Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I indicate to the House that the government proposes that amendments (2), (3) and (4) be agreed to and that amendment (1) be disagreed to but that amendments be made in place thereof. I therefore suggest that it might suit the convenience of the House to first consider amendments (2), (3) and (4) and, when those amendments have been disposed of, to then consider amendment (1). I move:

That amendments Nos 2, 3 and 4 be agreed to.

Those amendments amend schedules 2, 4 and 5 of the bill respectively and were proposed by the government in the Senate. A number of these amendments implement recommendations of the Senate Standing Committee on Legal and Constitutional Affairs in relation to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. These amendments will make a number of changes to schedules 2, 4 and 5, including amending references in the bill to ‘product of a relationship’, the definition of a child, to instead refer to a child of a person within the meaning of the Family Law Act 1975. It will also use the phrase ‘husband or wife or partner’ instead of ‘partner’ as well as the phrase ‘marital or couple relationship’ instead of ‘couple relationship’. This will ensure that the term ‘marital relationship’ is preserved in acts where that term appears.

Question agreed to.

I move:

That amendment No. (1) be disagreed to.

Senate amendment (1) amends the bill so that schedules 1, 2, 3 and 5 of the bill have retrospective effect from 1 July 2008. As previously raised by the government during the debate in the Senate, this amendment would give rise to significant legal complications which would require complex transitional and consequential amendments. However, such consequential amendments have not been included in Senate amendment (1). Any retrospective operation of the bill would require provision to be made for the Commonwealth to provide just terms compensation in respect of any acquisition of property brought about by the retrospective application of the amendments to ensure that the bill does not involve any impermissible acquisition of property for the purposes of section 51(xxxi) of the Constitution.

In addition, Senate amendment (1) would create inconsistencies between commencement of the reforms of the Commonwealth Superannuation Scheme and the Public Sector Superannuation Scheme as well as between the Military Superannuation and Benefits Scheme and the Defence Force Retirement and Death Benefits Scheme. This is because the PSS and the MSBS are governed by trust deeds and trust deeds cannot be amended retrospectively. As a consequence, benefits would not be extended to same-sex partners in the PSS and the MSBS from 1 July 2008 as intended by the amendment. For these reasons, I propose that the House should disagree with Senate amendment (1), but to address the substance of the issues which Senate amendment (1) was intended to address the government has proposed alternative amendments to the bill which are set out in the schedule circulated to honourable members.

Question agreed to.

Message from the Governor-General recommending appropriation for the bill and proposed amendments announced.

I move:

That government amendments Nos 1 to 4 be made in place of Senate amendment No. 1 which was disagreed to:

(1)    Clause 2, page 2 (table item 1, column 1), omit “3”, substitute “4”.

(2)    Clause 2, page 2 (table item 3), omit the table item, substitute:

(3)    Clause 2, page 2 (table item 4), omit the table item, substitute:

(4)    Page 2 (after line 11), after clause 3, insert:

4 Entitlements from 1 July 2008

        (1)    If:

             (a)    a person would have been entitled to one or more payments (the lost payments) under an Act that is amended by Schedule 1, 2, 3 or 5 to this Act if the relevant Schedule had commenced on 1 July 2008; and

             (b)    because the Schedule did not commence until after 1 July 2008, the person is not entitled to the payment or payments; and

             (c)    the person makes an application to the Finance Minister for one or more payments (the replacement payments) to compensate the person for the lost payments;

the Finance Minister must make a determination, in accordance with subsection (4), to fully compensate the person.

        (2)    If:

             (a)    a person would have been entitled to one or more payments (the lost payments) under the Military Superannuation and Benefits Act 1991 if the first amendment of the Trust Deed under that Act that is made after the commencement of this section had commenced on 1 July 2008; and

             (b)    because that amendment did not commence until after 1 July 2008, the person is not entitled to the payment or payments; and

             (c)    the person makes an application to the Finance Minister for one or more payments (the replacement payments) to compensate the person for the lost payments;

the Finance Minister must make a determination, in accordance with subsection (4), to fully compensate the person.

        (3)    If:

             (a)    a person would have been entitled to one or more payments (the lost payments) under the Superannuation Act 1990 if the first amendment of the Trust Deed under that Act that is made after the commencement of this section had commenced on 1 July 2008; and

             (b)    because that amendment did not commence until after 1 July 2008, the person is not entitled to the payment or payments; and

             (c)    the person makes an application to the Finance Minister for one or more payments (the replacement payments) to compensate the person for the lost payments;

the Finance Minister must make a determination, in accordance with subsection (4), to fully compensate the person.

        (4)    A determination by the Finance Minister under this subsection must:

             (a)    be in writing; and

             (b)    set out:

                   (i)    the amount and timing of the replacement payments; or

                  (ii)    the method of determining the amount and timing of the replacement payments.

        (5)    An application must be in writing in the form approved by the Finance Minister.

        (6)    To avoid doubt, a determination of the Finance Minister that a person is entitled to one or more replacement payments does not affect the entitlements of any other person under an Act amended by Schedule 1, 2, 3 or 5 to this Act, the Military Superannuation and Benefits Act 1991 or the Superannuation Act 1990.

        (7)    Replacement payments are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

        (8)    A determination made under this section is not a legislative instrument.

        (9)    In this section:

Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997.

The government believes that these amendments to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 address the concerns of the opposition and the Australian Greens by ensuring that any individual who would have been entitled to payment or payments will be compensated fully for any payments lost as a result of the delayed commencement of the bill. They also address the government’s concerns regarding Senate amendment (1) because they do not require the bill to have retrospective effect. The government’s proposed amendments to the bill will provide a mechanism to allow replacement payments to be made to an individual who has lost a superannuation payment or payments because these reforms did not commence on 1 July 2008.

They will also amend the commencement of part 1 of schedule 2 of the bill, which inserts a definition of ‘de facto partner’ into the Acts Interpretation Act to commence on royal assent. Also, the amendment will make other amendments to commencement dates for certain schedules to the bill, which the government had previously intended to move in the Senate but which it did not move because they were overtaken by the Senate’s approval of the opposition’s amendment. I commend the amendments to the House. I thank all those involved, including the shadow minister, for the passage of these provisions.

Question agreed to.

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