HRC Report No. 7

Superannuation Entitlements of Same-Sex Couples

Report of Examination of Federal Legislation

HRC Report No. 7

Copyright © Human Rights and Equal Opportunity Commission. Copying is permissible provided acknowledgment is made to the Human Rights and Equal Opportunity Commission, Sydney, April 1999.

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Contents

• Introduction
• The legislation
• International Covenant on Civil and Political Rights
• ILO 111 - Discrimination (Employment and Occupation) Convention
• Recommendation
• Bibliography
• Appendix A - Superannuation Act 1976 (Cth) extracts
• Appendix B - Defence Force Retirement and Death Benefits Act 1973 (Cth) extracts
• Footnotes
  

  Homosexual orientation is a reality today which the law must recognise and adjust to, and it may well be thought appropriate that the fundamental principle of equality and the irrelevance of a person's sex and sexual identity demand that the court be alert to afford protection to them to ensure that those of homosexual orientation are no longer disadvantaged in terms of employment 1

1. Introduction

The Superannuation Act 1976 (Cth) and the Defence Force Retirement and Death Benefits Act 1973 (Cth) are Commonwealth enactments that establish schemes to provide superannuation benefits on retirement or invalidity to Commonwealth employees and members of the Australian Defence Force respectively. Benefits are also payable to a surviving spouse in the event of the employee's or member's death.

Each of these enactments has been superseded and the schemes they established closed. Nevertheless, members' and surviving spouses' entitlements continue to be governed by the rules of the scheme as amended from time to time.2

The Superannuation Act 1976 has been replaced by the Superannuation Act 1990 (Cth). The Defence Force Retirement and Death Benefits Act has been replaced by the Military Superannuation and Benefits Act 1991 (Cth).

The foci of this report are the earlier Acts because this examination arises from complaints about decisions made under those Acts. The recommendation, however, deals with all four enactments because all four contain almost identical provisions which have the effect of discriminating against surviving same-sex partners of superannuation scheme members or pensioners.

The issue

The definition of 'spouse' in these enactments has been held to be gender-specific, recognising only heterosexual relationships where a man and woman are legally married or in a de facto relationship.3 The use of the term 'spouse' in these enactments has the effect of excluding a surviving member of a same-sex couple from receiving the benefits provided. This report examines whether limiting benefits to 'spouses' so defined discriminates against persons living in a bona fide domestic same-sex relationship in a way that violates Australia's international human rights undertakings.

International law sources

The relevant international human rights instruments are the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO 111) and the International Covenant on Civil and Political Rights (ICCPR). These instruments are Schedules 1 and 2 respectively of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

ILO 111 guarantees the rights of employees to enjoy non-discriminatory terms and conditions of employment. The ICCPR guarantees a right to equal treatment before the law and non-discrimination in the enjoyment of civil and political rights.

The Commission's functions

The Commission undertakes this examination of the relevant sections of the two enactments in exercise of its powers under sections 11(1)(e) and 31(a) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Section 11(1)(e) provides

The functions of the Commission are:

(e) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination.

Section 31(a) provides

The following functions are hereby conferred on the Commission:

(a) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, have, or would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, and to report to the Minister the results of any such examination.

2. The legislation

Superannuation Act 1976

The Superannuation Act 1976 is one of a number of Commonwealth enactments regulating the provision of superannuation in the form of retirement, invalidity and death benefits.4

The Act established the Commonwealth Superannuation Scheme (CSS) to provide benefits to Commonwealth employees and to their spouses and dependent children should a member die in service or after retirement. The CSS was compulsory for most permanently employed Commonwealth employees. Members of the CSS contributed a minimum of 5% of their salary on a fortnightly basis with the option of contributing up to a further 5%. In 1990, following amendments to Commonwealth superannuation legislation, the CSS was closed.5

The Superannuation Act 1976 established the Commonwealth Superannuation Fund No. 2 and a Board of Trustees to administer the Fund. The Act also created the office of the Commissioner for Superannuation with overall responsibility for the administration of the Act and the Superannuation Act 1922 (Cth). Part IV of the Act provided for the manner and level of contributions made by an employee to the fund in the course of his or her employment. The remaining provisions deal with the administration of the Act, the management of pensions, review rights and transfers to other schemes.

Part V (sections 55 - 80A) of the Act sets out the types of benefits which may accrue to an employee. They include

• age retirement benefit
• early retirement benefit and
• invalidity benefit.

In most cases an employee becomes entitled to an age retirement benefit upon retirement, either as a pension or a lump sum. The Act contemplates retirement normally occurring when the employee reaches between 60 and 65 years of age.

Each benefit type is subject to specific and detailed statutory provisions governing entitlement, whether the benefit is to be paid as a pension or lump sum, the rate of the pension or amount of the lump sum and various other pre-conditions before an employee may receive the benefit.

Part VI (sections 81 - 110AB) is the relevant part of the Act for the purposes of this examination. It deals with various types of reversionary benefits payable to the surviving spouse(s) and children of a CSS member. It provides

• spouse's benefit on death of employee before attaining maximum retiring age
• spouse's benefit on death of employee after attaining maximum retiring age
• spouse's benefit on death of pensioner
• spouse's benefit payable in respect of partially dependent children ('extra spouse pension') and
• orphan benefit.

