EXPLANATORY STATEMENT
Subject - Family Law Act 1975
Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1)
The Attorney-General, under regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001 (the Regulations), may approve in writing methods for determining the gross value of superannuation interests for the purposes of the provisions of the Family Law Act 1975 that allow superannuation to be split on relationship breakdown. In this instrument, the Attorney-General amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Approval).
The Approval contains references to the Defence Force Retirement and Death Benefits Authority (the Authority). In 2011, the existing trustee boards of the main civilian and military superannuation schemes were consolidated into a single administration board, the Commonwealth Superannuation Corporation (CSC).
The amendments made by the Attorney-General in this instrument reflect changes made by:
- the Governance of Australian Government Superannuation Schemes Act 2011 (the Schemes Act), and
- the ComSuper Act 2011, and
- the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 (the Transitional Act)
These instruments established the CSC as administrator of the Defence Force Retirement and Death Benefits Scheme (the Scheme).
This instrument reflects the changes made to the administration of the Scheme in the Approval.
The amendments to provisions in Part 3 of Schedule 1 of the Approval remove reference to the Authority, and insert reference to the CSC.
The amendment to clause 1 in Part 3 of Schedule 1 of the Approval removes the definition of the Authority, and inserts the definition of the CSC.
The Department of Finance and Deregulation requested that these amendments be made. Due to the technical nature of these amendments no further consultation has been undertaken.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Legislative Instrument is to reflect changes to some military and civilian superannuation schemes and their administration made by certain Acts in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Approval).
The Governance of Australian Government Superannuation Schemes Act 2011 (the Schemes Act), the ComSuper Act 2011 and the Superannuation Legislation (Consequential Amendments and Transition) Provisions Act 2011 (the Transitional Act) consolidated the existing trustee boards of the main civilian and military superannuation schemes into a single administration board, the Commonwealth Superannuation Corporation (CSC). The Legislative Instrument will amend the Approval to reflect this change.
The Approval will be amended to ensure that the appropriate body is prescribed as trustee of the Defence Force Retirement and Death Benefits Scheme for the purposes of the Family Law Act 1975 (Family Law Act). The amendments will remove reference to the Defence Force Retirement and Death Benefits Authority in the Approval and prescribe the CSC as trustee of the Scheme.
Human rights implications
The approval does not engage any of the applicable rights and freedoms.
Conclusion
The approval is compatible with human rights as it does not raise any human rights issues.
Overview
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1) was enacted to address the need for updating references to the Defence Force Retirement and Death Benefits Authority in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, following legislative changes that consolidated the trustee boards of the main civilian and military superannuation schemes into the Commonwealth Superannuation Corporation (CSC). This amendment was carried out by the Attorney-General under regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001. The objective was to ensure that the appropriate body is prescribed as trustee of the Defence Force Retirement and Death Benefits Scheme for the purposes of the Family Law Act 1975, aligning with the new administrative arrangements established by the Governance of Australian Government Superannuation Schemes Act 2011, the ComSuper Act 2011, and the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. This Legislative Instrument has been assessed for compatibility with human rights and is deemed not to engage any of the applicable rights and freedoms, thereby maintaining its compatibility with human rights as recognised in the relevant international instruments.
Scope and Application
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1) amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, reflecting changes in the administration of superannuation schemes made by the Governance of Australian Government Superannuation Schemes Act 2011, the ComSuper Act 2011, and the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. These amendments ensure the Family Law Act 1975 aligns with the consolidation of the existing trustee boards of the main civilian and military superannuation schemes into the Commonwealth Superannuation Corporation (CSC). The Act applies to the valuation methods and factors for determining the gross value of superannuation interests for the purposes of family law, specifically when superannuation is to be split on relationship breakdown. The changes are technical and jurisdictional, applying to the national level as they pertain to Commonwealth-administered superannuation schemes, and do not extend or restrict application through subordinate instruments. The amendments remove references to the Defence Force Retirement and Death Benefits Authority and replace them with references to the CSC, ensuring the correct entity is recognised as the trustee of the Defence Force Retirement and Death Benefits Scheme under the Family Law Act.
Key Provisions
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1) primarily serves to update the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Approval) to reflect changes in superannuation scheme administration resulting from the Governance of Australian Government Superannuation Schemes Act 2011, the ComSuper Act 2011, and the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. The key operative sections of this legislative instrument involve amending the Approval to replace references to the Defence Force Retirement and Death Benefits Authority with the Commonwealth Superannuation Corporation (CSC) as the trustee of the Defence Force Retirement and Death Benefits Scheme. This includes modifying definitions and references within Part 3 of Schedule 1 of the Approval to reflect the new administrative arrangements.
The obligations imposed by the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2012 (No. 1) primarily require the relevant authorities to use the updated methods and factors for valuing superannuation interests as specified in the amended Approval. The CSC is now to be recognised as the trustee of the Defence Force Retirement and Death Benefits Scheme for the purposes of the Family Law Act 1975. This legislative change ensures that the methods and factors for valuing particular superannuation interests align with the current administrative framework established by the consolidating Acts.
There are no specific offences, penalties, or civil/criminal consequences outlined in the legislative instrument for non-compliance with the updated methods and factors for valuing superannuation interests. However, the underlying Family Law Act 1975 may provide for various penalties and consequences for breaches related to the valuation and distribution of superannuation interests during relationship breakdowns. The primary focus of this amendment is to ensure that the legislative framework remains current and accurately reflects the administration of superannuation schemes, thereby avoiding potential legal ambiguities or disputes.