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Women in the super network

Speech by Moira Scollay, Acting Sex Discrimination Commissioner, at the Hyatt Hotel, Canberra, 12 February 1998

Thank you for asking me to speak at your lunch time seminar. I have been excited by the prospect - as you may be aware, I am doing two jobs at the moment at the Human Rights and Equal Opportunity Commission. One is the job of Privacy Commissioner, my usual job, and the other is acting as the Sex Discrimination Commissioner pending a Government decision about a permanent appointment to that position. Working on these two radically different subject areas is quite fascinating. Every now and again the two subject areas cross paths and I am permitted to view a given subject from two distinct perspectives. I find that challenging and broadening. What is particularly exciting about today is that there are some links between the issues that I am going to talk about which allow me to make remarks from the two differing perspectives.

First I would like to talk about the subject which is probably dearest to your hearts, which is superannuation, and specifically about sex discrimination issues. That discussion will lead us into a discussion of genetic testing, which is becoming increasingly relevant in insurance and superannuation. There are discrimination issues to be considered as well as major privacy ones.

Superannuation and discrimination

There are issues relating to superannuation which have captured the attention of successive Sex Discrimination Commissioners since before the sex discrimination legislation was first enacted in 1984, and I would like to draw your attention to some of these.

Introduction and background

The introduction of compulsory contributory superannuation and the policy shift towards choice in super funds by the current federal government has focused attention on superannuation as never before. From the mid 1980s onward, superannuation has gone from being the prerogative of a small number of workers to becoming a compulsory retirement income strategy for the approximately 80 per cent of workers who earn more than $900 per month.

The policy shift towards self-funded retirement has always held problems for women. Intermittent paid work combined with unpaid caring work, and lower wages on average than men, has always posed problems for women’s economic independence. The lower lifetime earnings of women reduce their capacity to save sufficient income for superannuation to provide for a dignified standard of living in retirement.1  Older women who have historically not had access to superannuation at all are likely to be in a particularly disadvantaged position. The maintenance of social security for the elderly is crucial if women are not to be disadvantaged by the use of superannuation as a retirement income vehicle.

Much of the current approach to superannuation is still structured around an image of an employee as a male breadwinner who works for one employer in full time employment for a continuous period of 30 to 40 years and then moves on to a life of fishing and golf. It’s time to adjust this image. Superannuation is an income related system with tax concessions favouring long-term, high income earners. It is a system that has never been particularly suited to women’s lives.

The Sex Discrimination Unit has been concerned about discrimination in relation to superannuation for many years. In 1993, the Sex Discrimination Commissioner published Guidelines for the Avoidance of Discrimination on the Grounds of Sex, Marital Status or Pregnancy in Relation to Superannuation. These guidelines were supplemented by the publication of further guidelines in 1995. These latter guidelines were produced with the assistance of a taskforce on superannuation formed by the Sex Discrimination Commissioner including key industry and government representatives.

Superannuation and discrimination legislation

Until 1993, the superannuation industry enjoyed a blanket exemption from anti-discrimination legislation. The passage of the Disability Discrimination Act in 1993 brought about limited exemptions, and changes to the Sex Discrimination Act (SDA) which came into effect in July 1994 have limited the freedom to discriminate once enjoyed by the industry.

The exemptions in the SDA currently enjoyed by the super industry were, when legislated, intended to be temporary. Discussions pursued by my predecessor, Sue Walpole, showed a willingness by the superannuation industry to consider issues of discrimination with a view to the eventual removal of exemptions. The pace has moved slowly - Sue used to say it was reminiscent of St Augustine’s plea to God to make him holy ... but not yet.

Discrimination

A woman cannot be discriminated against in superannuation on the basis of sex or marital status ... unless:

The provisions in the SDA relating to superannuation allow both direct and indirect discrimination in the cases outlined above. Direct discrimination occurs when people are treated less favourably on the basis of sex, marital status, pregnancy or potential pregnancy.6  Examples of direct discrimination in super, contrary to the objects of the SDA, include:

Some of these, eg, dowry benefits, actually give women a benefit which is not available to men. Early retirement provisions for women, which may be beneficial to women, may also be a benefit which women cannot afford.

