EXPLANATORY STATEMENT
Veterans’ Entitlements (Family Law Affected Income Streams) Principles Amendment Instrument 2025.
EMPOWERING PROVISION
The Repatriation Commission makes this instrument under section 46ZC and subsection 52BA(5) of the Veterans’ Entitlements Act 1986 (the Act).
PURPOSE
This instrument updates the Veterans’ Entitlements (Family Law Affected Income Streams) Principles 2022 as a consequence of the making of the Family Law (Superannuation) Regulations 2024 which replaced the Family Law (Superannuation) Regulations 2001.
OVERVIEW
This instrument amends the Veterans’ Entitlements (Family Law Affected Income Streams) Principles 2022 (the Principles) by substituting references to the Family Law (Superannuation) Regulations 2001 (the Regulations 2001) with references to the Family Law (Superannuation) Regulations 2025 (the Regulations 2025).
The Principles specify the decision-making principles that the Repatriation Commission must comply with when calculating the amount of ordinary income received by a person from various family law affected income streams, i.e. income streams that are subject to a decision under the Family Law Act 1975 (see section 5JC of that Act). The purpose of the Regulations 2025 is to ensure the continued fair and accurate treatment of superannuation in the context of relationship breakdowns.
While substantial changes were made in the remaking of the Regulations 2001 to the Regulations 2025, these do not impact the operation of the Principles. As the Principles previously relied on the Regulations 2001 to define various terms, this instrument amends references to the Regulations 2001 to Regulations 2025 to ensure updated references are properly applied.
EXPLANATION OF PROVISIONS
Section 1 states the name of the instrument: the Veterans’ Entitlements (Family Law Affected Income Streams) Principles Amendment Instrument 2025.
Section 2 provides that the instrument commences on the day after it is registered.
Section 3 sets out the authority for the Repatriation Commission to make the instrument, namely section 46ZC and subsection 52BA(5) of the Act.
Section 4 is a standard provision used in instruments that amend or repeal other instruments. It gives effect to Schedule 1.
Schedule 1—Amendments
Item 1
Section 4 (definition of an allocated pension)
This item omits the reference to “regulation 3 of the Family Law (Superannuation) Regulations 2001” in the definition of “allocated pension” in section 4 of the Principles and replaces it with a reference to “section 4 of the Family Law (Superannuation) Regulations 2025”. There is no change to policy because of this substitution. The definition of “allocated pension” remains the same.
Item 2
Section 4 (definition of base amount allocated to the non-member spouse)
This item omits regulation 45 of the Family Law (Superannuation) Regulations 2001 and substitutes section 72 of the Family Law (Superannuation) Regulations 2025. There is no change to policy because of this substitution. The definition of “base amount allocated to the non-member spouse” remains the same.
Item 3
Section 4 (definition of market linked pension)
This item omits regulation 3 of the Family Law (Superannuation) Regulations 2001 and substitutes section 4 of the Family Law (Superannuation) Regulations 2025. There is no change to policy because of this substitution. The definition of “market linked pension” remains the same.
Consultation
The Department of Social Services (DSS) administers the equivalent instrument under the Social Security Act 1991—the Social Security (Family Law Affected Income Streams) Principles 2022. The Department of Veterans’ Affairs has consulted with DSS to ensure consistency in the making of this instrument.
In making this instrument, no policy changes have been made as the relevant definitions remain substantially the same. There has been consultation with DSS and the Attorney-General's Department. There has been no consultation with the relevant client group as there has been no change to the policy.
Documents incorporated by reference
There are no documents incorporated by reference.
Human rights implications
This instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment A.
Making the instrument
The instrument is made by the Repatriation Commission.
Approved by
Repatriation Commission
Rule-maker
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Veterans’ Entitlements (Family Law Affected Income Streams) Principles Amendment Instrument 2025.
This Disallowable 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 (the recognised rights).
Overview of the Disallowable Legislative Instrument
The Veterans’ Entitlements (Family Law Affected Income Streams) Principles Amendment Instrument 2025 (the Instrument) amends the Veterans’ Entitlements (Family Law Affected Income Streams) Principles 2022 (the Principles) by substituting references to the Family Law (Superannuation) Regulations 2001 (the Regulations 2001) with references to the Family Law (Superannuation) Regulations 2025 (the Regulations 2025).
The Principles specify the decision-making principles that the Repatriation Commission must comply with when calculating the amount of ordinary income received by a person from various family law affected income streams.
The purpose of the Regulations 2025 is to ensure the continued fair and accurate treatment of superannuation in the context of relationship breakdowns. The substantial changes that have been made in the remaking of the Regulations 2001 to the Regulations 2025 do not impact on the operation of the Principles. The updates included in the Regulations 2025 that do connect to the Principles are primarily minor in nature and include modernising language and updating references. The Principles rely on the Regulations 2025 for defining various terms.
Human rights implications
The legislative instrument promotes the right to social security in article 9 of the International Covenant on Economic Social and Cultural Rights. The right to social security requires that a social security system be established under law, and that public authorities must take responsibility for the effective administration of that system. Within the system, a social security scheme must provide a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs and the most basic forms of education. The Instrument promotes an accurate and fair assessment of ordinary income for the purposes of calculating income support payments through the application of the means-test under the Veterans’ Entitlement Act 1986. This supports the aims of the social security system and scheme by appropriately recognising an individual’s capacity for self-support when determining their rate of income support.
The Instrument will ensure that an income support recipient has their income support payments fairly assessed in the event that their income streams are either wholly or partly split with a former partner as a result of a Family Court decision.
Conclusion
This legislative instrument is compatible with human rights as it engages with, and promotes, the right to social security.
Repatriation Commission
Rule-Maker