Sections 81, 89 and 93 are the relevant provisions for the purpose of this examination and are set out in full in Appendix A. They simply provide that, where a CSS member dies before retirement or while receiving a pension after retirement, the surviving spouse(s) is entitled to a benefit. The calculation, amount and arrangements for the benefits are dealt with by the remaining provisions in Part VI of the Act.

'Spouse' is not specifically defined in the Act. However, sections 8A and 8B prescribe who is a 'spouse' for the purposes of eligibility for a spouse benefit.

Section 8B(2) provides that a person is a surviving spouse of a member who was receiving a pension when

(1) there was a marital relationship with the deceased person at the time of his/her death and

(2) if the deceased person was receiving a pension at the time of his/her death that

1. the marital relationship began before the now deceased person became a pensioner
2. where the marital relationship began after the now deceased person became a pensioner but before that person reached 60 or
3. where neither of the above apply, the marital relationship had continued for at least five years up to the time of death.

If a marital relationship did not exist at the time of the member's death but the parties were legally married, then section 8B(3) states that the person is taken to be a spouse if, in the Commissioner's opinion, the person was wholly and substantially dependent upon the deceased person at the time of the death.

The operation of section 8B relies on section 8A where 'marital relationship' is defined. Under the Act, a marital relationship does not require the parties to be legally married. For the purposes of the Act a person has a 'marital relationship' with another person if he or she ordinarily lived with the other person as husband or wife on a permanent and bona fide domestic basis. The criteria, therefore, are that the two people

• have ordinarily lived together for at least a 3 year continuous period
• there is a permanent and bona fide domestic relationship and
• they have lived as husband and wife.

These matters may be evidenced by

• a person being wholly or substantially dependent on the other person
• a legal marriage
• children born to or adopted to the relationship or
• joint ownership of a home which was the usual place of residence.6

These provisions were introduced in 1992 when the Act was amended by Commonwealth Superannuation Scheme Amendment Act 1992 (Cth) with effect from 17 December 1992. The previous definition of 'spouse' was repealed and sections 8A and 8B were inserted.7 The amendments sought to cure the discriminatory operation of Commonwealth enactments in the field of superannuation by bringing them into conformity with the Sex Discrimination Act 1984 (Cth) and the amendments to that enactment to remove exemptions for funds which operated to discriminate on the grounds of sex and marital status.8

Construing the new section 8A in 1995, the Administrative Appeals Tribunal concluded, 'The fact that the persons must be of the opposite sex is inherent in the use of the words "husband" and "wife"'.9

The Minister noted in his Second Reading Speech that the "key criterion for eligibility of a surviving spouse ... will be the existence of a permanent and bona fide relationship".10 There was no discussion about whether the amendments were intended to include or exclude persons in same-sex relationships, where the parties satisfied all the criteria other than living as husband and wife.11

The Public Sector Superannuation Scheme (PSS) established by the Superannuation Act 1990 (Cth) is also limited to opposite-sex surviving partners of members and pensioners.

Defence Force Retirement and Death Benefits Act 1973

The relevant parts of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (DFRDB Act) came into operation on 1 October 1972 and established the Defence Force Retirement and Death Benefits Scheme. The scheme operated from 1972 and was closed in 1991. Membership of the scheme was available to those who were full - time members of the Australia Defence Force on and after 1 October 1973 and to those who had been contributors under the Defence Force Retirement Benefits Act 1948 (Cth) until 30 September 1972.

The DFRDB Act established the Defence Force Retirement and Death Benefits Authority to administer the Scheme subject to the direction of the Minister. The Commissioner for Superannuation is the Chairman of the Authority.

Like the Superannuation Act 1976 the DFRDB Act provides for the administration of the scheme, entitlements to benefits, preservation of benefits and rights of review.

Members contributed fortnightly and the contribution rate was 5.5% of highest incremental salary for rank and allowances.

The DFRDB Act provides retirement and invalidity benefits for members and benefits to spouses of contributing or retired members. On the member's death the DFRDB Act provides for a spouse or dependent child to receive a pension. The pension is assessed as a proportion of the member's earnings.

The eligibility for a spouse benefit is dealt with in section 38 of the DFRDB Act which simply provides that, where a member of the scheme dies before retirement and is survived by a spouse, the spouse is entitled to a pension at a rate equal to five-eighths of the rate at which invalidity pay would have been payable to the deceased member.

'Spouse' is defined in sections 6A and 6B of the DFRDB Act which are identical to sections 8A and 8B of the Superannuation Act.12 Like the Superannuation Act these provisions were introduced in 1992 by the Commonwealth Superannuation Scheme Amendment Act 1992 (Cth). In addition to introducing sections 6A and 6B the amending legislation removed terms and phrases such as 'his' for 'deceased member' and 'widow' for 'spouse'.

The Military Superannuation and Benefits Scheme (MSBS) established by the Military Superannuation and Benefits Act 1991 (Cth) is also limited to opposite-sex surviving partners of members and pensioners. Indeed the MSBS Act explicitly provides that 'a person is not, for the purposes of these Rules, a spouse in relation to another person if he or she is of the same sex as that other person'.13

3. International Covenant on Civil and Political Rights

The Human Rights and Equal Opportunity Commission is empowered to examine Commonwealth enactments to determine whether they are inconsistent with or contrary to any human right (Human Rights and Equal Opportunity Commission Act 1986 (Cth) section 11(1)(e)).

