Stewart, Miranda --- "Are You Two Interdependent?' Family, Property and Same-Sex Couples in Australia's Superannuation Regime" [2006] SydLawRw 21; (2006) 28(3) Sydney Law Review 437
†Lindsy Van Gelder & Pamela Brandt, Are You Two Together?: A Gay and Lesbian Travel Guide to Europe (1991).
*Senior Lecturer, University of Melbourne. Thanks to the anonymous referee and editor for useful comments and to Kristen Walker for her insight and ongoing interdependence.
[1] All states and territories except South Australia recognise same-sex couples on an equal footing with opposite-sex de facto relationships in respect of inheritance and property laws and state taxes, although equality is not always provided in respect of children. The Statutes Amendment (Relationships No 2) Bill 2005 (SA) has lapsed and has not yet been reintroduced pending the South Australian election. A Civil Unions Bill 2005 (SA) was also introduced in 2005 and has lapsed. Tasmania's Relationships Act 2003 (Tas) provides a registration system for same-sex couples. A civil union regime for same-sex and opposite-sex couples was passed in the ACT: Civil Unions Act 2006 (ACT) and immediately disallowed by federal executive order on 13 June 2006: Commonwealth of Australia Special Gazette No S93, 14 June 2006.
[2] Human Rights and Equal Opportunity Commission, Same-Sex: Same Entitlements, National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits Discussion Paper (April, 2006).
[3] Shadow Attorney-General, Nicola Roxon Media Release, (22 June 2006); Laura Tingle, ‘Federal Ban on Aiding Same-Sex Rights Enquiry’ AFR (22 June 2006) at 5.
[4] The legislation limits the definition of ‘marriage’ to a man and a woman, so as to prevent the recognition by our courts of same-sex couples marriages formalised in Canada, the Netherlands or other countries: Marriage Amendment Act 2004 (Cth). See Kristen Walker, ‘Same-Sex Marriage in Australia’ (2006) 10 IJHR (forthcoming).
[5] Above n1.
[6] Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 (Cth) Sched 2.
[7] Prime Minister John Howard, Press Conference Transcript (27 May 2004), available from Capital Monitor.
[8] Commonwealth of Australia, Treasury, A Plan to Simplify and Streamline Superannuation: Detailed Outline (9 May 2006), available from <http://simplersuper.treasury.gov.au> (14th July 2006) (hereafter ‘Simpler Superannuation’).
[9] Minister for Revenue, Mal Brough, ‘Super Savings Continue Strong Growth’ Media Release(13 October 2005).
[10] Superannuation Guarantee Charge Act 1992 (Cth) and associated legislation.
[11] The tax concessions are contained in the Income Tax Assessment Act 1936 (Cth) (hereafter ‘ITAA 1936’) and the Income Tax Assessment Act 1997 (Cth) (hereafter ‘ITAA 1997’).
[12] Commonwealth of Australia, Treasury, Tax Expenditures Statement 2005 (2005) Item C1 at 113 and Appendix B (hereafter ‘Tax Expenditures Statement’).
[13] Simpler Superannuation, above n8.
[14] Public superannuation schemes for government employees are established under state and federal government legislation. Retirement Savings Accounts (hereafter ‘RSAs’) are an alternative to superannuation funds under the Retirement Savings Account Act 1987 (Cth). This article does not discuss RSAs in any detail; however, the discussion as to superannuation funds generally applies to RSAs.
[15] SIS Act s62; ITAA 1936 s6(1) ‘superannuation fund’. The ‘compliance’ test is set out in SIS Acts42; see also Superannuation Industry (Supervision) Regulations 1993, (hereafter ‘SIS Regs’) Reg 6.22.
[16] The threshold age is 60 for individuals born after 30 June 1964 and 55 for most born earlier; however, preserved benefits may be accessed on satisfying a ‘condition of release’: SIS Regs, Sched 1.
[17] ITAA 1936 s82AAS, and s82AAT; Constable v FCT [1952] HCA 64; (1952) 86 CLR 402. The deductible contributions ceiling in 2005–6 is $14,603 if aged under 35; $40,506 if aged 35 to 49 or $100,587 if aged 50 or over.