Indirect discrimination occurs when an unequal result is produced by the identical treatment of people. Indirect discrimination is concerned with the effect of a given policy or practice, not its form. Examples of indirect discrimination in super include:

Let’s look at some of the exemptions in the SDA which allow continuing discrimination in super.

Vesting, portability and preservation of benefits

Vesting 11
Vesting is the key area in discriminating between the final benefits received by men and women. While the Superannuation Guarantee legislation provides for immediate 100 per cent vesting of employer contributions, there remain employer-sponsored funds in public and corporate sectors where long vesting periods persist.

While funds allow for no vesting of the employers’ contributions until certain length of service requirements have been fulfilled, women with broken work patterns due to family or carer responsibilities will pay a high price. In recent years there have been improvements in the level of vesting and fully vested employer contributions are the way of the future.

Removal of the exemption for indirect discrimination in vesting would leave superannuation funds open to a complaint of indirect discrimination, in which case a respondent would need to establish that the discrimination was ‘reasonable’ under the SDA.

Portability
Many women work in short term, casual employment for a variety of employers and have difficulty consolidating several small amounts of superannuation. While a number of industry funds make it easier to transfer accrued benefits to another employer when changing jobs and do not charge fees, that has not been the practice in most private schemes. I welcome the federal Government’s intention to require that by 2000 all employees in accumulation funds be able to move their benefits between funds. Increased portability will assist men as well, of course. It is a logical and long overdue response to the changing workforce participation patterns of all Australians.

Preservation
The preservation of benefits has raised problems for women who tend to have small amounts in one or a number of different funds which are eaten away by administrative charges before the preservation requirements are met. To a large extent, the Government’s initiatives to deal with these problems such as facilitating transfer and/or amalgamation of benefits and by providing the option to opt out of super have obviated the need for the exemption by dealing with the problem which led to the indirect discrimination. It is unlikely that indirect discrimination in preservation will be an issue in the future.

Use of actuarial data

Sex is used to differentiate risk groups in superannuation and insurance because according to the industry, statistics indicate that women live longer than men and have different rates of disability. S41A(1) of the SDA provides an exemption for discrimination on the grounds of sex and marital status in superannuation fund conditions where the discrimination is based on actuarial and statistical data from a source on which it is reasonable for the discriminator to rely and where the discrimination is reasonable having regard to the data.

Statistics used generally fall into three categories:

  1. Statistics used to predict mortality risk
  2. Statistics used to predict disability risk
  3. Statistics used to predict the rate of resignation from employment or early retirement.

An example of how actuarial data are used is in annuities. Women, who pay the same for annuities as men, are paid lower benefits, on the basis that women live longer - although, of course, statistical generalisations do not predict how long any individual man or woman might live. A woman investing $50,000 and retiring at age 59 would get $500 less than a man investing the same amount in the first year; $6,000 less over ten years, and $16,000 less over 20 years.12

Interestingly, smoking, diet and exercise levels, which can be linked to particular diseases more associated with men than women, have a major impact on mortality and disability rates but are not usually taken into account in the superannuation context. It could be suggested that they are difficult to monitor in an environment where individual health evidence is rarely monitored. It would seem that age and sex differentials continue to be convenient ways to keep costs down in superannuation, insurance and annuities. It seems inequitable to target the female sex to the exclusion of other factors which may be of equal or greater significance to longevity.

The Senate Select Committee’s Seventeenth report Super and Broken Work Patterns discussed the possibility of removing sex based distinctions in annuity rates. The Committee considered that insurers could, instead of relying on gender-based actuarial or other discriminatory data, establish annuities geared toward particular needs of individuals in the same way that they market any other financial service. It agreed with submissions noting that the age pension does not vary according to sex and that factors such as opportunity costs foregone by women through having a smaller annual return outweighed the proposition that taking account of life expectancy produces equal returns.13

Research is being undertaken into the suitability of sex as a rating factor for mortality and disability in the superannuation and insurance contexts by Association of Superannuation Funds of Australia (ASFA) and the Institute of Actuaries of Australia (IAA). HREOC has been greatly assisted by advice from the IAA about the use of actuarial and statistical data and the rationale for their use. Only broad-based, up to date research, relevant to the Australian situation will provide the basis for deciding whether it is reasonable to continue to rely on sex-based actuarial and statistical data to justify different treatment of men and women in super and insurance.

