Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Nothing in Division 1 or 2 makes discrimination in relation to a superannuation fund by one person (in this subsection called the discriminator ) against another person (in this subsection called the aggrieved person ) unlawful if:
(a) the discrimination is on the ground of the aggrieved person's sex or marital status; and
(b) the discrimination arises only because of one or more of the following:
(i) the superannuation fund conditions include a provision that:
(A) is based on actuarial or statistical data from a source on which it is reasonable for the discriminator to rely; and
(B) is reasonable having regard to those data and any other relevant factors;
(ii) in the case of a member who has no spouse (whether legal or de facto) or has no child--the superannuation fund conditions:
(A) do not provide for superannuation benefits in the event of the member's death; or
(B) provide for less generous superannuation benefits in the event of the member's death; or
(C) do not provide for superannuation benefits to someone other than the member in the event of the member's physical or mental incapacity; or
(D) provide for less generous superannuation benefits to someone other than the member in the event of the member's physical or mental incapacity;
(iii) the superannuation fund conditions include a provision that relates to:
(A) the vesting in members or other persons of benefits arising directly or indirectly from amounts contributed to the fund; or
(B) the preservation of benefits arising directly or indirectly from amounts contributed to the fund; or
(C) the portability of benefits arising directly or indirectly from amounts contributed to another superannuation fund;
if the inclusion of that provision results in only indirect discrimination against the aggrieved person on the ground of that person's sex or marital status;
(iv) the superannuation fund conditions include a provision that confers particular benefits, or more generous benefits, only on a person to whom subsection 41B(3) or (4) applies.
(2) For the purposes of this section, discrimination against a person on the ground of the person's sex or marital status is taken to be indirect if paragraph 5(1)(b) or (c), subsection 5(2), paragraph 6(1)(b) or (c) or subsection 6(2) applies to the discrimination.
(3) This section does not apply to a person in respect of a superannuation fund if subsection 41B(3) or (4) applies to that person.
(4) In this section:
"member" , in relation to a superannuation fund, includes a person who has been a member of the fund at any time.