[18] Superannuation (Government Co-Contribution for Low Income Earners) Act 2003 (Cth).
[19] Income Tax Rates Act 1986 (Cth) s26. Noncomplying funds pay tax at the top marginal rate. Other income tax concessions for complying funds include taxation of only two thirds of capital gains under ITAA 1997 Div 115 and the exemption of earnings that support pensions under ITAA1936 s282A.
[20] Simpler Superannuation, above n8 at 1.1.
[21] ITAA 1936 s27A. Only the first two concessions qualify as ‘tax expenditures’ in the context of a comprehensive income tax baseline: see Tax Expenditures Statement, Appendix B, discussed in more detail in Part 5.
[23] ITAA 1936 s140ZD.
[24] Simpler Superannuation, above n8 at 12.
[25] ITAA 1936 s27A(1) ‘ETP’ para (ba) & s27AAA(4). As for other ETPs, amounts in excess of the RBL are taxed at a 47 per cent rate.
[26] Simpler Superannuation, above n8 at 16.
[27] SIS Act s62(1)(b)(iv) and (v); SIS Regs, Reg 6.22.
[28] SIS Act s10(1).
[29] SIS Act s59(1A). A nomination is also only binding for three years from the date it is made.
[30] Superannuation Complaints Tribunal, Annual Report 2003–2004 (2005) at 31–32 (Table 2).
[31] ITAA 1936 s27AA and s27AB.
[32] A death benefit ETP can include the commuted value of a pension from a fund: ITAA 1936 s27AAA(2), Item 4 and s27AAA(7) in some circumstances.
[33] ITAA 1936 s27A(1) ‘eligible termination payment’ para (aa), s27A(3)(b).
[34] ITAA 1936 s27A(1) ‘eligible termination payment’ para (c), s27A(3)(b).
[35] ITAA 1936 s27A(1). This applies when the annuity was purchased after 12 January 1987.
[36] ITAA 1936 s27A(1) ‘eligible termination payment’ paras (fd), (ff); s27A(3)(b). These are payments under Small Superannuation Accounts Act 1995 (Cth) s76(7) and any ‘shortfall component’ paid under Superannuation Guarantee (Administration) Act 1992 (Cth) s76.
[37] SIS Act s10(1) ‘dependant’, amended effective 1 July 2004 to include ‘interdependency relationship’ by Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 (Cth) Sched 2. An identical amendment was also made to the Retirement Savings Account Act 1987 (Cth).
[38] ITAA 1936 s27A(1) ‘dependant’.
[39] ITAA 1936 s6(1); SIS Act s10(1).
[40] Hyde v Hyde and Woodman (1866) LR 1 P&D 130; R v L [1991] HCA 48; (1991) 174 CLR 379; Cth v HREOC & Anor [1998] 138 FCA; Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395. These decisions have not interpreted the meaning of ‘marriage’ in the Australian Constitution; see further Walker, above n4.
[41] [1995] AATA 130; (1995) 21 AAR 378 at [57]. This case was recently discussed and applied in the context of denying capital gains tax rollover relief to members of a lesbian couple under ITAA 1997: [2006] AATA 728, August 2006.
[42] Insurance and Superannuation Commission, Superannuation Circular No IC2 (June 1995); reiterated by APRA, Superannuation Circular No IC2 (March 1999). The Commissioner of Taxation has not issued a binding ruling on the meaning of ‘spouse’ but takes the view that same-sex partners can not be ‘spouses’ in a number of non-binding interpretive decisions, which are anonymised published statements of decisions relating to specific taxpayers: ATO Interpretive Decision ID 2002/731 (not a spouse for superannuation death benefit purposes); ID 2002/649 (not a spouse for superannuation contribution purposes); ID 2002/211 (no dependant spouse rebate); ID 2002/826 (no transfer of baby bonus to same sex partner); ID 2003/7 (not an ‘associate’ except if there is an ‘arrangement’ for purposes of Fringe Benefits Tax).