Complaints

Despite the exemptions on superannuation, there is scope for complaint under the Sex Discrimination Act. We have had about 25 complaints about superannuation over the last three years. Of these, most have been withdrawn, declined or settled. Some seven complaints have gone to public hearing and determination and as yet, none has been upheld. One of these cases has been appealed to the federal court which has remitted the complaint to HREOC on the basis that the Commission’s finding that superannuation was not a ‘service’ under s22 of the SDA was erroneous.14  Another matter to watch concerns whether the ten year rule indirectly discriminates against women. The ‘ten year rule’ in the Commonwealth Public Sector Scheme provides that the employer only matches the amount of the employee’s contribution after ten years’ service is completed. The complainant argues that given broken working patterns of women, women are less likely to reach that period as men and even if they do, they are then unable to access the increased employer contributions for so long a period as men.

Current government initiatives

As part of the 1997-98 federal budget, the Treasurer, the Hon Peter Costello, announced the Government’s intention to provide for greater choice in superannuation for employees. Legislation has been drafted which requires employers to provide a choice of superannuation funds to new employees from 1 July 1998, with existing employees also being given choice by 1 July 2000.

The Treasurer also announced changes in relation to superannuation for low income earners. Legislation is to be introduced allowing employees earning between $450 and $900 a month to choose to opt out of the superannuation system and receive superannuation guarantee charges as immediate wages. The majority of the employees who fall within this category are women in part-time or casual work. Those workers who do opt out will lose the Government matching contribution (3%) and face effective higher tax rates than those workers who earn above $900 a month or those who opt to stay in super. Those workers who decide to opt out need to take into account their higher tax rates and loss of the Government contribution.

The Treasurer’s changes are being complemented by changes to the award superannuation system initiated by the Minister for Workplace Relations and Small Business, the Hon Peter Reith, who introduced legislation in December 1997 to remove superannuation as one of the twenty allowable matters under S89A of the Workplace Relations Act 1996. Passage of these amendments will remove superannuation from federal awards and prevent the Australian Industrial Relations Commission (AIRC) from dealing with disputes about superannuation by arbitration.

The federal Government’s initiatives are intended to free up the administrative burden of super on employers. The provision of greater choice for individual workers in superannuation is concomitant with the responsibility of making an informed choice. Given the concerns of discrimination in the administration of superannuation schemes, and the extraordinary complexity of those issues and of the schemes themselves, there is a major task ahead in informing women as to the terms of schemes and what they should look for in choosing a scheme, or, for low-income women, in deciding whether to opt out.

Work in progress

In preparation for the coming legislation I will be exploring what the Government and superannuation industry are doing to promote understanding among women of the new arrangements. If the information available does not fully meet women’s needs I intend to provide supplementary advice in the form of a brochure or short booklet on superannuation issues, to be timed with the passage of the legislative amendments.

The Sex Discrimination Unit has prepared three draft discussion papers on the current exemptions for superannuation under the SDA. Further work needs to be done on the papers in the light of the federal Government’s superannuation reforms, after which they will be issued to industry organisations as a contribution to the debate and with a view to achieving industry commitment to removal of the exemptions. The papers as they stand deal with:

I would like to spell out my goals for furthering the objectives of the SDA in relation to superannuation:

Genetic testing and sex discrimination

I spoke earlier about the use of actuarial data and sex discrimination. This leads quite neatly to a discussion about discrimination based on the results of genetic testing, which is becoming a big issue in the insurance and superannuation industries, and gives me the opportunity to explore from a sex discrimination perspective and a privacy perspective.

It will fall to me as the Sex Discrimination Commissioner, or my successor, to evaluate in the long term the application of the SDA to the issues surrounding genetic testing. My focus on genetic testing and DNA has to date been from the Privacy perspective, but when I put on my Sex hat I can begin to see what some of the issues might be in store in the future from a women’s perspective.

