The recipients of Victorian government superannuation, who became entitled to pensions prior to August 2003, can be legally discriminated against on the basis of their sexual orientation.
The Victorian superannuation legislation specifically provides for discrimination against same sex couples receiving what is known as reversionary super. That is, the ability of a person to pass on their superannuation to their partner in the event of their death.
Heterosexual couples have always been able to pass on their super and when the superannuation fund recognized de-facto relationships many years ago they allowed all de-facto partners to pass on their super; both those who had already retired and those who would in the future.
It is only same sex couples that are discriminated against in this way.
How is it possible?
It is possible because the government specifies that same sex couples and only same sex couples will not be able to pass on their super. That is, it is the government’s intention, in the legislation, to discriminate on the basis of sexual orientation.
Does the Victorian Charter of Rights provide protection against discrimination for same sex couples?
In this case, no. The legislation that enables the Victorian Charter of Rights is arranged so that no one can bring an action based on a breach of the charter alone. This is called a ‘free-standing cause of action.’ A breach of the Charter can only be attached to another action, and it cannot stand alone. So a breach of the Charter because of discrimination against same sex couples cannot be taken to court unless there is also another action that it can be attached to.
That makes it hard to use the Charter and is one of the main reasons only three actions using it have been made to date.
What if I could use the Charter to fight this discrimination?
Legal advice given to OII indicates that there is no doubt, in the case of Vic Super, of its discrimination being at odds with the Victorian Charter of Rights. If we were able to have this matter heard in the Supreme Court the most favorable outcome we could expect is for the Supreme Court to declare that the legislation in question is inconsistent with the Charter. The government of the day is under no obligation to rectify this inconsistency.
In the case of the superannuation law the Victorian Attorney-General is aware that this legislation is inconsistent with the government’s obligations under the Charter. He has indicated he has no intention of rectifying this discriminatory practice.
The legislation in this case was passed before the Charter of Rights was legislated into law. Since then further superannuation legislation – Constitution Amendment (Judicial Pensions) Act 2008 (Vic) – has been passed into law and has the same discriminatory provisions as earlier legislation despite being incompatible with the charter and despite being passed into law well after the charter was introduced and despite the legislators being aware of the inconsistency.
Legalised homophobia?
Well it looks like it to me.
Can the government give a rational reason for this discrimination?
All reasons given so far are irrational. Federal legislation passed this year for same sex couples found no need to include such discriminatory provisions in superannuation law and Victorian law has in the past included de-facto relationships without discriminating against those already in receipt of a pension.
Does a Victorian-style Charter of Rights provide protection against discrimination? No, it does not and that was the intention when the bill was drafted.
The Charter is no more than window dressing that, while giving the appearance of recognising citizens’ rights, provides no avenue for citizens to exercise those rights described in the Charter.
The Victorian Government can and does breach the rights it describes as belonging to all Victorians, and it does this without so much as a blush.