[43] Superannuation Complaints Tribunal, Legal Issues in Death Benefits: Forum Discussion Paper (January 2002) at [7.3.1], available from <http://www.sct.gov.au> (14 July 2006).
[44] The situation would have been more difficult for the trustee of the fund had Allan not been specified as LPR, although many trustees would have made a payment to Allan after exhausting other inquiries.
[45] See ATO Interpretive Decision ID 2003/871 for similar facts to this example. The ceiling is based on Joe’s pension RBL. If any of the payment came from an ‘untaxed’ source, such as Joe’s former employer, it will be taxed at a 30 per cent rate.
[46] SIS Act s10(1); ITAA 1997 s995–1(1).
[47] For an overview, see The Laws of Australia (2000) at [17.6], Parts A – C. Some of the issues are discussed in Victorian Law Reform Commission, Inquiry into Assisted Reproductive Technology and Adoption, Position Paper 2 – Parentage (2005); see also Taxation Ruling TR 98/4 concerning child maintenance trusts.
[48] Henry Finlay, Rebecca Bailey-Harris and Margaret Otlowski, Family Law in Australia (5th ed, 1997) at 354; B v J [1996] FamCA 124; (1996) 21 Fam LR 186; Tobin v Tobin (1999) FLC 92–848; ND v BM [2003] FamCA 469; (2003) 175 FLR 355; Re Mark [2003] FamCA 822; (2003) 179 FLR 248.
[49] The Laws of Australia, above n47, 17.6 Part C [12](2). Status of children legislation includes the Parentage Act 2004 (ACT); Status of Children Act 1978 (NT); Status of Children Act 1996 (NSW); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic); and Inheritance (Family and Dependants Provision) Act 1972 (WA).
[50] SIS Act s10(1); ITAA 1997 s995–1.
[51] This is the approach taken by the SCT under the SIS Act: see SCT, above n43 at [7.2.3].
[52] However, if there is no de facto spouse relationship established, the SCT takes the view that the trustee must be satisfied that an ex-nuptial child is, in fact, the biological child of the deceased member of the fund: SCT, above n43 at [7.2.3].
[53] See Parentage Act 2004 (ACT) at Div 2.2; Status of Children Act 1978 (NT) at Part IIA; Status of Children Act (1996) (NSW) s14; Status of Children Act 1978 (Qld) at Part III; Family Relationships Act 1975 (SA) at Part IIA; Status of Children Act 1974 (Tas) at Part III; Status of Children Act 1974 (Vic) at Part 2; Artificial Conception Act 1985 (WA) ss5, 6 & 7; and Family Law Act 1975 (Cth) s60H(1); Re Patrick [2002] FamCA 193; (2002) 28 Fam LR 579.
[54] Victorian Law Reform Commission, Position Paper 2, above n47 at [3.4]–[3.5].
[55] Family Law Act 1975 (Cth) s61D.
[56] Kauri Timber Co (Tas) Pty Ltd v Reeman [1973] HCA 8; (1973) 128 CLR 177; Aafjes v Kearney (1976) 180 CLR 199 (Barwick CJ) at 202. Note that this means that case law is ‘instructive’ but not binding: Aafjes (Mason J) at 210.
[57] Lee v Munro (1928) 21 BWCC 401, 408, cited with approval by Gibbs J in Aafjes v Kearney, above n56 at 208; and see SCT, above n43 at [7.4].
[58] APRA, Superannuation Circular No IC2, above n42 at [14].
[59] [1999] NSWSC 1137 (Rolfe J) at [16].
[60] Id at [10].
[61] SCT, above n43 at [7.6].
[62] Income Tax Ruling IT 2168 at [41] (28 June 1985); ATO Interpretive Decision ID 2002/731.
[63] Re Malek v FCT [1999] AATA 678; (1999) 42 ATR 1203.
[64] Re Malek, above n63 at 1207 (Pascoe, Senior Member).
[65] Re Malek, above n63 at 1206.
[66] Case 2/2000; [2000] AATA 8; (2000) 43 ATR 1273 at [13]–[14].
