Judges' Pensions Amendment Regulations 2003 (No. 1) 2003 No. 343
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 343
JUDGES' PENSIONS AMENDMENT REGULATIONS 2003 (NO. 1)
Issued by the Authority of the Attorney-General
Judges' Pensions Act 1968
Subsection 21(1) of the Judges' Pensions Act 1968 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 21(2) of the Act provides that the regulations may also prescribe accrued benefit multiples for the purposes of Part VIIIB of the Family Law Act 1975 (the Family Law Act) or regulations made under that Act.
The Regulations prescribe the accrued benefit multiples to be used in the formulas in regulations 19 and 26 of the Family Law (Superannuation) Regulations 2001 (the Family Law Regulations) for the superannuation scheme constituted under the Act (the Judges' Pensions Scheme).
Part VIIIB of the Family Law Act provides for the division of superannuation on marriage breakdown. That Part provides for certain payments in respect of superannuation interests, called splittable payments, to be allocated between the parties to a marriage, either by agreement or by court order. Superannuation interests include `percentage-only interests'. Under regulation 9A of the Family Law Regulations, an interest in the Judges' Pensions Scheme has been prescribed as a percentage-only interest.
Under Part VIIIB of the Family Law Act, payments made in respect of a percentage-only interest can only be split (by agreement or by court order) by one of the following two methods:
• by a specified set percentage that is to apply to all splittable payments in respect of the interest; or
• by a specified percentage of, essentially, so much of each payment as can be considered to have accrued up until the date of the final separation of the parties.
When the second method is to be used under an agreement between the parties, regulation 19 of the Family Law Regulations contains a formula for calculating the amount of a splittable payment that is payable to the non-member spouse. The formula in regulation 26 for splitting a payment in respect of a percentage-only interest under a court order is in similar terms. In both cases, reference is made to the member spouse's `accrued benefit multiple' as defined in the governing rules of the relevant superannuation plan as at separation and at payment. In the case of the `superannuation plan' constituted by the Judges' Pensions Scheme, an accrued benefit multiple would represent the part of a judge's pension entitlement that the judge had accrued at the relevant date.
The effect of the Regulations is that a particular judge's accrued benefit multiples will be equal to the number of days that counted towards qualifying for a pension the judge had served at the dates of separation and of payment. In the case of a judge who receives a pension on invalidity grounds, the accrued benefit multiple at payment will instead be equal to the minimum number of days the judge would have had to serve to otherwise qualify for a pension.
Details of the Regulations are as follow.
Regulation 1 is formal, providing that the Regulations are the Judges' Pensions Amendment Regulations 2003 (No. 1).
Regulation 2 provides that the Regulations commence on gazettal.
Regulation 3 provides that Schedule 1 amends the Judges' Pensions Regulations 1998 (the Principal Regulations).
Item 1 of Schedule 1 adds regulation 5 to the Principal Regulations.
New Regulation 5 of the Principal Regulations
Paragraph 5(1)(a) sets the accrued benefit multiple at separation as the number of days of qualifying service the relevant judge had served when separation occurs.
Paragraph 5(1)(b) sets the accrued benefit multiple at payment by reference to whether or not subsection 6(2) of the Act applies to the judge. That provision entitles a judge to a pension where the judge retires and the Attorney-General certifies that the retirement is due to permanent disability or infirmity.
Subparagraph 5(1)(b)(i) sets the accrued benefit multiple at payment where subsection 6(2) of the Act does not apply as the number of days served at the time the judge qualifies for a pension.
Subparagraph 5(1)(b)(ii) sets the accrued benefit multiple at payment where subsection 6(2) of the Act applies as the minimum number of days the judge would have had to serve to qualify for a pension if that subsection did not apply.
Subregulation 5(2) is a definitional provision.
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Overview
The Judges' Pensions Amendment Regulations 2003 (No. 1) were enacted to address the need for specific accrued benefit multiples for judges' pensions within the context of family law, particularly in relation to superannuation interests on marriage breakdown. This regulation was issued under the authority of the Attorney-General and aligns with the provisions of the Judges' Pensions Act 1968, which empowers the Governor-General to make regulations necessary for the Act's implementation, including those required for the Family Law Act 1975. The policy objective of these regulations is to ensure that accrued benefit multiples for judges' pensions are clearly defined and applied in the calculation of splittable payments, facilitating equitable distribution of superannuation benefits in family law proceedings. The regulations specify that the accrued benefit multiple at separation and payment is determined by the number of days the judge had served or would have needed to serve to qualify for a pension, depending on the circumstances.
Scope and Application
The Judges' Pensions Amendment Regulations 2003 (No. 1) pertain to the calculation of accrued benefit multiples for judges within the Judges' Pensions Scheme, which is established under the Judges' Pensions Act 1968. These regulations are designed to align with the provisions of the Family Law Act 1975, particularly concerning the division of superannuation on marriage breakdown. The Act applies to judges who are members of the Judges' Pensions Scheme and their spouses, as it affects the calculation of splittable payments in the event of a marriage breakdown. These regulations are made under the authority provided by the Judges' Pensions Act 1968 and serve to prescribe specific accrued benefit multiples for use in the formulas within the Family Law (Superannuation) Regulations 2001. The regulations determine that the accrued benefit multiples are based on the number of days of qualifying service that a judge has served at the time of separation and at the time of payment, with adjustments for judges who receive pensions on invalidity grounds. These regulations extend across the Commonwealth of Australia, reflecting the national jurisdiction of the legislation.
Key Provisions
The main operative sections of the Judges' Pensions Amendment Regulations 2003 (No. 1) (the Regulations) focus on amending the accrued benefit multiples for judges participating in the superannuation scheme constituted under the Judges' Pensions Act 1968 (the Act). Regulation 5, added to the Judges' Pensions Regulations 1998 (the Principal Regulations), specifies these multiples. Specifically, paragraph 5(1)(a) defines the accrued benefit multiple at the time of separation as the number of days the judge had served that counted towards qualifying for a pension. Paragraph 5(1)(b) sets the accrued benefit multiple at the time of payment by referencing whether the judge qualifies for a pension under subsection 6(2) of the Act. If subsection 6(2) does not apply, subparagraph 5(1)(b)(i) sets the multiple as the number of days served at the time the judge qualifies for a pension. If subsection 6(2) does apply, subparagraph 5(1)(b)(ii) sets the multiple as the minimum number of days the judge would have had to serve to qualify for a pension.
The Regulations impose specific obligations on judges and the relevant authorities. For judges, these obligations include ensuring that their qualifying service is accurately recorded and reported, as this will determine their accrued benefit multiples at both separation and payment. The authorities responsible for administering the Judges' Pensions Scheme must use the accrued benefit multiples prescribed by the Regulations in their calculations. This requirement is critical in ensuring that the division of superannuation interests under the Family Law Act 1975 is conducted accurately and in accordance with the law.
Breach of the provisions in the Regulations may lead to civil or administrative consequences. While the Regulations themselves do not explicitly outline criminal penalties, non-compliance could potentially lead to disputes or legal challenges in the context of family law proceedings, particularly regarding the division of superannuation interests. Under the Family Law Act, incorrect application of the accrued benefit multiples could result in the need for court intervention to rectify the division of superannuation, potentially leading to further legal costs and complications for the parties involved. The precise consequences would depend on the specific circumstances of each case and the discretion of the court.