Family Law (Superannuation) (Provision of Information - SA Local Government Superannuation Scheme) Amendment Determination 2012 (No. 1)

Administered by Attorney-General's Department

Legislation au F2012L01476 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by Authority of the Attorney-General

 

Family Law (Superannuation) Regulations 2001

 

Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Amendment Determination 2012 (No. 1)

If, under regulation 38 of the Family Law (Superannuation) Regulations 2001, the AttorneyGeneral has approved methods for determining the gross value of superannuation interests for the purposes of the provisions of the Family Law Act 1975, under subregulation 64(7) of the Family Law (Superannuation) Regulations 2001, the AttorneyGeneral may approve in writing that a trustee of a superannuation scheme must provide other information, as specified in the determination, about the interest or the component of the interest.  In this instrument, the Attorney-General amends the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003 (the Provision of Information Determination).

The Provision of Information Determination provides for the matters about which the trustee of the South Australian Local Government Superannuation Scheme is required to provide information, under the provisions of the Family Law Act 1975 allowing superannuation to be split on relationship breakdown, in respect of an interest in the Scheme.

Pursuant to arrangements made by the South Australian Government, members of the South Australian Local Government Superannuation Scheme are to be transferred to the Statewide Superannuation Trust.  Once transferred, the Local Government Superannuation Scheme members are to have the same rights and entitlements that they had as members of the South Australian Local Government Superannuation Scheme.

Specifically, this instrument amends the Provision of Information Determination so that the obligation to provide information about a member’s superannuation account applies to the trustees of Statewide Superannuation Trust in respect of the interests of members who have been transferred from the South Australian Local Government Scheme.

Consultation on the content of the amendments occurred between the Commonwealth and the South Australian Local Government Superannuation Scheme by way of email and telephone exchange.

The instrument commences on 1 July 2012.

The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Details of the instrument are as follows:

Section 1Name of determination

Section 1 provides that the title of the instrument is the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Amendment Determination 2012 (No.1).  

 

Section 2 — Commencement

Section 2 provides that the instrument commences on 1 July 2012.

 

Section 3 Amendment of Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003

 

Section 3 provides that the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003 is amended as set out in Schedule 1.

Schedule 1 Amendments

Item [1] – Section 3, definition of Rules

Item 1 substitutes the definition of Rules in section 3 of the Provision of Information Determination to mean the rules set out in Division 9 of the trust deed.  A definition of trust deed is inserted into the Provision of Information Determination by item [3].

Item [2] – Section 3, definition of SA Local Government Superannuation Scheme

Item 2 amends the definition of SA Local Government Superannuation Scheme by omitting the reference to subclause 3(1) of Schedule 1 to the Local Government Act 1999 (SA)” and inserting “paragraph 2(1)(b) of Schedule 1 to the Local Government (Superannuation Scheme Amendment Act 2008 (SA) in its place.  The Local Government (Superannuation Scheme) (Merger) Amendment Act 2012 (SA) amends the transitional provisions in the Local Government (Superannuation Scheme) Amendment Act 2008 (SA) (located in Schedule 1 of that Act) to enable the South Australian Local Government Superannuation Scheme to continue in existence as a result of a merger of the scheme (or a subsequent merger of the scheme) with another superannuation fund (in this case the Statewide Superannuation Trust).

Item [3] – Section 3

Item 3 inserts a definition of trust deed to mean the declaration of trust dated 1 May 1986, made by Statewide Superannuation Pty Ltd, as amended and in force on 1 July 2012.  A copy of the trust deed is available to members on request.

Item [4] – Paragraph 5 (b)

Item 4 omits the reference to “rule 73” and inserts a reference to “rule 58 of Sub-division C” in its place.  This takes account of reference changes in the trust deed, as a result of the merger, in relation to the retention of benefits in the Local Government Superannuation Scheme.


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 – SA Local Government Superannuation Scheme) Amendment Determination 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

 

Pursuant to arrangements made by the South Australian Government, the members of the South Australian Local Government Superannuation Scheme are to be transferred to the Statewide Superannuation Trust.  This instrument ensures that, once transferred, the Local Government Superannuation Scheme members retain the same rights and entitlements that they had as members of the South Australian Local Government Superannuation Scheme.

Human rights implications

The instrument does not engage any of the applicable rights and freedoms as its affect is only administrative.

Conclusion

The instrument is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

The Hon Nicola Roxon MP

Attorney-General

Overview

The Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Amendment Determination 2012 (No. 1) was enacted to address the gap created by the transfer of members from the South Australian Local Government Superannuation Scheme to the Statewide Superannuation Trust. This legislative instrument was approved by the Attorney-General and commenced on 1 July 2012. It amends the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003, ensuring that the trustees of the Statewide Superannuation Trust are obligated to provide information about superannuation interests as required by the Family Law Act 1975. This amendment ensures that members who are transferred retain the same rights and entitlements they had under the original scheme. The determination was made following consultations between the Commonwealth and the South Australian Local Government Superannuation Scheme. The policy objective of this instrument is to maintain the continuity of rights and entitlements for superannuation scheme members during the transition from one scheme to another.

Scope and Application

The Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Amendment Determination 2012 (No. 1) applies to the trustees of the South Australian Local Government Superannuation Scheme and, by virtue of the amendments, to the trustees of the Statewide Superannuation Trust for members who have been transferred from the South Australian Local Government Superannuation Scheme. This amendment is made under the authority of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001. The instrument ensures that upon the transfer of members from the South Australian Local Government Superannuation Scheme to the Statewide Superannuation Trust, the trustees of the Statewide Superannuation Trust are subject to the same obligations as those previously imposed on the trustees of the South Australian Local Government Superannuation Scheme. These obligations include the provision of specified information regarding superannuation interests in the context of relationship breakdowns, as allowed under the Family Law Act 1975. The instrument is applicable nationally within Australia, as it concerns the administration of superannuation under federal family law provisions. The instrument commenced on 1 July 2012, and it amends the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003 to reflect the structural changes resulting from the merger of the superannuation schemes. The amendments ensure continuity in the rights and entitlements of the superannuation members during the transition.

Key Provisions

The Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Amendment Determination 2012 (No. 1) amends the Family Law (Superannuation) (Provision of Information–SA Local Government Superannuation Scheme) Determination 2003. It introduces changes to ensure that the trustees of the Statewide Superannuation Trust provide necessary information about the superannuation interests of members who have been transferred from the South Australian Local Government Superannuation Scheme (sections 1 to 3). Specifically, it modifies the definition of 'Rules' and 'SA Local Government Superannuation Scheme' to reflect the merger and the new trust deed, ensuring that the rights and entitlements of the members remain unchanged (Schedule 1, items 1 to 4). The Determination imposes obligations on the trustees of the Statewide Superannuation Trust to provide specific information about the superannuation interests of transferred members. This includes ensuring that the members retain the same rights and entitlements they had under the South Australian Local Government Superannuation Scheme (Schedule 1). Trustees must adhere to the new definitions and rules outlined in the trust deed, dated 1 May 1986, as amended and in force on 1 July 2012. Failure to provide the required information may result in legal consequences under the Family Law Act 1975 and other relevant legislation. There are no explicit offences or penalties mentioned within the Determination itself. However, non-compliance with the requirements to provide information as specified under the Family Law Act 1975 could result in civil or criminal consequences, including fines or imprisonment. The exact penalties would be determined by the Family Law Act and the specific circumstances of the breach.

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