EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 13
FAMILY LAW ACT 1975
FAMILY LAW (SUPERANNUATION) AMENDMENT REGULATIONS 2008 (No. 1)
ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL
Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Part VIIIB of the Act provides for the division of superannuation between parties to a marriage on marriage breakdown or divorce.
The Family Law (Superannuation) Regulations 2001 (the Principal Regulations) contain much of the detail of the legislative scheme for the division of superannuation, including methods for valuing superannuation interests and the prescription of matters required or permitted by Part VIIIB of the Act to be prescribed. In particular, the Principal Regulations prescribe superannuation interests in several specified superannuation schemes as ‘percentage-only interests,’ including interests in the Parliamentary Contributory Superannuation Fund of Queensland (the Queensland Parliamentary Scheme).
The purpose of the Family Law (Superannuation) Amendment Regulations 2008 (No. 1) (the Amendment Regulations) is to reflect successor fund arrangements for percentage-only superannuation interests in the Queensland Parliamentary Scheme.
Percentage-only interests can only be split under the Act on a percentage basis. They are also valued under the Act by expert opinion evidence, rather than in accordance with the valuation methods in the Principal Regulations.
The Queensland Parliamentary Scheme was discontinued by the Superannuation (State Public Sector) Amendment Act 2007 (Qld). Members of the Queensland Legislative Assembly Scheme have had their rights and entitlements to superannuation under the discontinued Queensland Parliamentary Scheme maintained as members in the parliament 70 category under Chapter 9 of the Superannuation (State Public Sector) Deed 1990 (Qld). The Amendment Regulations ensure that these successor fund arrangements are reflected in the Principal Regulations.
The Amendment Regulations refers to the Superannuation (State Public Sector) Deed 1990 (Qld). That Deed may be viewed at the following website:
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SuperStPuSecD90.pdf
The Amendment Regulations also refers to the repealed Parliamentary Contributory Superannuation Act 1970 (Qld) (the repealed Act). That Act may be viewed at the following website:
http://www.legislation.qld.gov.au/LEGISLTN/REPEALED/P/ParliContSupA70_03D_051128.pdf
Copies of the Queensland Deed and the repealed Act may be purchased from the Queensland Government Bookshop, which is located at SDS Express, Ground Floor Mineral House, 41 George Street, Brisbane, Queensland (telephone: 07 3118 6900). The postal address for the Bookshop is Locked Bag 500, Coorparoo, Queensland 4151.
Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Queensland State Actuary and the Queensland Government Superannuation Office, by way of correspondence and discussions.
Overview
The Family Law (Superannuation) Amendment Regulations 2008 (No. 1) were enacted to address the gap created by the discontinuation of the Queensland Parliamentary Contributory Superannuation Fund and its integration into the Queensland Legislative Assembly Scheme under Chapter 9 of the Superannuation (State Public Sector) Deed 1990 (Qld). These regulations amend the Family Law (Superannuation) Regulations 2001 to reflect these successor fund arrangements. The Family Law Act 1975 provides the legislative framework for the division of superannuation interests between parties upon the breakdown of a marriage. The Family Law (Superannuation) Regulations 2001, in turn, provide further detail on the application of this framework, including the classification and valuation of superannuation interests. Given the changes in the Queensland superannuation schemes, these amendments ensure that the regulations continue to accurately reflect the current legal and administrative environment. The objective is to maintain the integrity and effectiveness of the superannuation division process under the Family Law Act.
Scope and Application
The Family Law (Superannuation) Amendment Regulations 2008 (No. 1) applies to the division of superannuation interests, specifically the percentage-only interests, within the context of marriage breakdown or divorce under the Family Law Act 1975. These regulations are pertinent to entities and individuals who have superannuation interests in the Queensland Parliamentary Scheme, which has been succeeded by the parliament 70 category under the Superannuation (State Public Sector) Deed 1990 (Qld). This regulatory instrument ensures that the legislative changes resulting from the discontinuation of the Queensland Parliamentary Scheme are duly reflected in the existing Family Law (Superannuation) Regulations 2001. The Amendment Regulations are framed to align with the legislative requirements stipulated in the Family Law Act 1975 and do not extend beyond what is necessary to implement the changes resulting from the Queensland Government’s successor fund arrangements. The regulations do not include any specific exclusions or exemptions beyond what is mandated by the overarching legislation, and their application is confined to the Commonwealth jurisdiction.
Key Provisions
The Family Law (Superannuation) Amendment Regulations 2008 (No. 1) (Amendment Regulations) modify the Family Law (Superannuation) Regulations 2001 (Principal Regulations) to reflect changes in the Queensland Parliamentary Contributory Superannuation Fund. This legislative update is necessary due to the discontinuation of the Queensland Parliamentary Scheme, as stipulated by the Superannuation (State Public Sector) Amendment Act 2007 (Qld), and the subsequent incorporation of its members’ rights and entitlements into the Superannuation (State Public Sector) Deed 1990 (Qld). These amendments ensure that the Principal Regulations accurately represent the current superannuation arrangements for members of the Queensland Legislative Assembly.
Under the Family Law Act 1975 (the Act), the Governor-General has the authority to issue regulations that are not inconsistent with the Act and that are necessary or convenient for carrying out or giving effect to the Act. Section 125(1) of the Act specifically empowers the creation of these regulations. Part VIIIB of the Act deals with the division of superannuation between parties upon the breakdown of a marriage or divorce. The Amendment Regulations update the Principal Regulations to reflect the changes in the Queensland Parliamentary Scheme, ensuring that the regulatory framework remains current and relevant.
The Amendment Regulations impose specific obligations on parties governed by the Principal Regulations. These obligations include accurately reflecting the successor fund arrangements for percentage-only superannuation interests in the Queensland Parliamentary Scheme. Parties must ensure that their compliance with the Principal Regulations aligns with the updated provisions in the Amendment Regulations. This includes updating any documentation, processes, and systems to reflect the new arrangements.
Breaches of the Family Law (Superannuation) Amendment Regulations 2008 (No. 1) may result in legal consequences. While the Amendment Regulations themselves do not explicitly detail specific offences or penalties, any non-compliance with the Family Law Act 1975 or the Principal Regulations could lead to enforcement actions under the relevant sections of the Act. Potential penalties for non-compliance with the Act include fines and imprisonment, depending on the severity of the breach and the discretion of the court. The Family Law Act 1975 provides for various penalties, including fines up to $21,000 and imprisonment for up to two years for serious breaches.