EXPLANATORY STATEMENT
FAMILY LAW (SUPERANNUATION) (PROVISION OF INFORMATION – PUBLIC SECTOR SUPERANNUATION SCHEME) AMENDMENT DETERMINATION 2008 (No.1)
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
In this instrument the Attorney-General, under subregulation 64(7) of the Family Law (Superannuation) Regulations 2001, amends the Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Determination 2004 (the Determination).
The Determination makes provision in relation to information that the trustee of the Public Sector Superannuation Scheme (the Scheme) is required, under the provisions of the Family Law Act 1975 (the FL Act) enabling superannuation to be split in property settlements on marriage breakdown, to provide to spouses and former spouses about superannuation interests for which alternative valuation methods have been approved.
The information that the trustee is required to provide is relevant to valuing interests in accordance with the alternative valuation methods that have been approved.
Several of the alternative valuation methods have, by amendments made to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 by the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2008 (No. 1), been adjusted to reflect changes to the Scheme permitting the early release of benefits on compassionate or severe financial hardship grounds.
The instrument amends the Determination to require the trustee of the Scheme, when an application is made by a spouse or a former spouse under the provisions of the FL Act for information about an interest for which one of those alternative valuation methods have been approved, to provide information about any early release of benefits on those grounds.
Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Department of Finance and Deregulation and Commonwealth Superannuation Administration (ComSuper) by way of exchange of correspondence, discussions and a meeting (involving the Australian Government Actuary’s office, the Department of Finance and Deregulation and the Attorney-General’s Department).
Overview
The Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Amendment Determination 2008 (No. 1) was enacted to address the need for updating the information requirements under the Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Determination 2004. This amendment was introduced in response to changes in the Public Sector Superannuation Scheme that allowed for the early release of benefits on compassionate or severe financial hardship grounds. Issued by the authority of the Attorney-General under subregulation 64(7) of the Family Law (Superannuation) Regulations 2001, the instrument aims to align the information provided by the trustee of the Public Sector Superannuation Scheme with the approved alternative valuation methods. This ensures that spouses and former spouses are informed about any early releases of benefits, thereby supporting the policy objective of maintaining accurate and relevant information for property settlements under the Family Law Act 1975.
Scope and Application
The Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Amendment Determination 2008 (No.1) amends the Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Determination 2004 to address the requirement for trustees of the Public Sector Superannuation Scheme to provide information to spouses or former spouses concerning superannuation interests where alternative valuation methods have been approved. Specifically, this amendment requires the trustee to furnish details about any early release of benefits on compassionate or severe financial hardship grounds when such information is requested under the Family Law Act 1975. This Act applies to trustees of the Public Sector Superannuation Scheme, and its amendments ensure that the information provided reflects the most current valuation methods and circumstances, including adjustments made to account for early releases. The determination applies nationally, impacting all public sector superannuation trustees operating within Australia, and is integral to the proper administration of property settlements during marriage breakdowns.
Key Provisions
The Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Amendment Determination 2008 (No. 1) amends the Family Law (Superannuation) (Provision of Information – Public Sector Superannuation Scheme) Determination 2004. The Determination (sections 1-2) primarily requires the trustee of the Public Sector Superannuation Scheme (the Scheme) to provide information to spouses or former spouses concerning superannuation interests that have been valued using approved alternative methods, particularly in the context of property settlements on marriage breakdown. This includes information pertinent to the valuation of these interests in line with the approved alternative methods. The amendment responds to recent changes in the Scheme that permit the early release of benefits on compassionate or severe financial hardship grounds. As such, the trustee must now also provide information regarding any early release of benefits when an application is made under the Family Law Act 1975 (the FL Act) by a spouse or former spouse (section 3).
The obligations imposed by the amendment on the trustee of the Scheme include the provision of updated and comprehensive information to the relevant parties. When an application is made under the FL Act, the trustee must provide information not only about the approved alternative valuation methods but also about any early release of benefits on compassionate or severe financial hardship grounds. This obligation ensures that spouses or former spouses have access to all relevant information necessary for the valuation of superannuation interests, thereby supporting the equitable division of assets in property settlements (section 3). The trustee must ensure that the information provided is accurate, up-to-date, and compliant with the requirements of the Determination.
Breach of the obligations set out in the Determination could lead to various consequences. While the Determination itself does not specify particular offences, penalties, or civil/criminal consequences for non-compliance, breaches of the requirements under the FL Act or the Family Law (Superannuation) Regulations 2001 could result in legal action. The Family Law Act includes provisions for penalties for non-compliance, including fines and imprisonment. However, the specific penalties would depend on the nature and severity of the breach, and would be determined in accordance with the relevant sections of the Act or Regulations.