Judges and Governors-General Legislation Amendment (Family Law) Act 2012

No. 143, 2012

Compilation No. 1

Compilation date: 15 March 2013

Includes amendments up to: Act No. 80, 2018

Registered: 5 September 2018

About this compilation

This compilation

This is a compilation of the Judges and Governors-General Legislation Amendment (Family Law) Act 2012 that shows the text of the law as amended and in force on 15 March 2013 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Schedule(s) 2

Schedule 1—Amendment of the Judges’ Pensions Act 1968 3

Part 1—Amendments 3

Part 2—Application and transitional provisions 20

Schedule 2—Amendment of the Governor-General Act 1974 24

Endnotes 35

Endnote 1—About the endnotes 35

Endnote 2—Abbreviation key 37

Endnote 3—Legislation history 38

Endnote 4—Amendment history 39

An Act to amend legislation relating to judges and Governors-General, and for other purposes

1 Short title

This Act may be cited as the Judges and Governors-General Legislation Amendment (Family Law) Act 2012.

2 Commencement 1

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information	Commencement information	Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	11 October 2012
2. Schedules 1 and 2	A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	15 March 2013 (see F2013L00390)

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Amendment of the Judges’ Pensions Act 1968 1 Subsection 4(1)

Insert:

accrued pension factor or APF has the meaning given by subsection 17AD(6).

2 Subsection 4(1)

Insert:

APF: see accrued pension factor.

3 Subsection 4(1)

Insert:

associate deferred pension means an associate deferred pension under subsection 17AA(3).

4 Subsection 4(1)

Insert:

associate immediate pension means an associate immediate pension under subsection 17AA(2).

5 Subsection 4(1)

Insert:

associate pension means an associate deferred pension or associate immediate pension.

6 Subsection 4(1)

Insert:

base amount means:

for a splitting agreement—the base amount specified in, or calculated under, the agreement; or

(b) for a splitting order—the amount allocated under subsection 90MT(4) of the Family Law Act 1975.

7 Subsection 4(1)

Insert:

family law value means the amount determined in accordance with regulations under the Family Law Act 1975 that apply for the purposes of paragraph 90MT(2)(a) of that Act. In applying those regulations, the relevant date is taken to be the date on which the operative time occurs.

Note: This amount is determined by applying those regulations, whether or not an order has been made under subsection 90MT(1) of that Act.

8 Subsection 4(1)

Insert:

mandatory retirement day of a person who has served as a Judge means the day on which the person would, under the terms of the person’s appointment as a Judge or otherwise, be required to retire.

9 Subsection 4(1)

Insert:

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

10 Subsection 4(1)

Insert:

member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975.

11 Subsection 4(1)

Insert:

non-member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975.

12 Subsection 4(1)

Insert:

non-standard pension means a pension under section 9, 10, 11 or 12.

13 Subsection 4(1)

Insert:

operative time, in relation to a splitting agreement or splitting order, means the time that is the operative time for the purposes of Part VIIIB of the Family Law Act 1975 in relation to a payment split under the agreement or order.

14 Subsection 4(1)

Insert:

original interest means a superannuation interest to which section 17AA applies.

15 Subsection 4(1)

Insert:

payment split has the same meaning as in Part VIIIB of the Family Law Act 1975.

16 Subsection 4(1)

Insert:

Pension Orders means Pension Orders made under subsection 17AI(1).

17 Subsection 4(1)

Insert:

permanently incapacitated has the meaning given by subsection 17AB(4).

18 Subsection 4(1)

Insert:

qualified for a pension: a person who has served as a Judge has qualified for a pension on a particular day if:

the person would have become entitled to a pension under subsection 6(1) if the person had retired on that day; or

the person would have become entitled to a pension under subsection 6(2D) if the person had ceased to hold office as a Judge on that day.

19 Subsection 4(1)

Insert:

qualifying service days has the meaning given by section 4AD.

20 Subsection 4(1)

Insert:

retirement pension means a pension under section 6.

21 Subsection 4(1)

Insert:

scheme value means the amount determined under the Pension Orders.

22 Subsection 4(1)

Insert:

splitting agreement means:

(a) a superannuation agreement (within the meaning of Family Law Act 1975); orPart VIIIB of the

a flag lifting agreement (within the meaning of that Part) that provides for a payment split.

