Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Hansard source

I move:

That the committee does not insist on its amendment to which the House of Representatives has disagreed and agrees to the amendments made by the House in place of that amendment.

The amendment which the House disagreed too, namely Senate amendment (1), was the amendment proposed by the opposition which would result in schedules 1, 2, 3 and 5 of the bill having retrospective effect from 1 July 2008. Senator Wong outlined the government’s concerns regarding this amendment when the bill was previously considered in this place. Specifically, the government is concerned that this amendment will give rise to significant legal complications which will require complex transitional and consequential amendments.

The government is also concerned that any retrospective operation of the bill would require provision to be made for the Commonwealth to provide just terms in respect of any acquisition of property brought about by the retrospective application of the amendments to ensure that the bill does not involve an impermissible acquisition of property for the purposes of section 51(xxxi) of the Constitution.

Further, this amendment would create inconsistencies between the Commonwealth Superannuation Scheme and the Public Sector Superannuation Scheme relating to the commencement of the reforms, as well as between the Military Superannuation and Benefits Scheme and the Defence Force Retirement and Death Benefit Scheme. The Public Sector Superannuation Scheme and the Military Superannuation and Benefits Scheme are governed by trust deeds, which in this circumstance cannot be amended retrospectively. This would mean that, as a consequence of the opposition’s amendments, benefits would not be extended to same-sex partners in the Public Sector Superannuation Scheme and the Military Superannuation and Benefits Scheme from 1 July 2008.

It was for these reasons that the House disagreed with this amendment and proposed a further amendment as an alternative. The government believes that the alternative amendment proposed by the House will address the concerns of both the opposition and the Australian Greens. It will ensure that any individual who would have been entitled to a payment, or payments, will be compensated fully for any payments lost as a result of the bill not commencing on 1 July 2008. The House amendment also addresses the government’s concerns because it does not require the bill to have a retrospective effect.

The House amendment 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. It will also amend the commencement of part 1 of schedule 2 to the bill, which inserts a definition of ‘de facto partner’ into the Acts Interpretation Act, to make it commence on royal assent. It will make other amendments to commencement dates for certain schedules to the bill, which the government 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 amendments. I commend the House amendment to the Senate.