For the purposes of this examination, the relevant right is to equality before the law as set out in ICCPR article 26.

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The principle of non-discrimination in the enjoyment of this and other human rights is reinforced by ICCPR article 2.1.

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The ICCPR does not define discrimination. The United Nations Human Rights Committee (the Committee), which monitors compliance with the ICCPR, has indicated that 'discrimination' for the purposes of article 26 should be understood to mean any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.14

Article 26 governs all fields of public administration. The Committee has specifically addressed the impact of article 26 on a State party's legislation.

Article 26 is therefore concerned with the obligations imposed on States parties concerning their legislation and the application thereof. Thus, when a State party adopts legislation, it must comply with the requirement of article 26 that its content should not be discriminatory.15

A distinction or preference made on the ground of 'sex' is expressly prohibited in ICCPR articles 2 and 26. 'Sexual preference', 'sexual orientation' and 'homosexuality' are not explicitly mentioned.16 Nevertheless, it is now clear that articles 2 and 26 apply equally to discrimination on the basis of sexual preference, sexual orientation or homosexuality as to other forms of discrimination. There are two bases for this.

The first is that 'sex' includes sexual preference. In its consideration of a complaint against Australia for breaches of a number of ICCPR rights, the Committee briefly addressed the question whether sexual preference discrimination is dealt with as an example of 'sex' discrimination or encompassed within the meaning of 'other status'.

[Australia] has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. 17

The Committee held that discrimination based on sexual preference is prohibited by the ICCPR.18

The second is that sexual preference, sexual orientation and homosexuality are included within the ambit of 'other status' or within the general prohibition of discrimination. The Commission considers that sexual preference or sexual orientation is a status for the purposes of ICCPR articles 2 and 26.

The right to equality and non-discrimination in article 26 is not an absolute right. In its General Comment, the Human Rights Committee observed that not every differentiation of treatment will constitute discrimination. If the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR, the distinction will be justified.19

Do sections 8A and 8B of the Superannuation Act and sections 6A and 6B of the DFRDB Act use criteria for differentiation which are reasonable and objective and is their aim to achieve a purpose which is legitimate under the ICCPR?

As noted above, when sections 8A and 8B of the Superannuation Act and sections 6A and 6B of the DFRDB Act were introduced, they were intended to remove discrimination between legally married and de facto relationships. The Minister emphasised in the Second Reading Speech that the key criterion 'was the existence of a permanent and bona fide relationship'.20 The sex of those in the relationship was not specified as a key criterion. At around the same time, the Commonwealth, as the respondent in the Toonen case, informed the Human Rights Committee that 'there is now a general Australian acceptance that no individual should be disadvantaged on the basis of his or her sexual orientation'.21 Commonwealth, State and Territory anti-discrimination and employment relations legislation reflects this by prohibiting discrimination on the grounds of sexual preference.

These important policy statements refute any argument that the superannuation enactments serve a reasonable and legitimate purpose in excluding the surviving spouse of a same-sex couple who, but for his or her sexual preference, meets all the criteria of a 'marital relationship'. These are not enactments which are specifically aimed at supporting and protecting the institution of marriage but enactments to provide for the surviving member of a bona fide domestic relationship. The enactments were amended to remove discrimination and in doing so recognised the nature of many contemporary domestic arrangements. They also contemplate circumstances where there may be more than one surviving spouse.

The inclusion of same-sex partners could increase costs and burdens on the Commonwealth to meet entitlements. However, both schemes are closed and the members and their beneficiaries would be an identifiable class of persons. Further, when sections 8A and 8B were introduced, the Minister noted that the costs to funds arising from their inclusion of de facto partners could not be significant. The proportion of members in same-sex relationships would be relatively low and accordingly unlikely to impose a significant cost burden.

4. ILO 111 - Discrimination (Employment and Occupation) Convention

The Human Rights and Equal Opportunity Commission is also empowered to examine Commonwealth enactments to determine whether they have the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation (Human Rights and Equal Opportunity Commission Act 1986 (Cth) section 31(a)).

'Equality of opportunity and treatment in employment and occupation' is not defined in the Act. However, this provision, together with the other provisions of Part III of the Act, operate clearly by reference to 'discrimination' which is defined in section 3 as follows

• (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
• (b) any other distinction, exclusion or preference that:
  
  1. has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
  2. has been declared by the regulations to constitute discrimination for the purposes of this Act

This definition in turn mirrors article 1 of ILO 111.

The grounds of discrimination included within the definition as originally enacted included 'sex' but did not include 'marital status' or 'sexual preference'. Additional grounds were introduced in 1989 when the Human Rights and Equal Opportunity Regulations were proclaimed. Regulation 4 declared twelve additional grounds of discrimination for the purposes of the Act, including 'sexual preference'.

Unlike the ICCPR, ILO 111 only deals with equality of treatment in employment. Examining whether these enactments are inconsistent with ILO 111 focuses on their operation in an employment setting. The inquiry is a four step process.

1. Does the enactment concern employment and occupation? In other words, is superannuation a term or condition of employment as defined in ILO 111?
2. Do specific provisions of the enactment make a distinction on the ground of sexual preference?
3. Does the distinction nullify or impair equality of opportunity or treatment?
4. Can the discrimination be justified?

Superannuation as a term or condition of employment

ILO 111 defines 'employment' and 'occupation' to include 'access to vocational training, access to employment and to particular occupations, and terms and conditions of employment' (article 1.3).

