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A The Purpose of Superannuation
In Australia, the ‘three pillar’ approach22 has been taken to retirement incomes policy comprising means tested publicly funded social security, privately funded compulsory superannuation savings and voluntary superannuation savings. Retirement incomes policy aims to reserve publicly funded social security for the population most in need.23 The means tested age pension provides a basic payment, together with concessions, which is meant to provide modest support at just above the poverty level.24 However, retirement incomes policy promotes self support in retirement by way of occupationally linked privately funded superannuation. Mandatory contributions to superannuation are made in respect of most employees under the employer superannuation guarantee scheme. 25 Also voluntary contributions are encouraged by both employers and employees and taxation concessions provide the incentive. Superannuation not only provides retirement benefits but can also provide death and disablement benefits.26 Superannuation policy aims to achieve a more financially comfortable retirement than that afforded by the age pension alone.27 Ideally, superannuation accumulated over a long working life provides the most comfortable financial support in retirement. However, if superannuation at retirement is inadequate it may be supplemented by an entitlement to social security. Indeed concern has been expressed that insufficient superannuation may do little more than reduce the age pension entitlement thus benefiting the public purse rather than the superannuitant.28
Additionally superannuation provides an important source of funds for government capital.29 Thus superannuation has the potential to provide benefits that are more valuable than social security and can be supplemented by the state in appropriate cases. However, those who are not engaged in conventional forms of long term full time paid employment, most frequently women, have been and can still be excluded from this potentially valuable type of retirement provision.30
B Early Experience — Access of Women to Superannuation
Historically, the concept of superannuation commenced in a simple way. Employees received a payment, generally a lump sum, at the conclusion of a period of employment as a reward for their service. The lump sum could be disposed of at the behest of the recipient and was not required to be preserved for retirement. It was ‘… a voluntary reward on the part of the
22 World Bank, Averting the Old Age Crisis: Policies to Protect the Old and Promote Growth (Oxford
University Press, 1994), xiv, 15–16 provided the source of this model.
23 Anne McDiarmid, ‘Taxation of Superannuation and Disposable Income in Retirement’ (Paper presented at
the Women and Superannuation Seminar, Canberra, 24–25 February 1994) 3.
24
Ross Clare, ‘The Age Pension, Superannuation and Australian Retirement Incomes’ (Research Paper, ASFA Research and Resource Centre, December 2008) 4–6, 10.
25 Superannuation Guarantee Charge Act 1992 (Cth) (‘SGCA’) and related legislation. 26 Family Law Council, ‘Choices’ (Paper on Superannuation, Family Law Council, 1992) 3. 27
Anne McDiarmid, above n 20, 3.
28 Diana Olsberg, ‘Women and Superannuation: Still MS…ing Out’ (2004) 53 Journal of Australian Political Economy 162, 164.
29 Miranda Stewart, ‘ “Are you Two Interdependent?” Family, Property and Same-Sex Couples in Australia’s
Superannuation Regime’ (2006) 28 Sydney Law Review 437, 470.
30 See generally Therese MacDermott, ‘Linking Gender and Superannuation’ (1997) 2 International Journal of Discrimination and the Law 271, 287–92.
employer for loyal service on the part of the deserving employee.’31 Superannuation was occupationally linked and usually confined to professional, managerial or public service areas of employment.32 Superannuation favoured long serving employees because of lengthy vesting scales.33
However, direct and indirect forms of discrimination against women proliferated and women were excluded from many superannuation schemes.34 As recently as the late 1960s, women commonly faced an employment bar upon marriage.35 If they married they were often expected to retire from employment and also from any superannuation scheme membership if they were fortunate enough to have it. Even where women were provided with the option of contributing to superannuation they commonly declined, especially if separated or divorced, because the cost of the contributions competed with immediate financial needs.36 Therefore the design of early superannuation schemes reflected the times and contemplated the income earner as a married male income earner with dependent wife and children.37 Women were not within the contemplation of these schemes as it was assumed that women would be dependent upon and supported by men.38
Some employers paid a ‘marriage dowry’ sum to women leaving work to marry and, if they did not marry, enabled women to receive a small ‘dowry-type’ of benefit upon retirement.39 Some schemes provided benefits to dependent women and children after the death of the member.40 However, they did not and still do not allow divorced spouses to benefit from superannuation after the death of a member spouse because they are not categorised as dependents.41 Nonetheless, a subsequent spouse could obtain such a benefit thereby profiting from the efforts of the former spouse.42
Furthermore, women were expected to retire at an earlier age than men43 which, when coupled with their interrupted work patterns and lower earning capacity, aggravated the problem of accumulating adequate superannuation for their own retirement needs. As women tend to live longer than men, it was, and continues to be, an important concern that they have lower participation rates and smaller interests. This situation was exacerbated for single and separated women without the support of a partner’s superannuation in retirement. Women without male support generally required the support of social security upon retirement.44
31
Human Rights Commission, ‘Superannuation and Insurance and the Sex Discrimination Act 1984: Part I — Superannuation’ (Report No 19, HRC, October 1986) 12 (‘Superannuation and Insurance Report’).