[67] ATO Interpretive Decision ID 2002/480.
[68] ATO Interpretive Decision ID 2002/481.
[69] SCT Determinations D00–01\045 (20 July 2000); D00–01\152 (23 November 2000); D01–02\212 (28 February 2002); D04\05–078 (28 September 2004); D04–05\197 (30 May 2005); D05–06\061 (30 May 2005), available from <http://www.sct.gov.au> (14th July 2006). Two earlier Determinations, in early 1996 and 1997, were referred to by Margaret McDonald, Director of the SCT, in evidence before the Senate Select Committee on Superannuation and Financial Services. See Commonwealth of Australia, Senate Select Committee on Superannuation and Financial Services, Hearings, Reference: Provisions of the Superannuation (Entitlements of Same Sex Couples) Bill 2000 (Hansard) 3 March 2000 at 20.
[70] Determinations D00–01\152 (23 November 2000); D04\05–078 (28 September 2004); D04–05\197 (30 May 2005).
[71] Determinations D01–02\212 (28 February 2002); D05–06\061 (30 May 2005).
[72] Determination D00–01\045 (20 July 2000)
[73] Determinations D04–05\078 (28 September 2004); D04–05\197 (30 May 2005).
[74] This is supported by a workers’ compensation decision that suggests dependency may be established by showing the sharing of earnings expended for joint needs Re Lambroglou v Cth (1989) 19 ALD 33 at 36 (AAT) (Senior Member Handley), which the SCT apparently applies in the superannuation context: SCT, above n43 at [7.6.9].
[75] See, Determination No D00–01\103, in which the SCT overturned a distribution of a death benefit four ways between the deceased’s de facto spouse of 20 years and his three adult sons, and determined that the whole benefit should be paid to the de facto spouse; and see SCT, above n43 at [7.6.17].
[76] Evidence of Philippa Judith, CEO of ASFA, before the Senate Select Committee on Superannuation and Financial Services, above n69 at 1.
[77] ATO Interpretive Decision ID 2002/731.
[78] Anthony Albanese, evidence before the Senate Select Committee on Superannuation and Financial Services, above n69 at 13.
[79] Hope and Brown v NIB Health Fund Ltd (1995) 8 ANZ Insurance Cases 61–269, discussed in Human Rights and Equal Opportunity Commission, Superannuation Entitlements of Same-sex Couples, HRC Report No 7 (1999); and see NSW Gay and Lesbian Rights Lobby, Superannuation and Same Sex Relationship (Anne Scahill & Michael Alexander), 18 June 1996, available from <http://www.glrl.org.au> (14 July 2006).
[80] Hope and Brown, above n79 at 76,021 (King, Jowett & Alt JJ).
[81] Jenni Millbank, ‘Which, Then, Would be the ‘Husband’ and Which the ‘Wife’?’: Some Introductory Thoughts on Contesting ‘the Family’ in Court’ (September 1996) Murdoch University Electronic Journal of Law, Conference Papers from ‘Sexual Orientation and the Law’ at [19]–[23]; Ball v Newey (1988) 13 NSWLR 489; Benney v Jones (1991) 23 NSWLR 559.
[82] Kauri Timber Co (Tas) Ltd v Reeman, above n56; Re Commr of Superannuation and Scott[1987] FCA 79; (1987) 13 FCR 404.
[83] [1973] HCA 8; (1973) 128 CLR 177.
[84] A long line of similar decisions concern ‘dependants’ in state and federal workers’ compensation statutes which all require dependence on ‘earnings’ of the worker, or expressly limit it to ‘dependence for economic support’ as in the Safety, Rehabilitation and Compensation Act 1988 (Cth) s4.
[85] Re Commr of Superannuation and Scott, above n82.
[86] Re Commr of Superannuation and Scott, above n82 (Fisher & Spender JJ) at 410.
[87] Supplementary Explanatory Memorandum accompanying the Senate to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Bill 2003 (hereafter ‘the EM’) at [2.6].