Retirement, invalidity and death benefits, which can collectively be described as superannuation benefits, are benefits that arise through employment. The Superannuation Act and the DFRDB Act establish compulsory superannuation schemes where a member's contribution to the scheme is automatically and regularly deducted from his or her salary.

While the requirement to contribute to a statutory superannuation scheme is a condition of employment, it does not immediately accrue to the employee. The courts have considered the nature of superannuation benefits and their relationship with the employee's rights. The right to draw upon the funds is a right which accrues on the occurrence of certain events. In Re Coram: Ex parte Official Trustee in Bankruptcy v Inglis, the court said

Historically, a superannuation fund was a form of trust that an employer established for the benefit of his employees. A common form of benefit was a lump sum payment that was payable to the employee (or his dependants) upon the event of his retirement or earlier death; another well known benefit was a pension plan. Conceptually however, the employee was only intended to benefit upon his retirement; thus, he would not necessarily receive any part of the amount allocated to the credit of his account if there was an early resignation or a dismissal. The emphasis on the benefit maturing upon retirement also emphasised that until retirement the member's rights to or interest in any benefit were inchoate and would not crystallise until retirement (or earlier death) ...

Until the happening of a prescribed event that will crystallise his right into an actual entitlement, a member of a superannuation fund is neither the legal nor the beneficial owner of the amount that stands to the credit of his account from time to time.22

Notwithstanding the future nature of the right to superannuation benefits and that in some cases the employee will not be the beneficiary if he or she dies before retirement, the entitlement to these benefits is integrally linked to the employment relationship. The requirement to contribute to the statutory scheme is compulsory and a condition of employment.

Do the enactments make a distinction on the grounds of sexual preference?

All States Parties to ILO 111 undertake to eliminate 'any distinction, exclusion or preference made on the basis of [the listed grounds to which Australia has added 'sexual preference'] which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation' (articles 1.1(a) and 3(c)).

In the event of the death of a member both the Superannuation Act and the DFRDB Act specify that the beneficiaries are to be the surviving spouse and dependent children. Section 8A of the Superannuation Act and section 6A of the DFRDB Act define 'spouse' as a person living with the member as her 'husband' or his 'wife' as the case may be.

Sections 8A and 8B of the Superannuation Act were considered by the Administrative Appeals Tribunal (AAT) in Brown and the Commissioner for Superannuation.23 The applicant, Gregory Brown, sought review of the Superannuation Commissioner's decision refusing him entitlement to a spouse benefit under section 81(1) of the Act. The Commissioner had decided that Mr Brown did not have a marital relationship with Mr Robert Corva, with whom Mr Brown had lived from December 1982 until Mr Corva's death in 1993. Mr Corva was employed by the Commonwealth and a member of the CSS.

Mr Brown argued that the phrase 'lived ... as that other person's husband or wife' in section 8A(1) extended to a marriage-like relationship between persons of the same sex. He made submissions asking the AAT to consider the history of the words 'husband' and 'wife' and the nature of the relationship rather than the gender of the participants. While Mr Brown referred to principles of non-discrimination, he did not specifically argue that the sections discriminate on the grounds of sexual preference. Rather he sought to persuade the AAT that the sections could be interpreted to include same-sex relationships.

The AAT rejected Mr Brown's submissions and dismissed the application. The AAT held that the words 'husband' and 'wife' should be given their ordinary meaning and then concluded

[T]he clear import of section 8A is to restrict access to spouse benefits to husbands and wives who have lived together on a bona fide basis whether or not they are legally married. It would be stretching the language of the section beyond any permissible bounds to find otherwise ...24

The AAT acknowledged that this interpretation of the section lead to a discriminatory result.

There is no doubt that the applicant and Mr Corva had a close marriage-like relationship and that they conformed to the requirements of sections 8A in all respects except for their gender. Yet the 1992 amendments, which were designed to remove discrimination on the ground of marital status, provide no redress in relation to the form of discrimination which is illustrated by this case.25

Challenges to other State and Commonwealth administrative and legislative provisions have followed the reasoning in Brown.26 Indeed, in two cases, Muller and Kelland, the Human Rights and Equal Opportunity Commission was prepared to interpret similar provisions in other legislation as including same-sex partners. However, the Commission was over-ruled by the Federal Court.

The terms 'husband' and 'wife' are interpreted in the specific context of marriage, legal or de facto. The legal status of a marriage at common law remains unchanged since Lord Penzance's 1866 observations.

[Marriage] according to law, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.27

In 1970 Justice Ormrod explained the requirement that the participants to a 'marriage' be a man and a woman.

[Sex is] an essential determinant of the relationship called marriage as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristic which distinguishes it from all other relationships can only be met by two persons of the opposite sex.28

Sections 46(2) and 69(1) of the Marriage Act 1961 (Cth) reflect the common law.29

The terms 'husband' and 'wife' and accordingly 'spouse' have been held to be gender specific terms and where they are used in the enactments are to be given their ordinary meaning.30 Using this interpretation, only men can be 'husbands' and only women can be 'wives'. Where the Superannuation Act and the DFRDB Act refer to a husband and wife living in a bona fide domestic relationship, only opposite-sex couples can satisfy the definition.

