Archive Article

Discrimination in Superannuation

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There have been enough inquiries, it’s time for change.

How you can help end discrimination in super.

Ring or write to your Federal MP. Explain the problem and how it affects you. Ask him or her to support change.

To find out contact details for your local MP, visit the Parliament of Australia website at aph.gov.au

You can also support the Lobby’s fight for equal rights by becoming a member or volunteer or making a donation.
You don’t have to be experienced to get involved. You just have to want to make a difference.

Superannuation is increasingly becoming a significant element of Australian workers’ salary packages. Gay men and lesbians are required by federal law to make the same superannuation contributions as their heterosexual colleagues, yet they don’t have the same access to benefits. Probably the most important result of discrimination is the failure to pay death benefits.
As a result of recent changes to state laws some gay men and lesbians in NSW public sector schemes now have equal super rights. The campaign for equality for all continues.

On retirement of the contributor:

On the death of the contributor:

These problems arise because the Superannuation Industry (Supervision) Act does not include same sex partners or non-biological children of same sex relationships as dependants of the contributor.

Death benefits may not be paid even if the surviving partner was completely financially dependent on the person who has died.
These problems were illustrated in the case of Greg Brown after the death of his partner of 10 years, Robert Corva. Greg unsuccessfully took action in the Administrative Appeals Tribunal when the Commonwealth Superannuation Scheme, to which Robert had contributed for 17 years, refused to pay Greg death benefits. Greg then took the matter to the Human Rights and Equal Opportunity Commission, which found that while he had been treated unequally, the discrimination was lawful.

This case prompted a Human Rights and Equal Opportunity Commission inquiry into Australian superannuation legislation which found that the current legislation breaches two international conventions to which Australia is a signatory – the International Covenant on Civil and Political Rights and the International Labour Organisation Discrimination (Employment and Occupation) Convention. Commissioner Sidoti recommended that legislation be amended to allow surviving same sex partners the same access to benefits as heterosexuals.

Same sex relationships are recognised under many state laws in NSW and elsewhere. Since the passage of the Superannuation Legislation Amendment (Same Sex Partners) Act 2000 this includes older NSW public sector super schemes. The reformed schemes are: the State Superannuation Scheme, the State Authorities Superannuation Scheme, the Police Superannuation Scheme and the Parliamentary Contributory Superannuation Scheme This is a good start but unfortunately the majority of lesbians and gay men will continue to be treated unequally as most super schemes come under the federal law which has not yet been changed. If in doubt check with your super fund.

All that is needed is a simple definitional change to bring the super law into line with many state laws.
In February 1998, Anthony Albanese, Labor MP moved a private member’s bill in Federal Parliament – the Superannuation (Entitlements of Same Sex Couples) Amendment Bill. If passed, the Bill would include same sex partners and children of same sex relationships in the definition of dependant and prohibit discrimination by super funds.
Taxation laws also need to be changed so that when same sex partners do receive benefits they are not taxed at a much higher rate than heterosexuals as currently. Government support is needed for these changes.

The Senate Select Committee on Superannuation and Financial Services inquired into Albanese’s Bill in 2000 and recommended that the Bill be passed.
The inquiry received an unprecedented 1200 submissions and almost all favoured reform - only 5 opposed equal rights for same sex couples.
Submissions in favour included major superannuation industry groups and experts. They continue to support reform. No expert or industry group opposed the reform. Despite this support the Government has not allowed the Bill to proceed.

When joining a super fund, contributors are usually asked to complete paperwork that includes nominating who they want to receive their death benefit. Lots of people are understandably reassured by this and think because they have nominated their partner, she or he is sure to receive the benefit. This is wrong. Nominations are generally not binding. Even where a contributor has nominated a partner or child as their beneficiary, super funds are required to apply the definition of dependant and the wishes of the deceased may not be followed.
In 1999 the Howard Government amended superannuation legislation to make it possible for superannuation funds to change their rules so as to accept binding death benefit nominations. The Government has suggested that these changes solve the problem for same sex couples. This is not the case. Superannuation funds are still required to see that benefits are paid to dependants and the definition of ‘dependant’ still excludes same sex partners. The cumbersome procedures involved and lack of benefit mean that few, if any, funds have changed their rules.