2003
2003
2011-07-08
act
government
publicspecial
act.reprint
act-2011-027
partuncommenced
retroactivecommencements
2003-11-12
2003-11-12
0
2003
none
act-2003-077
00bcbb6b-b81c-425c-b106-d95cae1df050
2b14c8e5-47a7-43f2-a0c8-e064ad315353
An Act to amend various superannuation Acts to
accommodate Commonwealth legislation relating to the division of
superannuation entitlements on marriage breakdown, to extend benefits to de
facto partners in certain schemes and to update pension adjustment provisions;
and for other purposes.
1Name of
Act
This Act is the Superannuation
Legislation Amendment (Family Law) Act
2003.
2Commencement
(1)
This Act commences on the date of assent to this
Act, except as provided by subsections (2) and (3).
(2)
Schedules 1 [2]–[4], 2, 5, 6, 7, 10, 11 and
12 commence on a day or days to be proclaimed.
(3)
Schedule 13 [2] is taken to have commenced on 29
November 2002.
3Amendment of Acts and
Regulation
The Acts and Regulation specified in Schedules
1–13 are amended as set out in those Schedules.
Schedule 1
sch 1: Am 2005 No 64,
Sch 3. Rep 2011 No 27, Sch 4.
Schedule 2Amendment of Judges’ Pensions Act 1953 No
41
(Section 3)
[1]Section 2
Definitions
Insert after section 2 (2):
(3)
Notes included in this Act do not form part of
this Act.
[2]Part 3A
Insert after Part 3:
Part 3AProvisions relating to family
law superannuation legislation
15ADefinitions
In this Part:
complying
superannuation fund means:
(a)
a regulated superannuation fund under the Superannuation
Industry (Supervision) Act 1993 of the Commonwealth,
or
(b)
the First State Superannuation
Fund.
family
law superannuation entitlement has the same meaning as it
has in section 15C (2) (a).
family
law superannuation legislation means Part VIIIB of the
Family
Law Act 1975 of the Commonwealth and the Family
Law (Superannuation) Regulations 2001 of the
Commonwealth.
family
law superannuation payment means an amount payable under
this Part to or in respect of a non-member spouse.
First
State Superannuation Fund has the same meaning as Fund has in the First
State Superannuation Act 1992.
flag
lifting agreement has the same meaning as it has in Part
VIIIB of the Family Law Act 1975 of the
Commonwealth.
FTC has the same meaning as in the
First State Superannuation Act
1992.
member
spouse, in relation to a superannuation interest under this
Act, means the spouse who has the superannuation interest.
non-member spouse, in relation to a
superannuation interest under this Act, means the spouse who is not the member
spouse in relation to that interest.
payment
split has the same meaning as it has in Part VIIIB of the
Family
Law Act 1975 of the Commonwealth.
RSA means a retirement savings
account within the meaning of the Retirement Savings Accounts Act
1997 of the Commonwealth.
splitting
order has the same meaning as it has in Part VIIIB of the
Family
Law Act 1975 of the Commonwealth.
spouse of a person means a person
who is or was married to that person.
superannuation agreement has the
same meaning as it has in Part VIIIB of the Family Law Act
1975 of the Commonwealth.
superannuation interest means an
interest that a judge, retired judge or any other person has as a member or a
beneficiary of the superannuation scheme established under this
Act.
15BPayment of benefits where
superannuation interests affected by flagging order or payment
split
Nothing in this Act:
(a)
requires the payment of a benefit or any other
payment under this Act, to the extent that any such payment would contravene
provisions of the family law superannuation legislation or any order or
agreement made under that legislation, or
(b)
prevents the payment or reduction of a benefit or
any other payment, to the extent that the payment or reduction is required to
be made, or results from a requirement, under the family law superannuation
legislation or any order or agreement made under that
legislation.