Legislative provisions which provide benefits to 'spouses' with the effect of excluding same-sex partners have been challenged in courts in New Zealand, Canada, the United States and the United Kingdom. The approach of the courts and tribunals at both the domestic and international level is not consistent.31 Some tribunals construe 'spouse' strictly to include heterosexual relationships only32 while others have read down the requirement that a spouse is a partner of the opposite sex.33

In Australia the interpretation of the statutory terminology to describe the requisite bona fide domestic relationship draws a clear distinction between opposite-sex couples and same-sex couples with the effect of excluding the surviving member of a same-sex relationship from enjoying superannuation benefits.

In other cases, benefits might be available to a spouse and other family members who are dependent upon the person. In these instances, the courts and tribunals have construed the notion of 'family' to include same-sex relationships.34 What has emerged in these recent decisions is a move by the courts to recognise a wider notion of 'family' to include a range of relationships.

Further, Australian courts have recognised that same-sex couples can satisfy other aspects of the definition of 'spouse'. They can have permanent bona fide domestic relationships.35 The cases set out criteria of the bona fides of a domestic relationship including whether the couple share a common household and there is permanence, real emotional support, mutual commitment, financial support and an indication to the world at large that a relationship exists.

Do the enactments have the effect of nullifying equal opportunity in employment?

The definition of marital relationship in each of the two enactments under examination draws a distinction between same-sex and opposite-sex couples. The distinction has the effect of disadvantaging same-sex surviving partners as compared with opposite-sex surviving partners by denying benefits to the former solely by reference to sexual preference.36

This discrimination offends standards of human rights as stated by Lord Justice Waite in a UK case in another context.

To adopt an interpretation of the statute that allowed all sexual parties, same or opposite sex, to enjoy the privilege of succession to tenancies ... would be consistent not only with social justice but also with the respect accorded by modern society to those of the same sex who undertake a permanent commitment to a shared life.37

Can the discrimination be justified?

Not all distinctions or preferences will breach ILO 111. ILO 111 does not contain a general exception similar to that in the ICCPR. However, it does provide that discrimination is permissible where a distinction is made based on the inherent requirements of the job (article 1.2).

Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

There is no inherent requirement in being an employee of the Commonwealth or a member of the Australian Defence Force that could be said to require a distinction to be made on the basis of sexual preference among beneficiaries of superannuation entitlements. No attempt has been made in any complaint before the Commission to argue that there was.

Neither of the other justifications permitted by ILO 111, namely measures restricting individuals suspected of activities prejudicial to national security (article 4) and special measures of protection or assistance (article 5.1), could be argued to apply in this case.

5. Recommendation

The purpose of superannuation is to provide income support to employees upon retirement and to their surviving dependants in the event of early death. In the case of early death, the beneficiaries are those the employee nominates or who benefit through the operation of law. Since one objective of the enactments is to provide income security to members' dependants, their provisions should fully address this purpose.

The use of characteristics such as 'sex', 'marital status' and marriage may have historically defined a relationship of dependency - such as one with a partner or children. But relationships in Australia today are more varied and complex. Opposite-sex relationships are no longer characterised by dependency. And same-sex relationships often reflect similar characteristics to opposite-sex relationships. The family remains an important social institution, but the notion of family has changed.

Marriage is no longer the defining characteristic of a family or of permanent domestic relationships.38 The Human Rights Committee has considered the notion of 'family' in relation to ICCPR article 23 which protects the family as a fundamental social institution. The Committee acknowledged that there may be a variety of ways of defining a family. Other provisions of the Covenant also guarantee protection of the family and its members, directly or indirectly. The Committee concluded that 'when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23'.39

A bill currently before the Parliament, if passed, will make substantial amendments to the operation of Commonwealth statutory superannuation schemes. The Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Bill 1998 and a bill dealing with other consequential amendments will amend some of the relevant provisions which are the subject of this examination. This bill can include further amendments to ensure that the enactments operate in a manner consistent with human rights.

The Commission recommends that sections 8A and 8B of the Superannuation Act 1976 (Cth), sections 6A and 6B of the Defence Force Retirement and Death Benefits Act 1973 (Cth), the relevant Trust Deed and Rules of the Public Sector Superannuation Scheme under the Superannuation Act 1990 (Cth) and the relevant Trust Deed and Rules of the Military Superannuation and Benefits Scheme under the Military Superannuation and Benefits Act 1991 (Cth) be amended to remove provisions which impair equality of opportunity in employment and deny equal protection before the law. In particular, gender specific terms, such as 'husband', 'wife' and 'spouse' which are used to determine eligibility for a spouse benefit, should be replaced with gender neutral terminology so that the benefits apply equally to opposite-sex and same-sex partners.

