Section 41A — Sex Discrimination Act 1984: New superannuation fund conditions

(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, marital or relationship status or family responsibilities; 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 or de facto partner 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, marital or relationship status or family responsibilities; (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: (a) discrimination on the ground of a person’s sex is taken to be indirect if paragraph 5(1)(b) or (c) or subsection 5(2) applies to the discrimination; and (b) discrimination on the ground of a person’s marital or relationship status is taken to be indirect if 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.