give the Family Court recognition of those families for
property division purposes between the couple...In addition to the ‘product of
the relationship’ reforms that are in the super bills, it would be appropriate
to extend that parenting presumption.
Professor Millbank agreed that the existing parenting
presumptions would suit both opposite-sex and same-sex couples.
families having children,] into existing categories of the parenting
presumptions that were devised around heterosexual couples works completely, because
the same factors are present. It is about intention, consent and giving care to
the child as a joint family unit afterwards.
The committee notes
that amending the parenting presumption in section 60H of the Family Law Act
1975 to express gender neutral language would allow for recognition of ART
children born to same-sex relationships, avoiding any need to define an ART
'child' for the purposes of the Bill.
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