Andrew Murray (WA, Australian Democrats) Share this | Hansard source

We are dealing with the Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Bill 2008 and this is the second reading debate for that bill. The purpose of the bill is make amendments to a raft of legislation as a consequence of legislative changes introduced by the Superannuation Legislation Amendment (Trustee Board and Other Measures) Act 2006. These measures are largely technical, and updating changes are overdue. There are a number of schedules to the act. In brief, the changes consolidate the government’s arrangements for civilian public sector employees, including funds managed through the Commonwealth Superannuation Scheme and controlled by its board, funds managed through the Public Sector Superannuation Scheme and controlled by its board and funds managed through the Public Sector Superannuation Scheme accumulation plan and controlled by the Public Sector Superannuation Scheme board. I note that the Bills Digest has said that these changes are long overdue. They replicate in large part the changes announced in a previous bill of this name but which did not get through parliament before the election. The 2006 act abolished the CSS board and incorporated the trusteeship of the CSS into the PSS board, which also governs the PSSap. Additionally, the act increased the number of directors on the PSS board from two to seven. The new single board was renamed the Australian Reward Investment Alliance.

Schedule 1 of this bill contains the main amendments, with proposed legislative changes for 30 acts. It ensures that ARIA—the Australian Reward Investment Alliance—is the appropriate body to issue an invalidity certificate for members of various Commonwealth bodies when employees are to be retired on grounds of mental or physical incapacity. Schedule 2 contains technical amendments relating to legislative instruments that apply to five acts. Schedule 3 repeals subsections 4(1) and 4(2) in schedule 3 of the Superannuation Act 1990 concerning the original trust deed. Schedule 4 proposes amendments governing the CSS and the payment of the productivity benefit to Commonwealth public servants to conform with the requirements to the Superannuation (Guarantee) Administration Act 1992. These amendments will commence upon royal assent.

The ComSuper action committee has highlighted the persisting inequity in preventing Public Service superannuants on defined benefit superannuation schemes from accessing superannuation death benefits. I have circulated an amendment to this bill which deals with that issue and I will continue to pursue the matter that has been of some concern in every superannuation bill for some years.

With the concept of streamlining and harmonisation in mind, I wonder how ARIA, as a new single board structure, is going to manage the legal discrepancies and inconsistencies that currently exist between each fund. One such inconsistency is the varied treatment of interdependency and de facto partnership rights for each fund. Are board members able to put their PSSap hats on and say, ‘That is discrimination,’ and then put their CSS or PSS hats on and say, ‘This fund member is homosexual; he must not receive the same superannuation rights as his heterosexual counterpart’? The fact is that, under the PSSap provisions, there is no or limited discrimination, whereas under the PSS and CSS funds there is blatant discrimination.

Discrepancies such as these do exist between each fund. By way of example, consider the ridiculous state of affairs that exists for public sector employees who are members of the PSSap, which is the new fund. According to correspondence received from then Minister Minchin last year, all new employees who commenced employment on or after 1 July 2005 who were members of the scheme and in a same-sex partnership would be entitled to death benefits. But no retrospective application exists for the PSSap, so those rules do not apply to CSS and PSS members. To withhold retrospective and comprehensive application of interdependency and de facto relationship rights to all public sector employees is by definition discriminatory. What is more, the very extensive Same-sex: same entitlements report from the national inquiry into discrimination against people in same-sex relationships regarding financial and work related entitlements and benefits issued by the Human Rights and Equal Opportunity Commission last year outlines in great detail where that discrimination applies. In effect, the then minister was asserting that the only legitimate interdependent relationships that exist in law at present are those of new members who began employment on or after 1 July 2005. For other individuals in same-sex interdependency relationship, under these three schemes their partnership arrangements are still illegitimate with respect to death benefits.

There is no ethical, legal or financial reason for one group of public sector employees to be treated differently to another on the basis of differing partnership arrangements under superannuation law. There is no policy reason and there is certainly no ethical or moral grounds for it, so what remains is for the political will to change the situation.

So this is the stimulus for my amendment to this bill—to yet again seek to rectify a gross inequality that the previous government and this government committed themselves to address. For many years now the Democrats have sought in vain to amend superannuation legislation to harmonise the treatment of the variety of partnerships that exist in Australia. On this point, then Prime Minister Howard apparently agreed with us when he stated on radio:

… I am strongly in favour – as my Government has demonstrated – strongly in favour of removing any property and other discrimination that exists against people who have same-sex relationships.