23 Subsection 4(1)

Insert:

splitting order has the same meaning as in Part VIIIB of the Family Law Act 1975.

24 Subsection 4(1)

Insert:

splitting percentage means:

(a) for a splitting agreement—the percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the Family Law Act 1975; or

for a splitting order—the percentage specified in the order under subparagraph 90MT(1)(b)(i) of that Act.

25 Subsection 4(1)

Insert:

spouse pension means a pension under section 7.

26 Subsection 4(1)

Insert:

standard pension means:

a retirement pension; or

a spouse pension; or

a pension under section 8; or

an associate pension.

27 Subsection 4(1)

Insert:

superannuation interest has the same meaning as in Part VIIIB of the Family Law Act 1975.

28 Subsection 4(1)

Insert:

transfer amount means:

if a splitting percentage applies—the amount worked out by multiplying the splitting percentage by the greater of:

the family law value; and

the scheme value; or

if a base amount applies and the scheme value is not more than the family law value—the base amount; or

if a base amount applies and the scheme value is more than the family law value—the amount worked out using the formula:

29 Subsection 4(1)

Insert:

transfer factor means the number rounded to 6 decimal places (rounding up if the seventh decimal place is 5 or more) that is worked out by dividing the number of whole dollars in the transfer amount by the number of whole dollars in the scheme value.

30 After section 4AC

Insert:

4AD Qualifying service days

The qualifying service days of a person who has served as a Judge is the number of days worked out using the following formula:

where:

appointment age means the person’s age in days on the first day of the period of his or her service as a Judge.

non-service days means the number of days the person did not serve as a Judge in the period that:

qualification age means:

the person’s age in days on the first day the person so qualified; or

starts on the person’s first day of service as a Judge; and

ends on the day before:

(i) if paragraph (a) or (c) of the definition of qualification age in this section applies in relation to the person—the first day referred to in that paragraph; or

if a pension under subsection 6(2) has become payable to the person—the day on which the person retired; or

iii

otherwise—the day on which the person died.

if a pension under subsection 6(1) or (2D) has become payable to the person—the person’s age in days on the first day on which the person qualified for that pension; or

if a pension under subsection 6(2) has become payable to the person—the person’s age in days on the first day on which the person would have qualified for a pension under subsection 6(1) or (2D) if the person had continued to serve as a Judge until the person’s mandatory retirement day; or

if:

the person died before a pension became payable to the person; and

the person had qualified for a pension under subsection 6(1) on a day before the person died;

if the person died before a pension became payable to the person and subparagraph (c)(ii) does not apply—the person’s age in days on the first day on which the person would have qualified for a pension under subsection 6(1) or (2D) if the person had continued to serve as a Judge until the person’s mandatory retirement day.

31 Subsections 6A(2) and (4)

Omit “If the”, substitute “Subject to sections 16, 17AD and 17AH, if the”.

32 Subsection 6B(2)

Omit “The annual”, substitute “Subject to sections 16, 17AD and 17AH, the annual”.

33 Subsection 6C(3)

Omit “If a”, substitute “Subject to sections 16, 17AD and 17AH, if a”.

34 Subsection 7(1)

Omit “Where”, substitute “Subject to section 17AH, if”.

35 At the end of subsection 7(1)

Add:

Note: If section 17AD applies in relation to the spouse pension, the rate of the relevant pension may be reduced under subsection 17AD(4).

36 Subsection 8(1)

Omit “(1)”.

37 At the end of section 8

Add:

Note: The rate of the pension that would have been payable to the retired Judge may be reduced: see subsection 17AD(8) or 17AH(5).

38 Subsection 16(1)

After “be payable under this Act”, insert “(disregarding sections 17AD and 17AH)”.

39 After section 17

Insert:

17AA Associate pension for non-member spouse 1

(1) This section applies to a superannuation interest under this Act (the original interest) if:

the Secretary of the Department receives a splitting agreement or splitting order in respect of the original interest; and

the original interest is not an entitlement to a non-standard pension; and

the member spouse and the non-member spouse are both alive at the operative time; and

if a base amount applies—the base amount at the operative time is not more than the family law value or scheme value.

Note: If the same superannuation interest is subject to 2 or more payment splits, then this section applies separately in relation to each of those splits.