15CPayment
splits
(1)
The object of this section is to facilitate
arrangements for payment splits under the family law superannuation
legislation and to provide for family law superannuation payments to or in
respect of non-member spouses for the purposes of satisfying the requirements
of Division 2.2 of Part 2 of the Family Law (Superannuation)
Regulations 2001 of the Commonwealth.
Note—
The effect of satisfying those requirements is
that payments to the member spouse of a benefit under this Act will be no
longer liable to be split for the purposes of the family law superannuation
legislation.
(2)
A non-member spouse has a family law
superannuation entitlement to which this section applies if:
(a)
the non-member spouse has an entitlement, that is
operative, to be paid an amount under a superannuation agreement, flag lifting
agreement or splitting order in respect of a superannuation interest of a
member spouse (a family
law superannuation entitlement), and
(b)
the member spouse is in receipt of a pension, or
is eligible to be paid a lump sum benefit, under this Act,
and
(c)
the family law superannuation entitlement has not
been paid to the non-member spouse by the member spouse, or waived by the
non-member spouse, in accordance with the family law superannuation
legislation.
(3)
On written notice by a member spouse or a
non-member spouse, or by any other person or court, of a family law
superannuation entitlement of a non-member spouse to which this section
applies, the Minister must take one of the following actions:
(a)
pay or release to the non-member spouse an
amount, of the value of the family law superannuation entitlement (less any
costs chargeable),
(b)
transfer or rollover to a complying
superannuation fund or an RSA nominated by the non-member spouse an amount, of
the value of the family law superannuation entitlement (less any costs
chargeable), to be held for the benefit of the non-member
spouse.
(4)
The Minister may take the action set out in
subsection (3) (a) only if the member spouse is in receipt of a pension under
this Act or the non-member spouse has satisfied a condition for payment or
release of a benefit of a kind that would entitle a person to payment of a
benefit if the Fund were a complying superannuation
fund.
(5)
The Minister must transfer a family law
superannuation payment to FTC for crediting to the First State Superannuation
Fund if:
(a)
the payment is not payable under subsection (3)
(a), and
(b)
a non-member spouse fails, within the period
prescribed by the regulations, to make a nomination for the purposes of
subsection (3) (b) or a nominated fund or RSA does not accept the
nomination.
(6)
For the purposes of this section, the value of a
family law superannuation entitlement or a family law superannuation payment
of a non-member spouse is to be determined in accordance with any applicable
provisions of the regulations and the family law superannuation
legislation.
15DReduction of benefits of
member spouses
(1)
The Minister may reduce the amount of any benefit
payable under this Act to or in respect of a member spouse (or a spouse or de
facto partner of a member spouse) if a family law superannuation entitlement
is paid or payable to or in respect of the non-member spouse under the family
law superannuation legislation or this Part or the
regulations.
(2)
A preserved or deferred benefit may be reduced
under this section.
(3)
A pension may be reduced under this section even
though payment of the pension first commenced before the payment of the amount
to or in respect of the non-member spouse.
(4)
The benefit is to be reduced in accordance with
the regulations and any applicable provisions of the family law superannuation
legislation.
15EAccrued benefit
multiples
(1)
For the purposes of the family law superannuation
legislation, the accrued benefit multiple of a member spouse is the period (in
years and parts of years) that the member spouse served as a judge in the
judicial office (including any prior judicial service within the meaning of
section 8) that he or she held immediately before becoming eligible for
payment of a pension or a lump sum benefit.
Note—
Under the family law superannuation legislation,
the accrued benefit multiple is a factor used to determine the amount payable
to a non-member spouse who becomes entitled to a
payment.
(2)
In the case of a member spouse who is the widow
or widower of a former judge, the accrued benefit multiple is the same as the
accrued benefit multiple for the former judge.