[88] Income Tax Amendment Regulations 2005 (No 7) (Cth) (hereafter ‘IT Reg’); Superannuation Industry (Supervision) Amendment Regulations 2005 (Cth) inserting new Reg 1.04AAAA into the SIS Regs. The Regulations are in identical terms and are based on Exposure Draft Regulations released by Treasury in May 2005, with some minor amendments.
[89] ITAA 1936 s27AAB(1)(a–d).
[90] SIS Act s10A is in identical terms.
[91] Minister for Revenue and Assistant Treasurer Senator Helen Coonan, Fairer Treatment for Interdependent Relationship Media Release (27 May 2004). There is no mention of same-sex couples in the EM, above n87.
[92] Section 4(3). That notion refers to a marriage-like relationship, requiring examination of the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship and the nature of each person’s commitment to each other: Lambe v Director-General of Social Services [1981] FCA 171; (1981) 57 FLR 262; Re Tang v Director-General of Social Services (1981) 3 ALN N83.
[93] Migration Regulations 1994 (Cth) Reg 1.09A.
[94] Department of Immigration and Multicultural Affairs, Interdependency Visa: <http://www.immi.gov.au/migrants/partners/interdependence/814-826/eligibility-applicant.htm> (14 July 2006).
[95] Commonwealth of Australia, Department of Defence, DEFGRAM No 590/2005 (21 October 2005), commencing 1 December 2005.
[96] IT Reg 8A(1); SIS Reg 1.04AAAA(1).
[97] ASFA, Letter of 17 June 2005 to The Treasury, available from: <http://www.superannuation.asn.au> (14th July 2006).
[98] Property (Relationships) Act 1984 (NSW) s4(2) requires that ‘all the circumstances of the relationship are to be taken into account, including any one or more of the following matters as may be relevant in a particular case —
(a) the duration of the relationship; (b) the nature and extent of common residence; (c) whether or not a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (e) the ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the performance of household duties; (i) the reputation and public aspects of the relationship.’
See also Property Law Act 1958 (Vic) ss275(1), 275(2), which contains a very similar list of factors for determining the existence of a ‘domestic relationship’ in Victoria.
[99] Roy v Sturgeon (1986) 11 NSWLR 454; Weston v Public Trustee (1986) 4 NSWLR 407 and see Australian De Facto Relationships Law (2005) at 9–695 referring to a ‘vast case law’.
[100] Roy v Sturgeon, id at 458–9. One factor stated by Powell J that is not in any of the various statutory lists is ‘the procreation of children’. However, the ‘care and support of children’ remains in all lists.
[101] See SCT, above n43 at [7.2.1]. An example of application of these factors in the superannuation context is found in Hourn v Farm Plan Pty Limited [2003] FCA 1122.
[102] Explanatory Statement accompanying Income Tax Amendment Regulations 2005 (No 7) (Cth), at 5.
[103] Above n91.
[104] IT Reg 8A(1)(b); SIS Reg 1.04AAAA(1)(b).
[105] The Relationships Act 2003 (Tas) allows registration of same-sex or opposite-sex ‘significant relationships’.
[106] See above n1; for more detail see ACT Department of Justice and Community Safety, The Recognition of Same Sex Relationships in the ACT: Discussion Paper (Canberra: DJCS, 2005).
[107] EM, above n87 at [2.12].
[108] Ibid.
[109] Explanatory Statement, above n102 at 4.
[110] However, the Relationships Act 2003 (Tas) recognises domestic relationships where the parties do not cohabit, as does Victorian law for certain ‘non-financial’ purposes, such as decisions as to organ donation: see, eg, Human Tissue Act 1982 (Vic) s3(1), definition of ‘domestic partner’.
[111] AAT Case 12,501 [1997] AATA 572; (1987) 37 ATR 1233; Richardson v Kidd [2002] NSWSC 306; McRae v McRae (1967) 68 SR (NSW) 361; Hibberson v George (1989) 12 Fam LR 725.
[112] Explanatory Statement, above n102 at 5.
[113] IT Reg 8A(3)(c)(i), which supplants those requirements in the definition of interdependency relationship by virtue of being made under ITAA 1936 s27AAB(3)(b).