Immediate pension if operative time in payment phase

Deferred pension if operative time in growth phase

Rounding of transfer amount

If, at the operative time, a standard pension is payable in respect of the original interest, then the non-member spouse is entitled to an associate immediate pension from the operative time at the rate calculated under the Pension Orders by reference to the transfer amount.

If, at the operative time, a standard pension is not payable in respect of the original interest, then the non-member spouse is entitled to an associate deferred pension in accordance with section 17AB.

For the purposes of subsection (2), the transfer amount is to be rounded to the nearest cent (rounding 0.5 cents upwards).

17AB Associate deferred pension

Annual rate

When the pension is payable

Death of non-member spouse

The associate deferred pension is payable at an annual rate calculated under the Pension Orders by reference to the transfer amount.

For the purposes of subsection (1), the transfer amount is to be rounded to the nearest cent (rounding 0.5 cents upwards).

Subject to section 17AC, the pension is payable from the later of:

the operative time; and

the earliest of the following days:

if the non-member spouse is permanently incapacitated—the day that the Secretary of the Department considers to be the day on which the spouse became permanently incapacitated;

a day notified to the Secretary under subsection (5) of this section;

iii

the day on which the non-member spouse turns 65.

(4) The non-member spouse is permanently incapacitated if the Secretary is satisfied that the spouse is unlikely, because of ill-health (whether physical or mental), to engage in gainful employment for which the spouse is reasonably qualified by education, training or experience.

The non-member spouse may give a written notice to the Secretary specifying a day that is not before the day on which the non-member spouse turns 60.

If the non-member spouse dies before the pension becomes payable, an amount calculated under the Pension Orders must be paid to:

the legal personal representative of the spouse; or

if no such legal personal representative can be found—any individual or individuals that the Secretary determines.

An amount under subsection (6) is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

17AC Application for payment of associate deferred pension 1

The associate deferred pension is not payable to the non-member spouse unless:

a written application has been made to the Secretary of the Department requesting payment of the pension; and

the applicant has provided any information that is necessary to determine whether the pension is payable.

An application for payment on the ground of permanent incapacity must be accompanied by:

a certificate given by a medical practitioner nominated by, or on behalf of, the non-member spouse; and

such additional information or documents as the Secretary requires.

The certificate mentioned in paragraph (2)(a) must include a statement to the effect that, in the opinion of the medical practitioner, the non-member spouse is permanently incapacitated.

17AD Operative time during growth phase—reduction of retirement pension etc. 1

This section applies if:

at the operative time, a retirement pension is not payable to a Judge in respect of the original interest; and

after the operative time:

the retirement pension becomes payable to the Judge; or

the Judge dies before the retirement pension becomes payable and a spouse pension becomes payable to a spouse of the Judge; and

if:

the retirement pension is a pension under subsection 6(2); or

the Judge had not qualified for a pension under subsection 6(1) on a day before the Judge died;

the Judge would have qualified for a pension under subsection 6(1) or (2D) if the Judge had continued to serve as a Judge until the Judge’s mandatory retirement day.

Reduction of pensions

where:

pension rate means the annual rate of the retirement pension or relevant pension worked out under section 6A (disregarding subsection 6A(1)).

Note: If the original interest has been split more than once, see section 17AE for a modification of this formula.

Accrued pension factor

Effect of reduction on other pensions

then, for purposes of section 8, the rate of the pension that would have been payable to the Judge is the rate worked out for the retirement pension under subsection (2) of this section (disregarding subsection (3)).

In working out the annual rate of the retirement pension that is payable:

work out the annual rate of the pension under section 6A, 6B or 6C; and

reduce that rate by the amount worked out using the formula in subsection (5) of this section.

If section 16 applies in relation to the retirement pension, the annual rate worked out under paragraph (2)(a) must take into account a reduction of the amount of the pension under that section.

For the purposes of working out the rate of the spouse pension that is payable under section 7, the rate of the relevant pension in relation to the Judge is to be worked out as follows:

work out the annual rate of the relevant pension under section 6A, 6B or 6C;

reduce that rate by the amount worked out using the formula in subsection (5) of this section.

The formula is:

(6) The accrued pension factor for the Judge is:

if at the operative time the Judge was at least 60 and had served as a Judge for at least 10 years—1; or

otherwise—the number worked out by dividing the number of days the Judge had served as a Judge at the operative time by the qualifying service days of the Judge.

The number worked out under paragraph (6)(b) is to be rounded to 6 decimal places (rounding up if the seventh decimal place is 5 or more).