The discovery of DNA has dramatically changed the world of medicine, both in the treatment and diagnosis of many diseases. DNA research has been internationally organised through the Human Genome Project, a concerted international research effort to map and sequence the approximately 3 billion nucleotide bases comprising the estimated 50,000-80,000 genes on the human chromosomes. The ultimate goal is to find all the genes in the DNA sequence and develop ways to use this information in medicine. Many disease-causing genes have been isolated, and a growing number of tests are now available to detect them. Supporters of the quest for knowledge point to the invaluable new tool for the diagnosis of genetically inherited disease. Critics argue that science is opening Pandora’s box, spilling out a new form of discrimination, one based upon our genes.

There is already evidence from overseas of genetic discrimination occurring in a variety of settings, including discrimination in the contexts of employment and insurance. The advantages to an employer include the opportunity, should it be legal, to screen out job applicants on the basis that they may one day suffer from a particular disease.

The extent to which the capacity for genetic testing in the future will affect women differentially will, I think, be based on a number of factors. First, the increasing scientific emphasis on genetics as an explanatory tool for human disease may in the future de-emphasise social, environmental and psychological explanations. Dr James Dewey, who shared a Nobel Prize for deciphering the structure of DNA and who now directs the National Center for Human Genome Research, claimed that ‘virtually all human afflictions, from cancer to psychological disorders and susceptibility to infection, are rooted in our genes’.15  Genetic explanations hold that a range of identity characteristics are determined and fixed.

One of the basic tenets of anti-discrimination laws is the idea that people should not be treated less favourably on the grounds of characteristics imputed to their race, sex, disability or other particulars. The use of genetics to support a deterministic view of identity can, as has been demonstrated in history, be harnessed to support simplistic and stereotypical understandings in human identity. In a social and economic context in which women, blacks and people with disabilities come off second best, categorisation of everything from PMT to mental illness as predestined, testable and open to social abuse is something we as a community need to debate the implications of. The danger lies not in genetic technology itself but in the belief that genetic differences are real, biological and neutral grounds for different treatment. Under the Sex Discrimination Act, sex discrimination may well be considered ‘reasonably based’ if genetic evidence can be provided in support of it.

This is pertinent in the insurance and superannuation industries. Opportunities for differential treatment of males and females in these industries, made possible by the use of actuarial data, are used most frequently in determining individual life insurance cover, the death and disability components of non-compulsory superannuation funds and, most often, in the calculation of annuities. Any cover which is based on a risk assessment of an individual for the calculation of premiums or benefits results in differential treatment of those individuals. Known demographic sex life-span differences have historically provided the basis for discrimination in the differential treatment of males and females. Where the use of actuarial or statistical data is reasonably based, it is exempt from the discrimination provisions of the Act.

Over the last 20 or 30 years, internationally, the collection of actuarial and medical information on individuals has been getting more sophisticated. Modern collection of more detailed information about life-style or occupation, for instance, through a range of methods, means that it is now possible to make greater separations within actuarial data. We now know who is at risk; there are some occupations that are more dangerous than others and that there are genetic diseases which will shorten life span and lead to high costs of care. We now know, for example, that five per cent of women have a genetic predisposition to a particular form of breast cancer, detectable through genetic testing, and 85 per cent of those women will go on to develop the cancer. The debate about how the insurance and superannuation industry will handle these questions is well-developed internationally and developing in Australia. It remains to be seen what use will be made of information about diseases specific to women, but if actuarial data to date gives us any indication, we may be in for a rough ride.

In my view it will be very difficult to turn the clock back. The potential for predictive accuracy about the future onset of an incurable genetic condition will be hard for the commercially driven insurance industry to resist. The Life, Investment and Superannuation Association of Australia (LISA), Australia’s peak life insurance and superannuation organisation, has stimulated debate by preparing in 1996 a Position Paper on Genetic Testing and Life Insurance. The paper defended the right of insurance companies to have access to existing genetic test results, while stopping short of requiring clients to undergo testing, at this stage.