Bibliography

Australian Cases

Ball v Newey (1988) 13 NSWLR 489

Benney v Jones (1991) 23 NSWLR 559

Brown and Commissioner for Superannuation (1995) 38 ALD 344

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Muller (1998) EOC 92-931

Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Kelland (1998) EOC 92-932

Fitzpatrick and Commissioner for Superannuation (1995) 38 ALD 76

Griffin v The Catholic Education Office (1998) EOC 92-928

Hope v NIB Health Fund Ltd (1995) EOC 92-716

Re Coram: Ex parte Official Trustee in Bankruptcy v Inglis (1992) 109 ALR 353

Re RC and Director - General of Social Services (1981) 3 ALD 334

Roy v Sturgeon (1986) 11 NSWLR 455

Secretary, Department of Social Security v SRA (1993) 118 ALR 467

W and T [1998] FLC 92-808, 23 Fam LR 175

Weston v Public Trustee (1986) 4 NSWLR 407

Wilson v Qantas (1985) EOC 92-141

United States Cases

Baehr v Lewin 852 P 2d 44 (1993)

Braschi v Stahl Associates Co 544 NYS 2d. 784 (1989)

Loving v Virginia 388 US 1 (1967)

Romer v Evans 517 US 620 (1996)

New Zealand Cases

Quilter & Ors v Attorney-General [1998] 1 NZLR 528

United Kingdom Cases

Barclays Bank plc v O'Brien [1994] 1 AC 180, 198

Corbett v Corbett [1971] P 83

Dyson Holdings Ltd v Fox [1975] 3 All ER 1030

Hyde v Hyde (1866) LR 1 P& D 130

Harrogate BC v Simpson (1984) 17 HLR 205

Fitzpatrick v Sterling Housing Association Ltd [1997] 4 All ER 991

R v Ministry of Defence; ex parte Smith [1995] IRLR 585 (HC)

R v Secretary for State for Defence: ex parte Perkins [1997] IRLR 297

Canadian Cases

Canada (Attorney-General) v Mossop (1990) 71 DLR (4th) 661

Egan v Canada (1995) 124 DLR (4th) 609

Knodel v British Columbia (Medical Services Commission) (1991) 6 WWR 728.

Layland v Ontario (1993) 104 DLR (4th) 214

Leshner v Ontario (No.2) (1992) 16 Canadian Human Rights Reports (CHHR) D/184

UN Human Rights Committee Views

Toonen v Australia Communication 488/1992, UN Doc. CCPR/C/50/D/488/1992, 4 April 1994

UN Human Rights Committee General Comments

Human Rights Committee, General Comment 18, Article 26

Human Rights Committee, General Comment 19, Article 23

in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 26 and 28 (1994).

European Court of Justice Decisions

Grant v South West Trains C-249/96, 1998-2 Reports of Cases, 621

European Court of Human Rights Cases

B v UK (1990) 64 D & R

Cossey v UK [1991] 2 FLR 492

Kerkhoven v The Netherlands [1993] Fam Law 102

S v UK (1986) 47 D & R

Rees v UK (1986) 9 EHRR 56

X v UK (1996) 20 EHRR CD 6

X v UK (1983) 32 D & R 220

Australian Legislation

Commonwealth Superannuation Scheme Amendment Act 1992(Cth)

Defence Force Retirement and Death Benefits Act 1973 (Cth)

Domestic Relationship Act 1994 (ACT)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Marriage Act 1961 (Cth) - sections 46(1) and 69(2)

Military Superannuation and Benefits Act 1991 (Cth)

Sex Discrimination Act 1984 (Cth)

Superannuation Act 1976 (Cth)

Superannuation Act 1990 (Cth)

Superannuation Legislation Amendment Bill 1991

Articles and Texts

Bailey-Harris, R, 'Financial Rights in Relationships outside Marriage: a Decade of Reforms in Australia' [1995] IJLF 233

Bromley & Lane Bromley's Family Law, Butterworths, 1992

Chambers, D, 'What if? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples' (1996) 95 Michigan Law Review 447

Commissioner for Superannuation: Annual Report 1996-1997, Parliamentary Paper No. 378 of 1997

Hon. Justice Nicholson, 'The Changing Concept of Family - The Significance of Recognition and Protection' (1997) 11 Australian Journal of Family Law 13

Nygh, P, 'Homosexual Partnerships in Sweden' (1997) 11 Australian Journal of Family Law 11

Papers from the conference on Sexual Orientation and the Law: Volume 3 No. 3 (September 1996) Elaw Murdoch University Electronic Journal of Law

Superannuation Guidelines, HREOC, 1993

Superannuation and the Sex Discrimination Act 1984: Current Status and Future Directions, HREOC, AGPS, 1994

Appendix A: Superannuation Act 1976 (Cth)

Pre-1992

Before the amendment of 1992, section 3 defined 'spouse' as follows. One of four tests would be applied.

1. A person who was legally married to the deceased person at the time of the person's death and who, at that time, was living with the person on a permanent and bona fide domestic basis.
2. A person who was legally married to the deceased person at the time of the person's death but who was not living with the person on a permanent and bona fide domestic basis at that time, and who, in the opinion of the Commissioner, was wholly or substantially dependent upon the deceased person at that time.
3. A person who was not legally married to the deceased person at the time of the person's death but who, for a continuous period of not less than 3 years immediately preceding the person's death, had ordinarily lived with the person as the person's husband or wife, as the case may be, on a permanent and bona fide domestic basis.
4. A person who was not legally married to the deceased person at the time of the person's death but who, for a continuous period of less than 3 years immediately preceding the person's death, had ordinarily lived with the person as the person's husband or wife, as the case may be, on a permanent and bona fide domestic basis, and who, in the opinion of the Commissioner, was wholly or substantially dependent upon the deceased person at the time of the deceased person's death.

