The pitfalls of change

Sydney Star Observer readers would be aware that the Same-Sex Relationships (Equal Treatment Commonwealth Laws- Superannuation) Bill 2008 (the Bill) was introduced into Parliament on 28 May 2008.

The Coalition’s decision in the Senate to refer the Bill to a Senate Committee and unduly delay its passage has dominated discussion which has unfortunately meant that the actual operation of the Bill has not received sufficient attention.

The Bill amends the Superannuation Industry (Supervision) Act 1993 (the Act) which currently requires same-sex couples to establish financial dependency, or interdependency, to receive a same-sex partner’s death benefit.

A same-sex partner is not currently recognised as a family member, and hence, not automatically paid a member’s death benefit. This means that a same-sex partner must go through the arduous process of supplying intimate details of his or her relationship in order to be entitled to their partner’s benefits.
By amending the definition of spouse in the Act to include any other person, although not legally married, but lives with the person in a genuine domestic arrangement, the Bill operates to grant recognition to same-sex couples.

The Bill goes a step further and also amends the definition of child in the Act so that a child is recognised as the child of both parents in a same-sex relationship. Currently, the Act only recognises a child as the child of the biological parent in a same-sex relationship. This differs from the treatment of a child in a de facto heterosexual relationship.

In addressing this problem, the Bill functions to recognise a child of a same-sex relationship as a family member, and therefore, ensures that the child can receive the death benefit of either parent. The Bill only forms a small part of the package promised by the Labor Rudd Government to end discrimination against gays and lesbians in all Commonwealth legislation. There still remain a number of laws in the arenas of health, employment and tax which discriminate against gays and lesbians.

I am indebted to an article written by Maged Girgis and Nathan Hodge which appeared in Lawyers Weekly (20 June 2008) for the analysis of the Bill contained in this column.