EXPLANATORY STATEMENT
Issued by Authority of the Attorney-General
Family Law Act 1975
Family Law (Superannuation – Provision of Information: Judges’ Pensions Act Scheme) Determination 2013
Subsection 125(1) of the Family Law Act 1975 (the Family Law Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Family Law Act, prescribing all matters required or permitted by the Family Law Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Family Law Act. The Family Law (Superannuation) Regulations 2001 (the Regulations) have been prescribed to give effect to the distribution of superannuation interests under Part VIIIB of the Family Law Act.
The Regulations contain a default method for valuing superannuation interests. Under the Regulations, the Attorney-General may approve in writing an alternative (scheme-specific) method and factors for determining the gross value of particular superannuation interests. The Family Law (Superannuation)(Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Methods and Factors Approval) has been made for this purpose and contains methods and factors for determining the interests in over 30 superannuation plans. The Methods and Factors Approval is a legislative instrument and has been registered on the Federal Register of Legislative Instruments.
The Judges and Governors-General Legislation Amendment (Family Law) Act 2012 (Judges and Governors-General Act) amends the Judges’ Pensions Act Scheme (the scheme constituted by the Judges’ Pensions Act 1968 for the provision of retirement and other benefits to and in respect of Judges, within the meaning of that Act) to introduce scheme‑specific methods and factors for the splitting of a Judges’ pension at the time of a property split, rather than rely on the ‘percentage-only’ splitting arrangements whereby any split in a property settlement of the pension of a Judge occurs only when payments are made to a retired Judge. The scheme-specific methods and factors are being included in Part 6 of Schedule 1 to the Methods and Factors Approval.
Where the Attorney-General has approved an alternative method and factors for determining the gross value of particular superannuation interests under regulations 38 and 43A of the Regulations, subregulations 64(7) and 64(7B) of the Regulations, respectively, provide that the Attorney‑General may approve in writing that the trustee of a superannuation scheme is either not required to provide certain information about the interest and/or that the trustee must provide other information about the interest. In this instrument, the Attorney-General approves the Family Law (Superannuation – Provision of Information: Judges’ Pensions Act Scheme) Determination 2013 (Provision of Information Determination) for this purpose. The Methods and Factors Approval is incorporated by reference in the Provision of Information Determination.
The Provision of Information Determination provides for the matters about which the trustee of the Judges’ Pensions Act Scheme is required to provide information to members, spouses and former spouses, under the provisions of the Family Law Act allowing superannuation to be split on relationship breakdown, in respect of an interest in the Scheme. It also provides for the matters about which the trustee is not required to provide information in respect of an interest in the Scheme. Nothing in the Provision of Information Determination allows for, or permits, the disclosure of personal information.
Information provided in accordance with the Provision of Information Determination will enable members of the Judges’ Pensions Act Scheme and their spouses or former spouses, to value an interest in the Scheme in accordance with the alternative valuation methods and factors that have been approved in the Methods and Factors Approval.
The Department of Finance and Deregulation, having responsibility for the Judges’ Pensions Act Scheme, undertakes any administrative work arising under the reforms for the Scheme.
Consultation on the content of the Provision of Information Determination occurred between the Commonwealth Attorney-General’s Department and the Department of Finance and Deregulation by way of email and telephone exchange.
The date of commencement of the instrument is 15 March 2013.
The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the instrument are as follows:
Section 1 — Name of determination
Section 1 provides that the title of the instrument is the Family Law (Superannuation—Provision of Information: Judges’ Pensions Act Scheme) Determination 2013.
Section 2 — Commencement
Section 2 provides that the instrument commences on 15 March 2013.
Section 3 — Authority
Section 3 provides that the instrument is made under subregulations 64(7) and (7B) of the Regulations.
Section 4 — Definitions
Section 4 provides definitions in relation to certain terms used in the instrument:
growth phase table means the table in clause 2 of Part 6 of Schedule 1 to the Methods and Factors Approval.
Judge has the same meaning as in the Judges’ Pensions Act 1968 (Judges’ Pensions Act).
Judges’ Pensions Act Scheme means the scheme constituted by the Judges’ Pensions Act.
Methods and Factors Approval means the Family Law (Superannuation)(Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003.
Regulations means the Family Law (Superannuation) Regulations 2001.