The second way in which genetic testing will affect women differentially is increasingly in the focus on the foetus in genetic technology. Any genetic information about DNA structures can only be manipulated or altered at the zygote and foetal stages of development, placing women, as the bearers of children, in a position of having to respond to genetic information about the foetus they are carrying in a way that is socially prescribed. To some extent this is already happening. These days women in Australia over 35 who do not have tests in pregnancy for spina bifida, Downs Syndrome and other abnormalities affecting the foetus are exceptions. Where such tests detect abnormalities, the option for termination usually exists. There are cases from the US of women who went ahead with pregnancy knowing that they had genetic conditions which posed a risk for their children. The public disapproval towards them and subsequent discrimination they suffered reflect thinking that people with mutations associated with diseases in their genes should be eliminated.16

In Australia today there is still involuntary sterilisation of young women with intellectual disabilities; we see here an applied notion of genetic screening and a degree of public acceptance of this. In China the one-child policy of family planning has meant that some families go to extremes to ensure that their child quota is male, including abortion of female foetuses. According to last week’s Sydney Morning Herald’s Good Weekend magazine, there are nearly 40 million more males than females in China today.

Finally, the diseases for which it will be possible to test. Currently, DNA tests are available for single gene diseases such as Huntington’s disease which, although ultimately fatal, are rare. DNA screening tests for more common conditions such as heart disease, Alzheimer’s, breast cancer, diabetes and rheumatoid arthritis, all of which have genetic susceptibilities, are being developed and will probably become commercially available within ten years.

Currently there are some female specific, or female predominant, diseases for which tests are already available or are likely to be available soon. These include a particular form of breast cancer, which I have mentioned and some autoimmune diseases such as rheumatoid arthritis which occur mainly in women. There are likely to be lots of others out of the 4,000 or so genetically susceptible diseases that are expected at some time to be testable, that I don’t know about yet.

Genetic privacy

Let me conclude with some remarks about genetic privacy.

The collection and use of genetic information has long been a particularly challenging subject for Privacy and Data Protection Commissioners around the world. Many of my counterparts have written on the subject. In 1996 my office released an information paper The Privacy Implications of Genetics Testing. For the most part the discussion has been in terms of possibilities. However, advances in technology alongside developments in the science of biology and genetics have brought a certain cold reality. The progress of the Human Genome project certainly places a greater urgency on resolving the myriad of associated moral and ethical issues, privacy being one of them. In no way do I wish to stem the contribution of genetics to scientific and medical knowledge. However I am very aware that these can be used as extremely powerful and seductive arguments to justify intrusions into what I consider to be fundamental rights. My concern as a Commissioner of the Human Rights & Equal Opportunity Commission is to ensure that such progress sits alongside consideration of these rights.

One such right is the right to genetic privacy.

I am encouraged to see that at an international level, there is strong concern to ensure that the ethical and legal implications of such scientific progress be enshrined in international instruments. Our own the Hon. Justice Michael Kirby, a strong advocate for privacy and human rights, is currently involved in a number of international bodies on the issue of genetic privacy; in particular the International Bioethics Committee of UNESCO. At a recent Privacy Issues Forum held in New Zealand, Justice Kirby reported on the progress of the group which has prepared a Preliminary Draft for a Universal Declaration on the Human Genome and Human Rights. The draft, which covers a whole range of issues, is expected to give rise to an international treaty with binding obligations. Of particular interest are a number of draft articles dealing with the rights of persons who are the subject of genetic testing, including

Article 7
No one may be subjected to discrimination based on genetic characteristics that is intended to diminish or has the effect of diminishing human dignity or impairing the right to be treated equally.

Article 8
Genetic data associated with a named person and stored or processed for the purpose of research or any other purpose must be held confidential and protected against disclosure to third parties.

These articles, though still in draft form, formalise the importance of genetic privacy as a central human right and recognise the very real potential for discrimination that can result through misuse of such information.

What do I mean by privacy?

The notion of protecting privacy as a fundamental human right is reflected in a number of international instruments, most notably in the International Covenant on Civil and Political Rights.17  Most western industrialised countries, including Australia, have enacted laws to protect the privacy of information of their citizens. While these laws mostly provide protection where personal information is in the hands of the state, in some countries their privacy laws extend to the private sector.

A common basis to these laws is a set of fair information handling principles which have been set out by the OECD in its Guidelines governing the protection of privacy and transborder flows of personal data (1980). Protecting privacy is more than just guaranteeing confidentiality. Allowing for exceptions to address legitimate business and public interests at issue, fair and responsible handling of personal information means:

Is there an absolute right to genetic privacy?

Genetic information poses new challenges for the way we think about protecting privacy. A 1992 Canadian report asserted that "persons should have a reasonable expectation of genetic privacy".18  In particular no person should be subject to mandatory testing which would result in a loss of autonomy and fundamental freedoms.

