EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 321
Issued By The Authority Of The Attorney-General
Family Law Act 1975
Family Law (Superannuation) Amendment Regulations 2009 (No.2)
Subsection 125(1) of the Family Law Act 1975 (FLA) provides, in part, that the
Governor-General may make regulations, not inconsistent with the FLA, prescribing all matters required or permitted by the FLA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the FLA.
Part VIIIB of the FLA provides for the division of superannuation between married and de facto couples on relationship breakdown.
The purpose of the Regulations is to make minor amendments to the Family Law (Superannuation) Regulations 2001 (the Principal Regulations) to reflect the replacement of the Australian Industrial Relations Commission (AIRC) by Fair Work Australia from 31 December 2009. The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 continued the existence of the AIRC until that date.
The Regulations commence on 31 December 2009, the date that Fair Work Australia replaces the AIRC.
Details of the Regulations are as follows:
Regulation 1 – Name of Regulations
Regulation 1 provides that the name of the Regulations is the Family Law (Superannuation) Amendment Regulations 2009 (No.2).
Regulation 2 – Commencement
Regulation 2 provides for the Regulations to commence on 31 December 2009.
Regulation 3 – Amendment of the Family Law (Superannuation) Amendment Regulations 2001
Regulation 3 provides that the Principal Regulations are amended as set out in Schedule 1.
Schedule 1 – Amendments
Item [1]: Paragraph 10(2)(a)
Item 1 amends paragraph 10(2)(a) of the Principal Regulations to identify the General Manager of Fair Work Australia as the trustee, for the purposes of Part VIIIB of the FLA, of the pension scheme under the Judges’ Pensions Act 1968 (the Judges’ Pensions Act scheme) in relation to particular members of that scheme.
Those members are a person who is the President or a former President of Fair Work Australia, a Deputy President or a former Deputy President of Fair Work Australia who was a Presidential Member of the AIRC or a former Presidential Member of the AIRC, or who is the spouse or a former spouse or former de facto spouse of such a person.
Item [2]: Subregulation 10(6)
Item 2 amends subregulation 10(6) of the Principal Regulations to omit the definition of “Industrial Registrar”. The amendment is consequential to the amendment made by item 1 to paragraph 10(2)(a). Until that amendment, paragraph 10(2)(a) of the Principal Regulations identified the Industrial Registrar of the AIRC as the trustee, for the purposes of Part VIIIB of the FLA, in relation to a member of the Judges’ Pensions Act scheme who is a Presidential Member of the AIRC.
Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Department of Education, Employment and Workplace Relations. The consultation involved exchange of correspondence and discussions.
Overview
The Family Law (Superannuation) Amendment Regulations 2009 (No.2) were enacted to address the transition from the Australian Industrial Relations Commission (AIRC) to Fair Work Australia, ensuring that relevant provisions of the Family Law Act 1975 remain effective in the new regulatory environment. This legislation was introduced by the Australian Government and aims to maintain the integrity and functionality of the family law framework concerning superannuation division in light of the structural changes in industrial relations governance. The Regulations were designed to reflect the replacement of the AIRC by Fair Work Australia, effective from 31 December 2009, and were issued under the authority of the Attorney-General to ensure consistency with the Family Law Act.
Scope and Application
The Family Law (Superannuation) Amendment Regulations 2009 (No.2) amends the Family Law (Superannuation) Regulations 2001 to reflect the transition from the Australian Industrial Relations Commission (AIRC) to Fair Work Australia. These regulations apply to all superannuation interests of married and de facto couples who are subject to the Family Law Act 1975, specifically addressing the division of superannuation on relationship breakdown as outlined in Part VIIIB of the FLA. The Regulations identify the General Manager of Fair Work Australia as the trustee for certain members of the Judges’ Pensions Act scheme, including current and former Presidents and Deputy Presidents of Fair Work Australia, as well as their spouses or former spouses. The changes also involve the removal of the definition of "Industrial Registrar" from subregulation 10(6), a consequence of the new trustee identification. These Regulations came into effect on 31 December 2009, the date when Fair Work Australia officially replaced the AIRC.
Key Provisions
The Family Law (Superannuation) Amendment Regulations 2009 (No.2) amend the Family Law (Superannuation) Regulations 2001 to reflect the transition of responsibilities from the Australian Industrial Relations Commission (AIRC) to Fair Work Australia, effective from 31 December 2009. Regulation 1 names the Regulations as such, while Regulation 2 specifies their commencement date. Regulation 3 then outlines the amendments made to the Principal Regulations, as detailed in Schedule 1. The key amendments involve identifying the General Manager of Fair Work Australia as the trustee for specific members of the Judges' Pensions Act scheme, as stated in Item [1] of Schedule 1. This change replaces the previous role of the Industrial Registrar of the AIRC as outlined in Item [2] of Schedule 1.
These Regulations impose specific obligations on parties involved in the administration and division of superannuation under the Family Law Act 1975 (FLA). The most notable obligation is the designation of the General Manager of Fair Work Australia as the trustee for certain members of the Judges' Pensions Act scheme, thereby ensuring that the transition of responsibilities is smoothly implemented. This change necessitates that all relevant parties adjust their practices to recognise the new trustee role, ensuring compliance with the updated regulations.
Failure to comply with the provisions of the Family Law (Superannuation) Amendment Regulations 2009 (No.2) may result in legal consequences. While the specific offences and penalties are not detailed within the explanatory statement, it is implied that breaches of the FLA or its associated regulations could lead to civil or criminal penalties. These penalties could include fines or other sanctions, depending on the nature and severity of the breach. It is essential for all parties involved to understand and adhere to the requirements set forth in these Regulations to avoid any potential legal repercussions.