15FRegulations
Regulations may be made for or with respect to
the following matters:
(a)
elections by non-member spouses for payment of
family law superannuation entitlements,
(b)
the persons or bodies to whom a family law
superannuation payment under section 15C or a payment referred to in paragraph
(i) may be paid,
(c)
the composition of payments made for the purposes
of the family law superannuation legislation or this Part, having regard to
the composition of the member spouse’s superannuation interest under
this Act before the payment is paid,
(d)
the payment of fees for or with respect to family
law superannuation payments,
(e)
notice of family law superannuation entitlements
and payment splits,
(f)
the periods for payment of family law
superannuation payments,
(g)
the calculation of payments and entitlements for
the purposes of the family law superannuation legislation or this Part
(including payments under paragraph (i)),
(h)
the calculation of the value of superannuation
interests of member spouses for the purposes of the family law superannuation
legislation or this Part,
(i)
additional circumstances in which an offer may be
made, and payment may be made, to a non-member spouse where a superannuation
interest is subject to a payment split,
(j)
the charging of, and payment from, the
Consolidated Fund of a payment made in the circumstances prescribed under
paragraph (i),
(k)
the reduction of benefits (including deferred or
preserved benefits) payable to or in respect of member spouses, or spouses or
de facto partners of member spouses, as a consequence of payments under the
family law superannuation legislation or this Part,
(l)
without limiting paragraph (k), the commutation
of pensions or parts of pensions for the purposes of the reduction of benefits
as a consequence of payments under the family law superannuation legislation
or this Part.
[3]Section 16 Payment to legal
personal representative in certain cases
Insert “or family law superannuation
payment within the meaning of Part 3A” after
“benefit”.
[4]Section 16A Accrued benefit
multiples for family law superannuation purposes
Omit the section.
[5]Schedule 1 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Superannuation
Legislation Amendment (Family Law) Act 2003 (but only to
the extent that it amends this Act)
sch 2: Am 2011 No 27,
Sch 3.13.
sch 3: Rep 2005 No
64, Sch 3.
sch 4: Rep 2005 No
64, Sch 3.
schs 5–7: Rep
2011 No 27, Sch 4.
sch 8: Rep 2005 No
64, Sch 3.
sch 9: Rep 2005 No
64, Sch 3.
schs 10–12: Rep
2011 No 27, Sch 4.
sch 13: Rep 2005 No
64, Sch 3.
Schedules 3–13
Historical
notes
Table of amending
instruments
Superannuation
Legislation Amendment (Family Law) Act 2003 No 77. Second
reading speech made: Legislative Assembly, 12.11.2003; Legislative Council,
18.11.2003. Assented to 25.11.2003. Date of commencement, except Schs 1
[2]–[4], 2, 5–7, 10–12 and 13 [2], assent, sec 2 (1); Sch 1
[2] and [4] were not commenced and the Sch was repealed by the Statute Law (Miscellaneous Provisions) Act
2011; date of commencement of Sch 2: not in force; date of
commencement of Sch 5, 3.3.2011, sec 2 (2) and 2011 (122) LW 3.3.2011; date of
commencement of Schs 6, 7 and 10–12, 19.12.2008, sec 2 (2) and GG No 158
of 19.12.2008, p 12310; date of commencement of Sch 13 [2], 29.11.2002, sec 2
(3). This Act has been amended as follows:
2005
No
64
Statute Law
(Miscellaneous Provisions) Act 2005. Assented to
1.7.2005.
Date of commencement of Sch 3, assent, sec 2
(1).
2011
No
27
Statute Law
(Miscellaneous Provisions) Act 2011. Assented to
27.6.2011.
Date of commencement of Schs 3 and 4, 8.7.2011, sec 2
(2).
Table of
amendments
Sch
1
Am 2005 No
64, Sch 3. Rep 2011 No 27, Sch 4.
Sch
2
Am 2011 No
27, Sch 3.13.
Schs 3,
4
Rep 2005 No
64, Sch 3.
Schs
5–7
Rep 2011 No
27, Sch 4.
Schs 8,
9
Rep 2005 No
64, Sch 3.
Schs
10–12
Rep 2011 No
27, Sch 4.
Sch
13
Rep 2005 No
64, Sch 3.