EXPLANATORY STATEMENT
FAMILY LAW (SUPERANNUATION) (PROVISION OF INFORMATION – NSW STATE SUPERANNUATION SCHEME) DETERMINATION 2010
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
In this instrument, the Attorney-General provides, by written determination, for the matters about which the trustee of the New South Wales State Superannuation Scheme is required to provide information, under the provisions of the Family Law Act 1975 (the Act) allowing superannuation to be split on relationship breakdown, in respect of an interest in the Scheme.
Part 8 of Schedule 2 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Valuation Approval) provides for methods for valuing particular categories of superannuation interests in New South Wales State Superannuation Scheme replacing, for those interests, valuation methods contained in the Family Law (Superannuation) Regulations 2001 (the Regulations) that would otherwise apply.
The making of this instrument ensures that, when New South Wales public sector employees and former New South Wales public sector employees, or their former spouses or de facto partners, apply for valuation information under the Act about a superannuation interest that they have in the New South Wales State Superannuation Scheme, they will receive information that is relevant to the valuation methods set out in Part 8 of Schedule 2 to the Valuation Approval. The information which the trustee of the New South Wales State Superannuation Scheme is required to provide will enable the interest in the Scheme to be valued in accordance with the particular alternative method that has been approved for the interest.
In the instrument, the Attorney-General also provides that the trustee of the New South Wales State Superannuation Scheme is not required to provide information that is relevant only to valuing a superannuation interest in accordance with one of the methods contained in the Regulations.
The instrument incorporates by reference the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, under which methods are approved for valuing, for the purpose of provisions of the Family Law Act 1975 allowing superannuation to be split on relationship breakdown, particular superannuation interests.
The Valuation Approval can be viewed at the following website:
http://www.comlaw.gov.au/comlaw/legislation/legislativeinstrumentcompilation1.nsf/current/bytitle/961B05B3F3E8A6C7CA25740B001FADB7?OpenDocument&mostrecent=1
A copy of the Valuation Approval may be purchased from CanPrint Communications Pty Ltd, PO Box 7456, Canberra MC ACT 2610 (telephone: 1300 656 863).
The instrument also incorporates by reference the Superannuation Act 1916 (NSW) which establishes the NSW State Superannuation Scheme.
The NSW Superannuation Act may be viewed at the following website:
http://www.legislation.nsw.gov.au/maintop/view/inforce/act+28+1916+cd+0+N
A copy of the Act can also be purchased from Salmat, a print-on-demand and mail order service, located at 2 Military Road, Matraville, NSW 2036. Contact details for Salmat are: Telephone: 1300 656 986, facsimile: 02 9311 1076 and e-mail: bookshop@salmat.com.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 New
South Wales Department of Premier and Cabinet and Cumpston Sarjeant, Consulting Actuaries, who were engaged by the New South Wales Department of Premier and Cabinet to advise in relation to the methods that have been approved and Pillar Administration, which provides administrative services to the trustee of the New South Wales State Superannuation Scheme.
The consultation occurred by way of exchange of correspondence and discussions between Commonwealth and New South Wales officials, and between Commonwealth officials and Cumpston Sarjeant.
Overview
The Family Law (Superannuation) (Provision of Information – NSW State Superannuation Scheme) Determination 2010 was enacted to address the specific requirements for the provision of information about superannuation interests under the New South Wales State Superannuation Scheme, as part of the broader legislative framework provided by the Family Law Act 1975. This determination ensures that when individuals, such as New South Wales public sector employees or their former spouses or de facto partners, seek information regarding the valuation of their superannuation interests for the purposes of family law, they receive accurate and relevant information aligned with the approved valuation methods set out in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003. The objective of this determination is to streamline the process and ensure consistency in the application of valuation methods for superannuation interests in the context of relationship breakdowns, thereby facilitating more equitable outcomes under the Family Law Act.
Scope and Application
The Family Law (Superannuation) (Provision of Information – NSW State Superannuation Scheme) Determination 2010 applies specifically to trustees of the New South Wales State Superannuation Scheme, ensuring that they provide accurate and relevant information about superannuation interests to individuals involved in relationship breakdowns, particularly in relation to the valuation of these interests. This legislation caters to New South Wales public sector employees, former employees, and their spouses or de facto partners, ensuring they receive pertinent information as outlined in the Family Law Act 1975 and the Superannuation Act 1916 (NSW). The instrument is designed to ensure that the information provided aligns with the approved valuation methods under the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003. This instrument does not require trustees to provide information that is only relevant to the methods contained in the Family Law (Superannuation) Regulations 2001. It operates within the Commonwealth jurisdiction and references the aforementioned Acts and Approval, extending its application through these incorporated references.
Key Provisions
The main operative sections of the F2011L00025 Determination (Part 8 of Schedule 2 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003) require the trustee of the New South Wales State Superannuation Scheme to provide information about an interest in the Scheme, under the Family Law Act 1975 (s. 90SL). This information must be relevant to the valuation methods set out in the Determination. Specifically, section 1 of the Determination mandates that the trustee must provide information that enables the interest in the Scheme to be valued according to the particular alternative method that has been approved for the interest. Conversely, section 2 stipulates that the trustee is not required to provide information that is relevant only to valuing a superannuation interest in accordance with one of the methods contained in the Family Law (Superannuation) Regulations 2001.
The obligations imposed by this Determination on the trustee of the New South Wales State Superannuation Scheme are primarily to furnish relevant information in a manner that aligns with the approved valuation methods. The trustee is expected to ensure that the information provided is specific to the alternative methods approved for the interest in question. This obligation is crucial in maintaining consistency and accuracy in the valuation process, which is integral to the equitable distribution of superannuation interests in cases of relationship breakdown under the Family Law Act 1975.
The F2011L00025 Determination does not explicitly outline specific offences, penalties, or consequences for breach. However, failure to comply with the requirements of the Family Law Act 1975 or related regulations could result in legal repercussions. For instance, providing incorrect or incomplete information might lead to disputes or legal challenges during the valuation process, potentially affecting the final distribution of superannuation interests. Additionally, the New South Wales Superannuation Act 1916 (NSW) and the Family Law (Superannuation) Regulations 2001 may impose penalties for non-compliance, which could include fines or other legal actions. While the Determination itself does not specify maximum penalties, the broader legislative framework under which it operates does provide for such consequences.