32 Ross Clare, ‘Superannuation and Contemporary Families — Issues of Dependence, Interdependence, and
Self Reliance’ (Paper presented at the Families Matter 9th Australian Institute of Family Studies Conference, Melbourne, 9–11 February 2005) 1.
33 Ibid.
34 Rhonda Sharp and Ray Broomhill, Short Changed: Women and Economic Policies (Allen & Unwin, 1988)
135.
35 Ibid. See, eg, Larmar & Larmar [2005] FamCA 132 [11] (‘Larmar’) where the wife was required to retire
from her employment with the Commonwealth Government upon her marriage.
36 Linda Rosenman and Sharon Winocur, ‘Australian Women and Economic Security’ (Research Report,
University of Queensland, January 1989) 35.
37 Sharp and Broomhill, above n 34, 137. 38
Mary Owen, ‘Superannuation was not Meant for Women’ (1984) 56(4) Australian Quarterly 363, 366.
39 Ibid 367. See generally, Clare ‘Women and Superannuation’, above n 5, 29–30. 40 Owen, above n 38, 366. 41 Ibid 367–8. 42 Ibid 368. 43 Ibid 363. 44 Ibid 367.
As a result of women retiring earlier than men and living longer than men they constituted the majority of the retired population45 and the majority of age pension recipients.46 The lower levels of superannuation resulted in a greater reliance upon the government system of welfare which provided little more than subsistence support rather than a comfortable retirement.47 This gender disparity began to be the subject of research, review and reform in the public sphere. The value of encouraging and retaining women in the workforce was increasingly recognised and constituted a significant shift away from the view of women as dependents. Government policy began to focus on superannuation as a result of the realisation that the aging population profile necessitated greater private provision for retirement. 48 The government policy objectives were to have compulsory superannuation savings, to encourage voluntary superannuation savings by way of taxation concessions and to retain the means tested age pension, an unfunded retirement income system financed from government revenue, as a safety net.49 The aim was not only to encourage individual responsibility for retirement but also to advance a higher standard of living in retirement than that afforded by the aged pension alone.50 This required greater participation in the workforce by women, whether or not married or raising children.
C Sex Discrimination and Superannuation
Thus historically women had difficulty accessing and retaining superannuation and also accumulated less superannuation than men. In 1991 the Federal Sex Discrimination Commissioner Quentin Bryce stated the problem clearly:
The most obvious and plainest sign of sex discrimination in Australia is the earnings gap between men and women workers. This earnings gap in paid employment is also an earnings gap in superannuation, because superannuation is related to your earnings. Other things being equal, the more you earn, the more you will receive in superannuation. The less you earn, the less you will receive. And women do earn much less than men.51
The objects of the Sex Discrimination Act 1984 (Cth) (‘SDA’) include the promotion of equality of men and women and the elimination of various forms of discrimination on the grounds of gender, marital status and actual or potential pregnancy in relation to work and the provision of services.52 However, originally the SDA provided an unlimited exemption from the anti discrimination provisions in relation to superannuation. This was envisaged to be temporary for a period of two years.53 The reason for the exemption was due to the complexity of the superannuation industry, its interface with the insurance industry and its reliance upon actuarial information.
