Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to 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.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Can I just indicate that the opposition will accept the government’s amendment and will not press the amendment which I moved when the bill was last considered by the Senate. Particularly since we are being broadcast and there are no doubt a number of people listening to this broadcast, can I just say a few words about the history of these amendments.

The opposition indicated to the government that it was their strong view that the operation of this bill ought to be made retrospective to 1 July 2008. The government, while, I think it is fair to say, not dissenting from that proposition, nevertheless exhibited or expressed some concerns about the manner in which that retrospective operation could be achieved. I think I can say that we were privately favoured with access to some legal advice that the government had received. We considered that advice carefully and we were not persuaded that the constitutional difficulties under section 51(xxxi) of the Constitution, or the other difficulties that have been recited by the minister, were other than speculative or fanciful. Therefore, we insisted on an amendment which would have made the operation of the bill retrospective, and that amendment was carried.

The government proposed an amendment of a much weaker kind which would have given persons who might otherwise have been entitled to be claimants under the legislation, arising from the death of a partner after 1 July 2008, the right to apply to the minister and to request that the minister exercise a discretion in their favour. I do not suggest that there would be any reason to doubt that that discretion would be exercised in good faith. Nevertheless, it did not put people in that position on the sure footing of having a right, enforceable against the Commonwealth, in respect of the death of a partner from 1 July 2008. In other words, that amendment put such people in a much weaker position than the amendment which the Senate ultimately carried, which was proposed by the opposition.

The government has evidently reconsidered the position, and the amendment moved in the House of Representatives, and now moved in this chamber by Senator Sherry, strengthens the position of claimants in that position. Under subclause (4)(1), the amendment provides that, if certain eligibility criteria are met, the finance minister must make a determination, in accordance with subsection (4), to fully compensate the person. Subclause (4)(4) merely requires that the minister must set out in writing the amount and timing of the replacement payments or the method of determining the amount and timing of the replacement payments—the replacement payments being payments to the same quantum of and in lieu of what would have been entitlements under the act after it receives royal assent. So, effective retrospectivity has now been achieved, and that retrospectivity is based on an enforceable right, exercisable against the Commonwealth, rather than making a potential claimant a supplicant for ministerial favour in the exercise of a discretion. This amendment would not have been made had the opposition not insisted on its position in the Senate. I welcome the concession made by the government in that respect, and that is the reason why the opposition is now satisfied that we can support this amendment, as we do.

Finally, let me close on this: the reason why the issue of retrospectivity arises is that, when this legislation was introduced into the Senate in June this year, the opposition referred this bill and the related bill to the Senate Standing Committee on Legal and Constitutional Affairs. As you would be aware, there were extensive hearings during the winter recess by that committee in relation to this bill and three related bills, two of which have now passed. Many of the recommendations of that committee were adopted. They were adopted in the form of government amendments, and the government acknowledged that the process of review of this legislation by the committee was a beneficial process which improved the legislation.

At the time that the opposition referred this and the related bills to the Senate Legal and Constitutional Affairs Committee there was a deal of quite ignorant criticism of the opposition. The very ignorant accusation was made by some that the purpose of the opposition was to delay the bills. Plainly, since it has been at the insistence of the opposition that the bills have, for all practical purposes, retrospective operation from 1 July 2008, the baselessness of that criticism will now be evident.

One of the principal critics of the opposition at the time of its decision to refer the bills to the Senate Constitutional and Legal Affairs Committee—and I should say that I do not extend to him the description ‘ignorant’—was Mr John Challis, the Convener of the ComSuper Action Committee. Mr Challis in fact appeared before the Legal and Constitutional Affairs Committee hearings and gave some very helpful and extensive evidence to those hearings. Last Thursday, 20 November 2008, I received from Mr Challis an email. Let me read some of it onto the record:

Thank you for including the backdating amendment in the bill, which, as you will recall, I argued strongly for at the Senate inquiry mainly because of the then critical condition of my committee colleague—

And then he names a particular gentleman, whose name I will not read onto the record—

Fortunately, his health has improved and he is elated by the passage of the bill. Although, at the time, I was very critical of the opposition’s decision to refer the bill to a Senate inquiry, I have to agree with you that it did improve the bills and facilitated their passage through the Senate.

Warmest regards and thanks,

John Challis

So Mr Challis, who is the leader of the principal public sector advocacy group on behalf of people potentially affected by this legislation, having criticised the opposition’s decision to refer the bills to proper Senate committee scrutiny, was generous enough to send in that message acknowledging that the decision was the right one and thanking the opposition for initiating the legislative steps which resulted in the operation of the bill being made retrospective. I might say that the current Leader of the Opposition, Mr Malcolm Turnbull—then shadow Treasurer—made it very clear in his speech in the House of Representatives on the second reading of this bill that that was what the opposition was minded to do: to make the operation of the bills retrospective so that there would be no delay in the commencement of their operation. To those in the community and in the legal profession who essayed that very ignorant criticism of the opposition, Mr Challis’s generous acknowledgement is your answer. The opposition welcomes the amendment.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens likewise congratulate the government on this amendment. We do recognise that the amendment would not be there without the work of the opposition. I equally congratulate Senator Hanson-Young and my fellow Greens because we have also ensured that this worthwhile amendment came about.

Question agreed to.

Resolution reported; report adopted.