Unfortunately, those turned out to be hollow words. I will remind you of the coalition Attorney-General’s correspondence to the coalition Prime Minister which was released. These words reinforced this position. The coalition Attorney-General said:

The Australian Government is committed to the elimination of discrimination and condemns discrimination in all its forms … The Government’s commitment to the elimination of discrimination includes discrimination on the basis of an interdependent relationship. Such a relationship is considered to exist where there is a close personal relationship between two people who live together, where one or both provides for the financial, domestic and personal support of the other, and would include a same-sex relationship—

because, quite properly, he recognises that there are many relationships apart from same-sex relationships where interdependency justifies the removal of discrimination.

The coalition Prime Minister agreed with us, therefore, in terms of our broad thrust as Democrats, and so did the coalition Attorney-General. The Labor Prime Minister agrees with us. The Labor Prime Minister issued a letter, which I have a copy of, as federal Labor leader and member for Griffith, in which he said ‘The Labor Party is committed to equality for gay men, lesbians and same-sex couples and, if elected, will remove provisions which discriminate on the basis of sexuality.’ That is Labor Party policy, stated again and again in different forums in different circumstances. That is Labor Party policy. So it is coalition policy and they did nothing material about it, and it is Labor Party policy and they are doing nothing about it.

If historically the coalition employed varied excuses such as technical difficulty and cost to revenue in an attempt to sidestep what was supposed to be a coalition government priority, if the coalition historically argued that the expense of extending interdependent and same-sex relationship death benefits to defined benefit superannuation was the overriding issue—if they really did that, because there is a conflict within their own ranks on this matter—we then have to look at the issue of cost. I actually accept that the majority of coalition members want to see this situation ended. I accept that the majority of coalition members want to see unjust discrimination against same-sex couples done away with. I think that is accurate, and I accept the same applies to the Labor Party.

So why is it complex, or what are the reasons for there still being a delay? Government actuarial assessments estimated—and this was information we got from Senate estimates last year—the annual budget cash cost of extending death benefits to interdependent relationships and same-sex couples in defined benefit schemes to be $10 million. That is all—$10 million annually. So as a matter of removing unjustified discrimination it is obviously an affordable measure. The projected forward costing has been assessed at $2 billion. This represents a two per cent actuarially estimated increase in the total public sector unfunded superannuation liability stretching forward for decades. The costing assumes extending death benefits to interdependency relationships—those are not same-sex relationships—would cost $1 billion, with the residual $1 billion applying to same-sex couples. But the annual budget cash cost would be about $10 million, so extending superannuation death benefits to Commonwealth defined benefit superannuation schemes is affordable.

I assure the minister that we will continue to press this issue with this government, as we did with the previous government. The question to the minister is: is the Labor government going to adopt a go-slow on this matter, or is it going to give this Senate, this parliament and the people of Australia a deadline by which it will introduce the changes that it has forecast? Bear in mind the coalition have stated publicly and continually that they support ending the discrimination, so there is no argument on the policy. What is in question here is when and how. I think it is a reasonable proposition for this Senate to ask the Labor government to come clean. You will present your proposals by when—the May budget, next sitting? But so far the question has been dodged and I think what the government is going to do needs to be on the table: what it can afford to do, what it believes it can do and the time line over which that will happen.

Given their previous commitment, what the coalition must not do, of course, is continue to look as if they are an accomplice to a go-slow. The coalition I think needs to stand up and say to the Labor government, both in the Senate and in the House: ‘Come clean. When are you going to fix this problem?’ You now have this HREOC report and the question is not what you are going to do about it, because you have said you are going to fix it, but when you are going to fix it. I will put to the minister again for the record the main question he must answer if he rejects the very well crafted amendment that I have circulated, which is: when will you act to rectify this deplorable and highly inconsistent treatment of superannuation for de facto and interdependent partnerships?

Of course, it is perfectly reasonable for some senators to smile when I say it is a very well crafted amendment, but I actually took highly respected professional advice from people who would normally give advice in these matters, and the amendment is well crafted and is, in my view, very suitable for the purposes for which it has been designed. This is not something that I and a novice have knocked together; this is something that I and some very serious people have constructed.