EXPLANATORY STATEMENT
Issued by authority of the Minister for Finance and Deregulation
Judges and Governors-General Legislation Amendment (Family Law) Act 2012
Proclamation
Item 2 of subsection 2(1) of the Judges and Governors-General Legislation Amendment (Family Law) Act 2012 (the Act) provides for Schedules 1 and 2 to the Act to commence on a day or days to be fixed by Proclamation.
Item 2 of subsection 2(1) of the Act also provides that if any of the provisions in Schedules 1 and 2 do not commence within the period of six months beginning on the day on which the Act receives the Royal Assent, they commence on the day after the end of that period.
The Act received the Royal Assent on 11 October 2012.
The purpose of the Proclamation is to fix 15 March 2013 as the day on which Schedules 1 and 2 commence.
Schedule 1 amends the Judges’ Pensions Act 1968 and Schedule 2 amends the Governor-General Act 1974.
The amendments in Schedules 1 and 2 will allow the superannuation benefits for Judges and Governors-General to be split with a former spouse in the event of a marital or relationship breakdown, at a time a superannuation splitting agreement or order is made. A former spouse will be able to receive his or her share of the benefit at this time, rather than payment of the benefit being linked to the retirement of the Judge or Governor-General and being ceased upon their death. These arrangements will give certainty to both parties in property settlement negotiations and will provide each party with their own separate benefit at the time of the split.
The Act specifies no conditions that need to be satisfied before the Proclamation is made.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. Since the Proclamation provides solely for the commencement of legislative provisions, it is exempt from disallowance and sunsetting provisions under the Legislative Instruments Act 2003.
A Statement of Compatibility with Human Rights was prepared for the Act, and therefore an additional Statement is not required for the Proclamation.
The Department of Finance and Deregulation consulted with the Attorney-General’s Department in the development of the Act and the Proclamation.
Overview
The Judges and Governors-General Legislation Amendment (Family Law) Act 2012 was enacted to address the gap in superannuation splitting arrangements for Judges and Governors-General in the event of a marital or relationship breakdown. The Act was passed by the Australian Parliament and received Royal Assent on 11 October 2012. The policy objective of the Act is to ensure that former spouses are able to receive their share of the superannuation benefits of Judges and Governors-General at the time of the split, rather than waiting until the retirement or death of the Judge or Governor-General. This provides certainty in property settlement negotiations and ensures that each party has their own separate benefit. The Act includes a Proclamation which fixes the commencement date for the amendments made by Schedules 1 and 2, which respectively amend the Judges’ Pensions Act 1968 and the Governor-General Act 1974. The Proclamation exempts the legislative instrument from disallowance and sunsetting provisions under the Legislative Instruments Act 2003.
Scope and Application
The Judges and Governors-General Legislation Amendment (Family Law) Act 2012 applies to Judges and Governors-General, allowing their superannuation benefits to be split with a former spouse during property settlement negotiations in the event of a marital or relationship breakdown. This is facilitated by amending the Judges’ Pensions Act 1968 and the Governor-General Act 1974, as outlined in Schedules 1 and 2 of the Act. The geographic reach of this legislation is Commonwealth, as it pertains to federal judges and the Governor-General. The Act does not specify any exclusions, exemptions, or thresholds, and its application is not extended or restricted by subordinate instruments. The Proclamation, which sets 15 March 2013 as the commencement date for Schedules 1 and 2, is a legislative instrument exempt from disallowance and sunsetting provisions under the Legislative Instruments Act 2003. A Statement of Compatibility with Human Rights was prepared for the Act, indicating that the Proclamation does not require an additional statement.
Key Provisions
The Judges and Governors-General Legislation Amendment (Family Law) Act 2012 (F2013L00390) primarily focuses on providing amendments to two existing Acts, namely the Judges’ Pensions Act 1968 and the Governor-General Act 1974. According to Item 2 of subsection 2(1) of the Act, the commencement of the provisions outlined in Schedules 1 and 2 is to be fixed by Proclamation, with a default date set six months after the Royal Assent, which occurred on 11 October 2012. The Proclamation, issued on the authority of the Minister for Finance and Deregulation, designates 15 March 2013 as the commencement date for these schedules.
Schedule 1 of the Act amends the Judges’ Pensions Act 1968 to allow for the division of superannuation benefits between a Judge and their former spouse during property settlement negotiations. Similarly, Schedule 2 amends the Governor-General Act 1974 to facilitate the same kind of division of superannuation benefits between a Governor-General and their former spouse. These amendments ensure that a former spouse can receive their share of the superannuation benefit at the time of the split, rather than waiting until the Judge or Governor-General retires, and the benefit ceasing upon their death. This legislative change aims to provide clarity and fairness in property settlement discussions, allowing each party to have their own separate benefit upon the split.
The Act imposes obligations on the relevant parties, such as Judges and Governors-General, to ensure that any superannuation benefits accrued during their tenure are eligible for division in the event of a marital or relationship breakdown. Additionally, it requires the relevant authorities to facilitate the division of these benefits as per the provisions outlined in the amended Acts. The Department of Finance and Deregulation, in collaboration with the Attorney-General’s Department, was involved in the development of the Act and the Proclamation, ensuring that all legal and procedural aspects are addressed.
Failure to comply with the provisions of the amended Acts could result in various legal consequences. While the specific offences and penalties are not detailed within the Proclamation, breaches of the superannuation splitting provisions could potentially lead to civil or criminal penalties. However, the maximum penalties are not specified within the text provided. The Act is designed to be enforceable, with the intent to provide a clear framework for the division of superannuation benefits in family law contexts.