[114] IT Reg 8A(3)(c)(ii).
[115] ITAA 1936 s27AAB(1)(c).
[116] EM, above n87 at [2.7].
[117] It has been stated that ‘it is an almost impossible task’ to show that de jure or de facto opposite-sex spouses who share a household do not contribute to each others’ maintenance or financial support: Re Karpf and Commr of Taxation [2004] AATA 900 (AAT), considering that members of a de facto couple could not rebut a presumption that they had ‘contributed to the maintenance’ of each other under ITAA 1936 s251R(3)(c) (health insurance Medicare Levy surcharge). See also Thompson v FCT (1999) 99 ATC 2130 (AAT), where a joint bank account was sufficient to demonstrate maintenance; and Taxation Ruling TR 93/35.
[118] EM, above n87 at [2.16].
[119] IT Reg 8A(4).
[121] Dridi v Fillmore [2001] NSWSC 319 at [108].
[123] NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform: Report of the Inquiry into De Facto Relationships Legislation (1999) Recommendation 7 and see discussion at 55.
[124] New South Wales Law Reform Commission, Discussion Paper No 44: Review of the Property Relationships Act 1984 (NSW) (2002) at 227.
[125] Dridi v Fillmore, above n121 at [19].
[126] IT Reg 8A(1)(vii).
[127] IT Reg 8A(2).
[128] Explanatory Statement, above n102 at 4.
[129] Commonwealth Superannuation Act 2005 (Cth); PSSap Trust Deed Sched 1 Cl 1.2.1 & 3.2.2.
[130] Commonwealth Superannuation Act 1990 (Cth) and Cl A.1.2 PSS Trust Deed Sched 1.
[131] For the CSS, see Commonwealth Superannuation Act 1976 (Cth) s8A, 8B and Part VI; see also Death Benefits: <http://www.css.gov.au/css/benefits/death_benefits.html> (14 July 2006). For the PSS, see the Trust Deed, Cl B.1.2.1, definition of ‘marital relationship’ and Part B 7 Sched B and Death Benefits: <http://www.pss.gov.au/pss/benefits/death_benefits.html> (14 July 2006).
[132] Brown v Commr for Superannuation [1995] AATA 130; (1995) 38 ALD 344.
[133] Defence Force Retirement and Death Benefits Act 1973 (Cth) s6A and 6B; and Form of Trust Deed, Sched 1 Glossary, Part 5 ‘spouse’, in Sched to Military Superannuation and Benefits Act 1991 (Cth).
[134] Military Superannuation and Benefits Act 1991 (Cth), Sched, Military Superannuation and Benefits Rules, Part 2 Rule 7.
[135] Above n133.
[136] This was alluded to by Mr Anthony Albanese in his evidence before the Senate Select Committee on Superannuation and Financial Services, above n69 at 13.
[137] ITAA 1936 s279D.
[138] ITAA 1936 referring to para (a) of the definition of ‘dependant’ in s27A(1) and s279D(4).
[139] Similar problems also exist under the provisions in the CSS and PSS public sector funds, under which an individual may be eligible for benefits if they were the biological, adopted, ex-nuptial or step-child, or a ward, of the member of the fund, or his or her opposite-sex spouse who lives with the member or is wholly or substantially dependent on him or her at the time of death: Commonwealth Superannuation Act 1976 (Cth) s3(1).
[140] Property (Domestic Relationships) Act 1994 (NSW) s5(3)(d).
[141] The Adoption Act 1994 (WA) ss38 and 39, and Adoption Act 1993 (ACT) s18, which both allow adoption of a child in a same-sex couple; see further Jenni Millbank, ‘Recognition of Lesbian and Gay Families in Australian Law: Part 2: Children’ (2006) FLR (forthcoming).
[142] See discussion above in Part 3.A; ATO Interpretive Decision ID 2002/649.
[143] ITAA 1936 ss159T, 159TC.
[144] ITAA 1936 s159TA.
[145] Tax Expenditures Statement, above n12, Appendix B, Table B1.