45 Rosenman and Winocur, above n 36, iii, 1. See Australian Bureau of Statistics, 6361.0 — Employment Arrangements, Retirement and Superannuation, Australia, April to July 2007, 10 — women still tend to
retire earlier than men.
46
Owen, above n 38, 363, Clare, ‘Women and Superannuation’, above n 5, 11.
47 Owen, above n 38, 363.
48 Pru Goward, ‘Women and Savings’ (Speech delivered at the ASFA 2004 National Conference and Super
Expo, Adelaide, 11 November 2004) 2.
49
David de Vaus et al, above n 5, 10.
50 Anne McDiarmid, above n 23, 3.
51 Quentin Bryce, ‘Women and Superannuation’ (Paper presented at the ‘Superwoman’ — Women and
Superannuation Conference, Sydney, 16 August 1991) 6.
52
SDA s 3.
53 Superannuation and Insurance Report, above n 31, 39 [72]; Super and Broken Work Patterns Report, above
The recommendations for reform of this position made in the 1986 Report of the Human Rights Commission54 were subsequently embodied to a limited extent in 1991 by the inclusion of ss 41A and 41B in the SDA.55 The amendments removed the previous total exemption of superannuation funds from the anti-discrimination provisions. Currently both direct and indirect discrimination by superannuation fund conditions on the grounds of a person’s sex is prohibited by the amendments. However there are exemptions from this prohibition that are significant for women.56 These exemptions continue to permit indirect sex discrimination in superannuation fund conditions in relation to the vesting, preservation and portability of benefits. Historically these areas of sex discrimination have had a significant impact upon the ability of women to accumulate adequate superannuation.57 Long qualifying periods before attaining membership of superannuation funds and minimum service periods before the vesting of the employer contribution were requirements that operated against women because of their broken work patterns.58 The lack of portability of superannuation meant that multiple small interests, each subject to administrative costs, could not be consolidated thus eroding their value and impeding the benefits of compounding. Coupled with the absence of preservation requirements, the result was that women in short term employment tended to cash in their superannuation upon resignation. The amount paid did not generally include the employer component or a proper return by way of accumulated interest, a result beneficial to the other long term employees and their beneficiaries.59 It was noted by Sharp and Broomhill in 1988 that preservation, portability and full vesting of benefits were all necessary to ameliorate the disadvantageous position of women in the public sphere.60
In 1997 MacDermott noted that, although the obvious forms of discrimination had been dealt with, ongoing forms of discrimination were still permitted.61 The status of the anti- discrimination legislation vis-à-vis superannuation was summarised thus:
the first generational equality issue of mere access to superannuation has largely been dealt with, but … the substantive equality issue of the ultimate benefit derived from superannuation schemes is still to be addressed. The application of the notion of formal equality to superannuation barely touches on the myriad of discriminatory practices that arise in this context.62
Thus the inferior position of women in relation to the accumulation of superannuation had in part been sanctioned by legislation designed to proscribe it. In 2004 Olsberg opined that ‘despite the removal of explicit discrimination which previously disadvantaged female employees in their access to employer funded superannuation Australian women are still ‘MS…ing Out’ when it comes to ‘adequacy and equity’ in superannuation.’63
Despite the 1995 report of the Senate Select Committee on Superannuation recommending that the exemptions in relation to vesting, preservation and portability be removed by the end
54 See Superannuation and Insurance Report, above n 31, 114–19. 55
Sex Discrimination Amendment Act 1991 (Cth) ss 1, 2 (assented to on 25 July 1991 and commenced operation two years later).
56 See generally Bryce, above n 51, 10, 23.
57 SDA ss 41A(1)(b)(iii), 41B(6). See generally, MacDermott, above n 30, 283–5; Clare, ‘Women and
Superannuation’, above n 5, 24–8.
58 Bryce, above n 51, 13; Millbank, above n 6, 107–8. 59 Sharp and Broomhill, above n 34, 134.
60 Ibid 137–40. 61
MacDermott, above n 30, 284–5.
62 Ibid 287.
of March 1997 and the superannuation legislation amended to provide for immediate vesting of all employer contributions,64 to date the exemptions have not been removed.
Nevertheless, although the SDA continues to sanction discrimination against women in this context, changes have occurred including in the areas of vesting, portability and preservation. Ironically the SDA has yet to catch up with these developments.