Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I move government request (3) on sheet QH400:

That the House of Representatives be requested to make the following amendment:

(3)    Schedule 1, page 3 (line 2) to page 11 (line 21), omit the Schedule, substitute:

Schedule 1—Finance and Deregulation amendments

Parliamentary Contributory Superannuation Act 1948

1  Subsection 4(1) (definition of former spouse)

After “marital”, insert “or couple”.

2  Subsection 4(1)

Insert:

marital or couple relationship has the meaning given by section 4B.

3  Subsection 4(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

4  Subsection 4(1)

Insert:

spouse has a meaning affected by section 4C.

5  Subsection 4B(1)

After “marital”, insert “or couple”.

Note:   The heading to section 4B is replaced by the heading “Marital or couple relationship”.

6  Subsection 4B(1)

After “husband or wife”, insert “or partner”.

7  Subsection 4B(2)

After “husband or wife” (wherever occurring), insert “or partner”.

8  Subsection 4B(3)

After “marital”, insert “or couple”.

9  After paragraph 4B(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

10  At the end of paragraph 4B(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

11  Subsections 4C(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

12  Paragraph 19AA(2)(d)

Repeal the paragraph, substitute:

             (d)    was not or is not survived by a person with whom the deceased person had had a marital or couple relationship and who is:

                   (i)    the natural or adoptive parent of that child; or

                  (ii)    the parent of that child because the child is a child of the person within the meaning of the Family Law Act 1975;

13  Paragraph 19AA(2B)(a)

Repeal the paragraph, substitute:

             (a)    the child:

                   (i)    was born while the deceased person was having a marital or couple relationship with another person; or

                  (ii)    was adopted by the deceased person or the deceased person with that other person during the duration of that relationship; or

                 (iii)    was a child of the deceased person, and that other person, within the meaning of the Family Law Act 1975; and

14  Subsection 19AA(5) (definition of child)

Repeal the definition, substitute:

child, in relation to a person, means a child of the person, including:

             (a)    an adopted child or an ex-nuptial child of the person; and

             (b)    someone who is a child of the person within the meaning of the Family Law Act 1975.

15  Application of amendments of the Parliamentary Contributory Superannuation Act 1948

The amendments of the Parliamentary Contributory Superannuation Act 1948 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule if the deceased person:

             (a)    was entitled to a parliamentary allowance at the time of his or her death; or

             (b)    was entitled to a retiring allowance (whether or not the retiring allowance was immediately payable) at the time of his or her death.

Superannuation Act 1922

16  After subsection 48AB(4)

Insert:

     (4A)    If a pensioner or contributor died before the day on which Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced:

             (a)    the amendments of the Superannuation Act 1976 made by that Schedule do not apply in relation to any pension that, apart from this subsection, may be granted under this section in respect of the deceased pensioner or contributor; and

             (b)    the Superannuation Act 1976 as in force immediately before the commencement of Schedule 1 continues to apply in relation to any pension granted or that may be granted under this section in respect of the deceased pensioner or contributor.

17  At the end of section 48ABA

Add:

        (9)    For the purposes of applying the definitions of eligible child and spouse in subsection (1) in relation to a deceased pensioner who died before the day on which Schedule 1 to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 commenced:

             (a)    the amendments of the Superannuation Act 1976 made by that Schedule do not apply; and

             (b)    the Superannuation Act 1976 as in force immediately before the commencement of that Schedule continues to apply.

Superannuation Act 1976

18  Subsection 3(1) (definition of child)

Repeal the definition, substitute:

child, in relation to a person who has died, means:

             (a)    a child of the person, including:

                   (i)    an adopted child, an ex-nuptial child, a foster child, a stepchild or a ward, of the person; and

                  (ii)    someone who is a child of the person within the meaning of the Family Law Act 1975; or

             (b)    a child of a spouse of the person, including:

                   (i)    an adopted child, an ex-nuptial child, a foster child, a stepchild or a ward, of the spouse; and

                  (ii)    someone who is a child of the spouse within the meaning of the Family Law Act 1975.

19  Subsection 3(1) (definition of late short-term marital relationship)

Repeal the definition (including the note).

20  Subsection 3(1)

Insert:

late short-term marital or couple relationship, in relation to a deceased retirement pensioner, means a marital or couple relationship between the pensioner and his or her spouse that began:

             (a)    less than 3 years before the pensioner’s death; and

             (b)    after the pensioner became a retirement pensioner and had reached the age of 60 years.

21  Subsection 3(1)

Insert:

marital or couple relationship has the meaning given by section 8A.

22  Subsection 3(1)

Insert:

partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes).

23  Subsection 3(1)

Insert:

spouse has a meaning affected by section 8B.

24  Subsection 3(1)

Insert:

stepchild: without limiting who is a stepchild of a person for the purposes of this Act, someone who is a child of a partner of the person is the stepchild of the person, if he or she would be the person’s stepchild except that the person is not legally married to the partner.

25  Subsection 8A(1)

After “marital”, insert “or couple”.

Note:   The heading to section 8A is replaced by the heading “Marital or couple relationship”.

26  Subsection 8A(1)

After “husband or wife”, insert “or partner”.

27  Subsection 8A(2)

After “husband or wife” (wherever occurring), insert “or partner”.

28  Subsection 8A(3)

After “marital”, insert “or couple”.