[146] Tax Laws Amendment (Superannuation Contributions Splitting) Act 2005 (Cth) (Act No 148 of 2005), amending ITAA 1936.
[147] Commonwealth of Australia, Treasury, Election Statement 2001: A Better Superannuation System (2001); Commonwealth of Australia, Treasury, Election Statement 2004: Super for All and Understanding Money (2004).
[148] Explanatory Memorandum accompanying the Tax Laws Amendment (Superannuation Contributions Splitting) Bill 2005 at 3.
[149] New s27A(1) ‘contributions-splitting ETP’ of the ITAA 1936. This is further explained in new SIS Regs, Division 6.7, Superannuation Industry (Supervision) Amendment Regulations 2005 (No 8), Select Legislative Instrument 2005 No 334, 15 December 2005.
[150] ITAA 1936 s27D(4).
[151] On the existence of a ‘spouse’ unit in tax and transfer laws, see Miranda Stewart, ‘Domesticating Tax Reform: The Family in Australian Tax and Transfer Law’ [1999] SydLawRw 18; (1999) 21 Syd LR 453.
[152] Simpler Superannuation, above n8.
[153] Senate Select Committee Superannuation, Report (1993) at [14.42] and Recommendation 14.1; Australia, Senate Legal & Constitutional References Committee, Report of Inquiry into Sexuality Discrimination (1997); Human Rights and Equal Opportunity Commission, Superannuation Entitlements of Same-Sex couples, Report of Examination of Federal Legislation, Report No 7 (1999).
[154] The Democrats introduced the Sexuality Discrimination Bill 1996, which lapsed and was reintroduced in 1998.
[155] Anthony Albanese introduced a private member’s Bill to eliminate discrimination in superannuation (the Superannuation (Entitlements of Same Sex Couples) Bill 1998) and reintroduced it twice subsequently when it lapsed, and has fought tirelessly for recognition of same-sex couples at the federal level. The Labor Party has recently produced a draft Bill to outlaw discrimination on the basis of sexuality: Nicola Roxon MP, Shadow Attorney-General, Media Statement (7th July 2006).
[156] Senate Select Committee on Superannuation and Financial Services, above n69.
[157] Senate Select Committee on Superannuation and Financial Services, Report on the Provisions of the Superannuation (Entitlements of Same Sex Couples) Bill 2000 (2000), Government Senators’ Report at 39.
[158] Above n37; and see EM, above n87. An account of the political tussle between the Democrats and the government can be found on the weblog of Rodney Croome, gay activist: <http://www.rodneycroome.id.au/weblog?id=C0_67_1> (14 July 2006) who comments that it took some time before the government ‘figured out how it can recognise same-sex couples without actually mentioning them’.
[162] Tax Expenditures Statement, above n12, Appendix B. This is because applying the baseline of a comprehensive income tax, contributions and earnings should be taxed to the member of the fund at their marginal income tax rate each year as they accrue. Recall that Australia taxes contributions and earnings concessionally (at a 15 per cent rate). Against this baseline, it is appropriate to exempt superannuation payouts from tax.
[163] Re Commr of Superannuation and Scott, above n82 at 411.
[164] ITAA 1997 Div 126.
[165] Ibid.
[166] Some schemes, such as the CSS, do not pay a death benefit if there is no eligible spouse or children.
[167] The ceiling for the tax exemption depends on the RBL of the deceased individual rather than of the recipient to prevent ‘gaming’ of the system through planning for particular individuals to receive distributions through the estate.
[168] Asprey Report, above n160 at 367.
[169] Ibid.
[170] Jenni Millbank, ‘Domestic Rifts: Who is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 AJFL 163–183; the use of binding nominations in the superannuation context has also been problematic for a range of reasons.
[171] Alastair Nicholson, ‘The Changing Concept of Family: The Significance of Recognition and Protection’ (1997) 6 Australasian Gay and Lesbian LJ 13 at 14.
[172] Philippa Smith, CEO, ASFA, evidence before Senate Select Committee on Superannuation and Financial Services, above n69 at 1.