Yet some commentators question the extent of such expectations. Does the individual have an absolute right to genetic privacy? Dr Tom Wilkie an author and science journalist noted that fundamental laws of nature argue against there being true genetic privacy. The mere fact that we share a percentage of our genes with family members, holds implications for individual rights to that knowledge. He says "... if I wish to know what is written in my own genes, this private knowledge of mine also constitutes partial knowledge of the genes of other individuals, who may be quite remote from me."19

Traditional application of privacy principles have focussed on the privacy rights of the individual. The view has been that I, as the person providing the information about myself, am also the one who may be adversely affected should anyone else misuse my information. The concept of anyone else having a proprietary interest in information about the individual has not ordinarily been addressed by privacy principles.

Family members have traditionally been viewed as third parties to whom access to an individual’s information, in accordance with privacy principles, should only be granted with the consent of that individual. However, that the context of genetic testing accords the family a different status is a policy now recognised by bodies such as the Ethics Committees of the Human Genome Organisation (HUGO), the World Medical Association and Expert Group of the World Health Organisation. This shift recognises the concept of the family in genetic group as being the entity with a right to privacy rather than the individual. The view is "that genetic information should be shared, as a form of familial property, amongst family members who have a legitimate interest in genetic information that affects them."20

To know or not to know ...

Genetic testing raises another new concept to traditional thinking about privacy - the right ‘not to know’. The rights enshrined in privacy principles are premised on the view that the individual has a right to full access to information about them and corresponding policies of full disclosure by record-keepers. Particularly in relation to sensitive medical information, privacy advocates have been keen to ensure that the right to access medical information be enshrined in legislation. The test case Breen v Williams (1996), though unsuccessful in the High Court, sought to establish a common law right of access to medical records.

In some cases the individual who is the subject of genetic testing may not wish to know that they carry a gene which may lead to the development of a serious or fatal illness. The ability for genetic advances to predict late-onset disorders means that "many healthy people live under the sword of Damocles - knowing they are at enhanced risk for later illnesses such as cancer or Alzheimer’s disease."21   For this reason, the ability for the individual being able to exercise informed choice in deciding whether to be informed about genetic results has been recognised by the HUGO International Ethics Committee.

The use of genetic information in a commercial context

As mentioned earlier, the availability of genetic data is of obvious commercial interest to third parties such as insurers and employers, and herein lies the major concern for policy makers. As the technology grows more sophisticated, and the industries move to embrace genetic testing in their risk assessment procedures the potential for discrimination and denial of products and services will become a dangerous reality.

I recognise that it is a difficult argument to sustain in principle, that genetic data should be excluded from risk assessment in insurance. Already questions that seek for example information about your family’s history of heart disease are a crude form of checking genetic predisposition. However I believe that the introduction of a more precise form of establishing genetic predisposition in the insurance industry tips the balance away from an element of risk that is fair to both the individual and the insurer. The tragic outcome is one that Dr Wilkie speaks of, that "[t]hose who have already been discriminated against in the shuffling of the genes passed on to them by their parents would be subject to a second, social and economic discrimination. They could be denied medical insurance, yet they are exactly the people who are going to need as much medical attention as they can get and thus need to be able to pay for it. They could be denied the ability to buy a house, if the loan cannot be secured against a life policy; they could be denied the opportunity of saving up for their own personal pension."22

As a final point, an important element in this whole discussion will be the consent of the individual. International privacy principles say that information should not be disclosed to third parties without the consent of the individual. I am concerned that the lack of legislative controls in industries that seek to use genetic information leaves individuals vulnerable to pressure to "consent". This is indeed the case in Australia, where the federal Privacy Act 1988 which I administer, covers only the public sector and the credit industry. As such there is no general extension to the private sector. As some of you may be aware, I am currently embarked on a process looking at establishing national privacy standards consistent with international best practice to the private sector. To this end, I have developed a set of privacy principles in consultation with a whole range of stakeholders including businesses, consumer groups and Government representatives. I will be launching the principles shortly.