1992 Amendments

Marital relationship - section 8A

1. For the purposes of this Act, a person had marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time.
2. For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis at a particular time only if:
   
   1. the person had been living with that other person as that other person's husband or wife for a continuous period of at least 3 years up to that time; or
   2. the person had been living with that other person as that other person's husband or wife for a continuous period of less than 3 years up to that time and the Board, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time; whether or not the person was legally married to that other person.
3. For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
4. For the purpose of subsection (2), relevant evidence includes, but is not limited to, evidence establishing any of the following:
   
   1. the person was wholly or substantially dependent on that other person at the time
   2. the persons were legally married to each other at the time;
   3. the persons had a child who was:
      
      1. born of the relationship between the persons; or
      2. adopted by the persons during the period of the relationship;
   4. the persons jointly owned a home which was their usual residence.
5. For the purposes of this section, a person is taken to be living with another
   
   person if the Board is satisfied that the person would have been living with that other person except for a period of:
   1. temporary absence; or
   2. absence because of the person's illness or infirmity.

Spouse who survives a deceased person - section 8B

1. In this section "deceased person" means a person who was, at the time of his or her death, an eligible employee or a retirement pensioner.
2. For the purposes of this Act, a person is a spouse who survives a deceased person if:
   
   1. the person had a marital relationship with the deceased person at the time of the death of the deceased person ("the death" ); and
   2. in the case of a deceased person who was a retirement pensioner at the time of the death:
      
      1. the marital relationship began before the retirement pensioner became a retirement pensioner; or
      2. the marital relationship began after the retirement pensioner became a retirement pensioner but before the retirement pensioner reached 60; or
      3. in the case of neither subparagraph (i) nor (ii) applying-the marital relationship had continued for a period of at least 5 years up to the time of the death.
3. In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
   
   1. the person had previously had a marital relationship with the deceased person; and
   2. the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and
   3. in the case of a marital relationship that began after the deceased person became a retirement pensioner and reached 60 - - the relationship began at least 5 years before the deceased person's death; and
   4. in the Board's opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.

Part VI-Benefits payable to spouses and children

Spouse's benefit on death of eligible employee before attaining maximum retiring age - section 81

1. Where an eligible employee who dies before attaining his or her maximum retiring age is survived by a spouse, then, except in a case where subsection (2) of this section applies, the spouse is entitled:
   
   1. if the spouse does not make an election under section 83 or 84-to spouse's pension in accordance with section 82 and, where the eligible employee had paid supplementary contributions, a lump sum benefit in accordance with that section;
   2. if the spouse makes an election under section 83 - - to spouse's pension, and a lump sum benefit, in accordance with that section; or
   3. if the spouse is entitled to make an election under section 84 and makes such an election - to a lump sum benefit in accordance with that section.
2. Where:
   
   1. an eligible employee who dies before attaining his or her maximum retiring age is survived by a spouse;
   2. there was in force in respect of the eligible employee, immediately before his or her death, a benefit classification certificate; and
   3. the Board is of the opinion that the eligible employee's death was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or conditions;

      the spouse is entitled:

   4. where the period of contributory service of the eligible employee is not less than 8 years:
      
      1. if the spouse does not make an election under section 86 or 87 - - to spouse's pension in accordance with section 85 and, where the eligible employee had paid supplementary contributions, a lump sum in accordance with that section;
      2. if the spouse makes an election under section 86 - - to spouse's pension, and a lump sum benefit, in accordance with that section; or
      3. if the spouse is entitled to make an election under section 87 and makes such an election - to a lump sum benefit in accordance with that section; or
   5. where the period of contributory service of the eligible employee is less than 8 years - - to a lump sum benefit in accordance with section 88.
3. Where the surviving spouse is the spouse of an eligible employee who, if he or she had not died but had retired on the ground of invalidity on the day of his or her death, would have been entitled to invalidity benefit as provided by subsection 66(3) or (3A), the spouse shall be deemed, for the purposes of this Division, to have made an election under subsection 83(1) or 86(1), as the case may be.

   (3A) Subsection (3) shall not be taken to prevent a spouse who would, but for that subsection, be entitled to make an election under subsection 84(1) or 87(1) from making such an election and becoming entitled to spouse's benefit in accordance with section 84 or 87, as the case may be.

4. Subsections (1) and (2) do not apply to the spouse of a deceased eligible employee whose period of prospective service is less than 1 year.

Spouse's benefit on death of eligible employee after attaining maximum retiring age - section 89

1. Where an eligible employee who dies on or after attaining his or her maximum retiring age is survived by a spouse, the spouse is entitled to:
   
   1. spouse's standard pension in accordance with section 90;
   2. subject to subsection 92(2), spouse's additional pension in accordance with subsection 91(1); and
   3. lump sum benefit (if any) in accordance with subsection 91(2).
2. Subsection (1) does not apply to the spouse of a deceased eligible employee whose period of contributory service is less than 1 year.

Spouse's benefit on death of pensioner - section 93

(1) Where a pensioner to whom age retirement pension or early retirement pension is payable dies and is survived by a spouse, the spouse is entitled:

(a) to spouse's standard pension in accordance with section 94; and

(b) if the pensioner:

(i) did not make an election under section 64; or

(ii) made an election under subsection 64(2) but died before a lump sum benefit became payable;

(c) to spouse's additional pension under section 95.

(2) Where a pensioner to whom invalidity pension is payable dies and is survived by a spouse, the spouse is entitled to spouse's pension in accordance with section 96.

