EXPLANATORY STATEMENT
FAMILY LAW (SUPERANNUATION) (METHODS AND FACTORS FOR VALUING PARTICULAR SUPERANNUATION INTERESTS) AMENDMENT APPROVAL 2008 (No. 3)
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
In this instrument, the Attorney-General, under regulation 38 of the Family Law (Superannuation) Regulations 2001 (the Regulations), approves in writing, for the purpose of the provisions of the Family Law Act 1975 (the Act) allowing superannuation to be split on marriage breakdown, methods for determining the gross value of superannuation interests providing for the payment, on resignation or retirement from office, of pensions to:
- Judges and Masters of the Supreme Court and the County Court of Victoria
- the Governor of Victoria
- the Chief Magistrate of the Magistrates’ Court of Victoria
- the Solicitor-General for Victoria
- the Director of Public Prosecutions for Victoria, and
- the Chief Crown Prosecutor for Victoria.
The gross value is one element in the determination of an amount which is taken to be the value of superannuation in property settlement proceedings under the Act.
The methods provide for a modification of the method which applies under the Regulations for valuing a defined benefit superannuation interest relating to a person’s current employment, which assumes a retirement age of 65 years and an even accrual of benefits from the time of commencement of employment until that retirement age.
The modifications, in the case of Judges and Masters, provide for a retirement age, depending on their date of appointment, of 70 or 72 years and an even accrual of benefits from commencement of service in office until the time the Judge or Master could retire with a pension entitlement.
In the case of the Governor, the modification provides for a retirement age as the person’s age at the end of the period he or she has agreed to act as Governor. The method also assumes an even accrual of benefits over that period.
In the case of the Solicitor-General, the Director of Public Prosecutions and Chief Crown Prosecutor, the modifications provides for a retirement age as the later of:
- the age of the person at the time of expiry of his or her term of office as Solicitor-General, the Director of Public Prosecutions or Chief Crown Prosecutor, and
- 65 years.
The methods also assume an even accrual of benefits from commencement of service in office until the office holder could retire with a pension entitlement.
The instrument incorporates by reference:
- the Constitution Act 1975 (Vic.) containing, within Parts I, III and IIIA respectively, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Governor of Victoria (Part I), a Judge of the Supreme Court of Victoria (Part III) and the Director of Public Prosecutions (Part IIIA)
- the County Court Act 1958 (Vic.) containing, within Part I Divisions 3 and 3A respectively, the provisions for the payment of pension benefits, on resignation or retirement from office, of a Judge of the County Court of Victoria (Part I Division 3) or a master of that court (Part I Division 3A)
- the Supreme Court Act 1986 (Vic.) containing, within Part 7 Division 1, the provisions for the payment of pension benefits, on resignation or retirement from office, of a Master of the Supreme Court of Victoria
- the Magistrates’ Court Act 1989 (Vic.) containing, within Part 2, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Chief Magistrate of the Magistrates’ Court of Victoria
- the Attorney-General and Solicitor-General Act 1972 (Vic.) containing, in section 6, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Solicitor-General, and
- the Public Prosecutions Act 1994 (Vic.) containing, in section 18, the provisions for the payment of pension benefits, on resignation or retirement from office, of the Chief Crown Prosecutor.
These Acts can be viewed at the following website:
http://www.dms.dpc.vic.gov.au/
Copies of the Acts may also be purchased from Information Victoria, at Ground Level, 505 Little Collins Street, Melbourne, Victoria 3000 (telephone: 1300 366 356) or through the following website:
http://www.bookshop.vic.gov.au/
Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Victorian Department of Justice, and with Mercers Human Resource Consulting, who were engaged by that Department to advise in relation to the methods that have been approved, by way of exchange of correspondence and discussions. In addition, the Victorian Department of Justice consulted the Chief Justice of the Supreme Court of Victoria, the Chief Judge of the County Court of Victoria, the Chief Magistrate of the Magistrates’ Court of Victoria, the Solicitor-General for Victoria, the Director of Public Prosecutions for Victoria and the Chief Crown Prosecutor for Victoria, by way of exchange of correspondence and discussions. In the course of those consultations, the Chief Justice of the Supreme Court of Victoria and the Chief Judge of the County Court of Victoria consulted the Judges and Masters of their respective courts. The Victorian Department of Justice and the Victorian Department of Premier and Cabinet also consulted the Governor of Victoria, by correspondence, and also by discussions with the Office of the Governor.