29  After paragraph 8A(4)(b)

Insert:

           (ba)    the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section;

30  At the end of paragraph 8A(4)(c)

Add:

             or (iii)    a child of both of the persons within the meaning of the Family Law Act 1975;

31  Subsections 8B(2) and (3)

After “marital” (wherever occurring), insert “or couple”.

32  Subsections 94(2A), 95(1B) and 96(2A)

After “marital”, insert “or couple”.

33  Subsection 96AB(2) (paragraph (a) of the definition of relevant period)

After “marital”, insert “or couple”.

34  Paragraph 96BA(1)(a)

After “marital”, insert “or couple”.

35  Subsection 96BA(2) (paragraph (a) of the definition of relevant period)

After “marital”, insert “or couple”.

36  Subsection 108A(1)

After “marital”, insert “or couple”.

Note:   The heading to section 108A is altered by inserting “or couple” after “marital”.

37  Subsection 108A(5) (subparagraph (a)(i) of the definition of relevant period)

After “marital”, insert “or couple”.

38  Paragraph 109AB(2)(c)

After “marital”, insert “or couple”.

39  Paragraphs 109AB(3B)(b), (3C)(a) and (b), (5)(c), (5A)(b), (5B)(a) and (b)

After “marital”, insert “or couple”.

40  Paragraphs 110(4)(c) and (d) and (5B)(a)

After “marital”, insert “or couple”.

41  Subparagraph 110(5B)(b)(i)

After “marital”, insert “or couple”.

42  After subparagraph 110(5B)(b)(i)

Insert:

                 (ia)    was not a child of the spouse, and the pensioner, within the meaning of the Family Law Act 1975; or

43  Subparagraphs 110(5B)(b)(ii) and (iii)

After “marital”, insert “or couple”.

44  Paragraph 110(7)(c)

After “marital”, insert “or couple”.

45  Subparagraph 110(7A)(a)(ii)

After “marital”, insert “or couple”.

46  Subparagraph 110(7A)(b)(i)

After “marital”, insert “or couple”.

47  After subparagraph 110(7A)(b)(i)

Insert:

                 (ia)    was, within the meaning of the Family Law Act 1975, a child of the pensioner and the person with whom the pensioner had that marital or couple relationship; or

48  Subparagraphs 110(7A)(b)(ii) and (iii)

After “marital”, insert “or couple”.

49  Paragraph 110(7B)(a)

After “marital”, insert “or couple”.

50  Paragraph 110(14)(d)

Omit “an adopted child, an ex-nuptial child, a foster child, a step-child or a ward”, substitute “a child of a kind referred to in subparagraph (b)(i) or (ii) of the definition of child in subsection 3(1)”.

51  Paragraph 136(2B)(ma)

After “marital” (wherever occurring), insert “or couple”.

52  Application of amendments of the Superannuation Act 1976

The amendments of the Superannuation Act 1976 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule, if, at the time of his or her death, the deceased person was:

             (a)    an eligible employee (within the meaning of that Act); or

             (b)    a deferred benefit member (within the meaning of Division 4A of Part V of that Act); or

             (c)    a retirement pensioner (within the meaning of that Act).

Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (3) [item 24]

The effect of this amendment is to expand the range of persons in relation to whom reversionary benefits may be paid under the standing appropriation in:

• section 134 of the Superannuation Act 1922; and
• subsection 112(2) of the Superannuation Act 1976.

The amendment is covered by section 53 because it will increase a “proposed charge or burden on the people”.

Amendment (5) [item 2]

The effect of this amendment is to expand the range of persons in relation to whom reversionary benefits may be paid under the standing appropriation in:

• section 125 of the Defence Force Retirement and Death Benefits Act 1973; and
• section 15D of the Defence Forces Retirement Benefits Act 1948.

The amendment is covered by section 53 because it will increase a “proposed charge or burden on the people”.

Same-Sex Relationships (Equal Treatment in Commonwealth Laws––Superannuation) Bill 2008

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendments (3) and (5)

The Senate has long followed the practice that it should treat as requests amendments which would result in increased expenditure under a standing appropriation, although this interpretation is not consistent with other elements of the established interpretation of the third paragraph of section 53 of the Constitution. This has nothing to do with the introduction of bills under the first paragraph of section 53.

If it is correct that these amendments increase the number of individuals eligible for reversionary superannuation benefits payable from standing appropriations, it is in accordance with the precedents of the Senate that the amendments be moved as requests.

This amendment omits the previous schedule 1 to the bill and replaces it with a new schedule. It effects a number of amendments to the content of that schedule, and I can specifically indicate those now. I will not go through all the items, because they are quite numerous, but I can if senators wish me to. A number of items in the schedule now refer to ‘a marital or couple relationship’ rather than ‘a couple relationship’. Items (6), (7), (26) and (27) will adopt the term ‘husband or wife or partner’. Items (9) and (29) will refer to regulations made under the Acts Interpretation Act rather than those made under the Judges’ Pensions Act. Items (10), (12), (13), (14), (18), (30), (42) and (47) will refer to ‘a child’ within the meaning of the Family Law Act rather than the ‘product of the relationship’ definition of a child. Further, items (5), (14), (16), (26), (46) and (52) of schedule 1 to the bill as introduced are no longer required as a consequence of the new approach to the definition of ‘a child’ and do not have equivalents in the amended schedule.