Appendix B: Defence Force Retirement and Death Benefits Act 1973

Pre-1977

Section 3 of the DFRDB Act 1973, before the 1977 amendment, provided:

"'widow', in relation to a deceased member of the scheme, includes a dependent female of the member, but does not include - (a) a person who, immediately before the death of the member, was his wife but was not living with him as his wife and was not wholly or partly dependent on him; ..."

1977 Amendments

The Defence Force (Retirement and Death Benefits Amendments) Act (No. 2) Act repealed that provision and provided alternatively the following in section 3(1).

"In this Act, unless the contrary intention appears -

'widow', in relation to a male person who had died and was, at the time of his death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable means -

1. a person who was legally married to the deceased person at the time of the deceased person's death and who, at that time, was living with the deceased person on a permanent and bona fide domestic basis;
2. a person who was legally married to the deceased person at the time of the deceased person's death but who was not living with the deceased person on a permanent and bona fide domestic basis at that time, and who, in the opinion of the Authority, was wholly or substantially dependent upon the deceased person at that time;

but, where the deceased person was, at the time of his death, a recipient member, does not include - in s.3(1) of the Act as including a "dependent female" of the member.

"Dependent female" in relation to a deceased male member of the scheme, was defined to mean a woman who _

1. for a period immediately preceding his death (being a period that did not commence after the member had attained the age of sixty years) had lived with him as his wife on a permanent and bona fide domestic basis, although not legally married to him; and
2. was, at the time of his death, wholly or partly dependent on him;"

1992 amendments

Marital relationship - section 6A

1. For the purpose of this Act, a person had a marital relationship with another person at a particular time if the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time.
2. For the purpose of subsection (1), a person is to be regarded as ordinarily living with another person as that other person's husband or wife on a permanent and bona fide domestic basis at a particular time only if:
   
   1. the person had been living with that other person as that other person's husband or wife for a continuous period of at least 3 years up to that time; or
   2. the person had been living with that other person as that other person's husband or wife for a continuous period of less than 3 years up to that time and the Authority, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis at that time; whether or not the person was legally married to that other person.
3. For the purposes of this Act, a marital relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph (2)(a) or (b).
4. For the purpose of subsection (2), relevant evidence includes, but it is not limited to, evidence establishing any of the following:
   
   1. the person was wholly or substantially dependent on that other person at the time;
   2. the persons were legally married to each other at the time;
   3. the persons had a child who was:
      
      1. born of the relationship between the persons; or
      2. adopted by the persons during the period of the relationship;
   4. the persons jointly owned a home which was their usual residence.
5. For the purposes of this section, a person is taken to be living with another person if the Authority is satisfied that the person would have been living with that other person except for a period of:
   
   1. temporary absence; or
   2. absence because of special circumstances (for example, absence because of the person's illness or infirmity or a posting of the person).

Spouse who survives a deceased person - section 6B

1. In this section 'deceased person' means a person who was, at the time of his or her death, a contributing member, a recipient member or a person in respect of whom deferred benefits were applicable.
2. For the purposes of this Act, a person is a spouse who survives a deceased person if:
   
   1. the person had a marital relationship with the deceased person at the time of the death of the deceased person ('the death'); and
   2. in the case of a deceased person who was a recipient member at the time of the death:
      
      1. the marital relationship began before the recipient member became a recipient member; or
      2. the marital relationship began after the recipient member became a recipient member but before the recipient member reached 60; or
      3. in the case of neither subparagraph (i) nor (ii) applying the marital relationship had continued for a period of at least 5 years up to the time of the death.
3. In spite of subsection (2), a person is taken to be a spouse who survives a deceased person if:
   
   1. the person had previously had a marital relationship with the deceased person; and
   2. the person did not, at the time of the death, have a marital relationship with the deceased person but was legally married to the deceased person; and
   3. in the case of a marital relationship that began after the deceased person became a recipient member and reached 60-the relationship began at least 5 years before the deceased person's death; and

   (2) in the Authority's opinion, the person was wholly or substantially dependent upon the deceased person at the time of the death.

Spouse's pension on death of contributing member - section 38

Where a member of the scheme who is a contributing member dies before retirement and is survived by a spouse, the spouse is entitled to a pension at a rate equal to five-eighths of the rate at which invalidity pay would have been payable to the deceased member if, on the date of the deceased member's death, the deceased member had become entitled to invalidity benefit and had been classified as Class A under section 30.

Spouse's pension on death of recipient member - section 39

1. Where a member of the scheme who is a recipient member dies and is survived by a spouse, then, subject to sections 47 and 75, the spouse is entitled to a pension at a rate equal to five - eighths of the rate at which retirement pay or invalidity pay was payable to the deceased member immediately before the member's death or, if the member had commuted a portion of the member's retirement pay under section 24 or a portion of the member's invalidity pay under section 32A, at a rate equal to five - eighths of the rate at which retirement pay or invalidity pay, as the case may be, would have been payable to the member immediately before the member's death if the member had not so commuted a portion of the member's retirement pay or invalidity pay, as the case may be.
2. In spite of subsection (1), if, on any of the 7 pay - days immediately following the death of a recipient member, the rate at which pension would, apart from this subsection, be payable to the spouse of the member is less than the rate (in this subsection called the "putative rate") at which retirement pay or invalidity pay (as the case may be) would be payable to the deceased member on that day if the member had not died, the spouse is entitled to a pension at a rate equal to the putative rate.

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Footnotes

Last updated 29 August, 2006