Section 4 also clarifies that, for this instrument, a reference to “the relevant date” in the definition of a factor in the Methods and Factors Approval mentioned in column 3 of an item of the table in section 6 is to be read as if it were a reference to “the appropriate date”.
Section 5 — Application of determination
Section 5 provides that the instrument applies to a superannuation interest in the Judges’ Pensions Act Scheme for which a method and factors have been approved under Part 6 of Schedule 1 to the Methods and Factors Approval
Section 6 — Provision of information by trustee—growth phase interests
Section 6 provides that the trustee of the Judges’ Pensions Act Scheme, in relation to a superannuation interest mentioned in an item in the table contained in the section, is not required to provide the information about the interest mentioned in column 2 of the item; and must provide the information about the interest mentioned in column 3 of the item.
Section 7 — Provision of information by trustee—payment phase interests
Section 7 provides that the trustee of the Judges’ Pensions Act Scheme is not required to provide the information mentioned in the stated paragraphs of the Regulations in relation to an interest that a person has in the Scheme as a result of being paid a pension under the Judges’ Pensions Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law (Superannuation – Provision of Information: Judges’ Pensions Act Scheme) Determination 2013
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 Judges’ Pensions Act Scheme is being amended by the Judges and Governors-General Legislation Amendment (Family Law) Act 2012 (Judges and Governors-General Act) to introduce scheme-specific methods and factors for the splitting of a Judges’ pension at the time of a property split. The amendments will allow a former spouse of a Judge to receive his or her share of the superannuation benefit as a separate benefit at the time of a property split. This is consistent with family law policy, which aims to provide separating parties with a clean break, and is consistent with superannuation splitting arrangements in the other Commonwealth defined benefit schemes. The scheme-specific methods and factors are being included in Part 6 of Schedule 1 to the Family Law (Superannuation)(Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Methods and Factors Approval).
Where the Attorney-General has approved alternative methods and factors for determining the gross value of particular superannuation interests, the Attorney-General may also approve in writing that the trustee of a superannuation scheme is either not required to provide certain information about the interest and/or that the trustee must provide other information about the interest.
The Family Law (Superannuation – Provision of Information: Judges’ Pensions Act Scheme) Determination 2013 (Provision of Information Determination) provides for the matters about which the trustee of the Judges’ Pensions Act Scheme is required to provide information to members, spouses and former spouses, under the provisions of the Family Law Act allowing superannuation to be split on relationship breakdown, in respect of an interest in the Scheme. It also provides for the matters about which the trustee is not required to provide information in respect of an interest in the Scheme. Nothing in the Provision of Information Determination allows for, or permits, the disclosure of personal information.
Human rights implications
The Provision of Information Determination assists to reflect the amendments made by the Judges and Governors‑General Act and the Methods and Factors Approval and therefore does not directly impact on any human rights.
However, the effect of the Provision of Information Determination 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 as it advances the protection of human rights.
The Provision of Information Determination will assist in promoting the human rights recognised in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), particularly Article 16. Article 16 requires that States’ parties take all appropriate measures to eliminate discrimination against women in all matters relating to marriage.
In 2008, Sex Discrimination Commissioner Elizabeth Broderick advised the then Attorney‑General that, in her view, the Judges Pension Act 1968 may be inconsistent with the objects of the Sex Discrimination Act 1984 and may also violate Article 16 of CEDAW. She explained that, as a consequence of the current family law splitting arrangements for Federal Judges, three major disadvantages for divorcing spouses of Federal Judges are likely:
- Commencement of pension payments is timed with the Judge's retirement and is therefore uncertain
- For women non-members there may be a gap between their retirement and their entitlement to pension payments, given that men tend to work longer than women before retiring, and
- There is no entitlement to pension payments after the Judge dies. Given the differential life expectancies of women and men, this means that women affected are unlikely to receive pension payments for the duration of their retirement.
The amendments made by the Judges and Governors-General Act promotes the human rights of women by allowing former spouses of Judges and Governors-General, who have until relatively recently predominantly been women, to receive a separate interest benefit in the event of a family law split. This approach resolves the issues identified by the Sex Discrimination Commissioner.
Conclusion
The Provision of Information Determination is compatible with human rights freedoms because it advances the protection of human rights.