Conclusion

In conclusion, it is not often that I get to combine "sex" with privacy. Today’s invitation has provided me with an interesting opportunity to look at the moral and ethical sides of an issue which I have no doubt will be increasingly dominating your industry in the near future. I trust that, alongside the benefits that genetics testing can bring to your industry, you take into account the associated costs to fundamental human rights and strive to achieve a balance between the two.

Reference notes

1. Brown, C. The Distribution of Private Sector Superannuation Assets by Gender, Age and Salary of Members, Conference Paper 94/2, Retirement Income Modelling Task Force, 1994, pp3-6. The Task Force revealed that on average, male members of superannuation funds had superannuation assets 2.7 times those of women. On average, women superannuation fund members of retirement age (over 55) had less than half the superannuation assets of their male counterparts - in the range $21,000 to $31,000 compared to $50,000 to $67,000. The Task Force’s research is used frequently in relevant literature including in the federal Government’s policy statement on superannuation, Super For All - Security and Flexibility in Retirement, ‘Superannuation for Women’, p11.

2. See Sex Discrimination Act 1984 (SDA) s41A(1)(b)(i)(A) which exempts discrimination where:

  1. 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.

3. See SDA s41A(1)(b)(ii)(A), (B), (C) and (D) which exempt discrimination:

  1. 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 a 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.

4. See SDA s41A(1)(b)(iii)(A), (B), and (C) which exempt discrimination in cases when:

  1. 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 another superannuation fund; or
    (C) the portability of benefits arising directly or indirectly from amounts contributed to another superannuation fund.

5. s41B.

6. SDA ss5(1), 6(1), 7(1) respectively.

7. Superannuation and the Sex Discrimination Act 1984 - Current Status and Future Directions, AGPS, Canberra, 1994, p3.

8. ABS Catalogue 6306.0 Employee Earnings and Hours May 1996. Figures include:

                                % of all Males    % of all Females    % of all Persons

Under $800/month          8.6                         19.4                                 13.6

between $800 and
$1,200/month                  4.5                         11.7                                  7.8

9. Superannuation and the Sex Discrimination Act, op cit pp3-4.

10. A number of insurers require that a minimum number of hours is worked before they will offer disability cover.

11. Vesting determines the length of service before retirement required before super benefits include employer contributions.

12. Legal and General, Annuity Presentation, 28 January 1994, quoted from, Superannuation and the Sex Discrimination Act 1984 - Current Status and Future Directions, HREOC, 1994 p9.

13. Seventeenth Report of the Senate Select Committee on Superannuation, Super and Broken Work Patterns, AGPS, Canberra, Nov 1995, pp80-84.

14. The case, between the Australian Education Union and the State of Tasmania, is about the ‘buying back’ of prior years of discontinuous service for superannuation purposes by female teachers on different terms from male teachers.

15. Mertz, B, & Pines, M. eds Blazing a Genetic Trail, Bethesda, Howard Hughes Medical Institute, 1991, p1

16. One person was denied the right to adopt solely because she was at risk of Huntingdon’s disease. Another couple wanted to go ahead with a pregnancy after the foetus was tested positive for mutations associated with cystic fibrosis although they already had one child with cystic fibrosis. The couple had to threaten to take legal action to stop the withdrawal or limiting of health care for the pregnancy, post partum and paediatric care by their health insurance provider. Another example is on a television newswoman who had ectrodactyle, a condition which results in the absence of some terminal digits. When she chose to have a child despite the risk, she was criticised for it by a Los Angeles talk show host.

17. The Universal Declaration of Human Rights, Article 12; International Covenant on Civil and Political Rights, Article 17.1; European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 8.

18. Privacy Commissioner of Canada (1992) Genetic Testing and Privacy, Ontario; p.31.

19. Wilkie, Dr Tom (1993) "Who should know what is written in my genes?" Talk given at the XVTH International Conference of Data Protection and Privacy Commissioners, Manchester, 28 September 1993.

20. Knoppers, B N (1996) "Privacy, Confidentiality and Genetic Information" quoted in Kirby, the Hon Justice Michael "Looking Backwards - Looking Forward" paper delivered to Fourth Privacy Issues Forum, Auckland NZ, 10 July 1997.

21. "Whose body is it anyway? The Weekend Australian Feb 7-8 1998, p.25.

22. Ibid, p.10.

Last updated 1 December 2001