If:

the annual rate of a retirement pension of a retired Judge is reduced under subsection (2); and

a pension under section 8 later becomes payable because the Judge dies;

If the rate of a retirement pension or relevant pension is reduced under this section, the reduction is to be disregarded in working out the rate of any non-standard pension that later becomes payable.

17AE Reduction of retirement pension etc. if original interest has been split more than once 1

If:

section 17AD applies in relation to an original interest; and

before the retirement pension or spouse pension referred to in that section becomes payable, the original interest has been split more than once because section 17AA has previously applied;

the formula in subsection 17AD(5) is modified as set out in subsection (2) of this section.

Method statement

Step 1. Work out a factor (the interim factor) for the first split using the formula:

Step 2. Work out a factor (the interim factor) for the next split (the current split), using the formula:

Step 3. Work out a factor for each remaining split (if any), using the formula in step 2.

Step 4. Add together the factors worked out under steps 1 to 3.

Example: Assume 2 splits, with the first split having an APF of 0.4 and a transfer factor of 0.5 and the second split having an APF of 0.6 and a transfer factor of 0.5. Applying the above steps, the replacement number for the formula is 0.4, that is:

In applying the formula in subsection 17AD(5), the component (APF Transfer factor) is to be replaced by the number worked out using the following method statement, based on the chronological order of the operative times (starting with the earliest):

17AF Operative time during growth phase—reduction of benefit under section 12A

If:

the amount of the benefit (the benefit amount) is reduced, with effect from the operative time, by the amount calculated by multiplying the benefit amount, worked out at that time, by the transfer factor.

at the operative time, a standard pension is not payable in respect of the original interest; and

after the operative time, a benefit under section 12A becomes payable in respect of the original interest because of paragraph 12A(1)(a);

17AG Operative time during growth phase—reduction of associate deferred pension

If:

the annual rate of the associate deferred pension (when it becomes payable) is reduced to the amount calculated under the Pension Orders.

Note: Although an associate immediate pension becomes payable at the operative time, an associate deferred pension will often not become payable until some time after the operative time.

at the operative time, a standard pension is not payable in respect of the original interest; and

the original interest is an entitlement to an associate deferred pension;

17AH Operative time during payment phase—reduction of standard pension 1

This section applies if, at the operative time, a standard pension is payable in respect of the original interest.

Reduction of pensions

Effect of reduction on other pensions

then, for purposes of section 8, the rate of the pension that would have been payable to the Judge is the rate worked out for the retirement pension under subsection (3) of this section (disregarding subsection (4)).

If the standard pension is not a retirement pension, the rate of the pension is reduced to the amount calculated under the Pension Orders.

If the standard pension is a retirement pension, the annual rate of the pension is worked out as follows:

work out the annual rate of the pension under section 6A, 6B or 6C;

reduce that rate to the amount calculated under the Pension Orders.

If section 16 applies in relation to the retirement pension, the annual rate worked out under paragraph (3)(a) must take into account a reduction of the pension under that section.

If:

the annual rate of a retirement pension of a retired Judge is reduced under subsection (3); and

a pension under section 8 later becomes payable because the Judge dies;

If the annual rate of a retirement pension is reduced under this section, the reduction is to be disregarded in working out the rate of any non-standard pension that later becomes payable.

17AI Pension Orders 1

The Minister may, by legislative instrument, make Pension Orders providing for matters:

required or permitted by this Act to be provided; or

necessary or convenient to be provided in order to carry out or give effect to this Act.

(2) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to the Pension Orders.

17AJ Compensation for acquisition of property 1

If the operation of sections 17AA to 17AH, or the Pension Orders, would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.

In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

40 At the end of paragraphs 17A(a) to (c)

Add “or”.

41 At the end of section 17A

Add:

; or (f) a decision of the Secretary of the Department under subparagraph 17AB(3)(b)(i); or

a decision of the Secretary of the Department under subsection 17AB(4); or

a decision of the Secretary of the Department under paragraph 17AB(6)(b).

42 Subsection 21(1)

Omit “(1)”.

43 Subsection 21(2)

Repeal the subsection.

44 Definitions

In this Part:

commencement time means the time when this Schedule commences.

Note: This amount is determined by applying those regulations, whether or not an order has been made under subsection 90MT(1) of that Act.

item 48 orders means the orders made under item 48 of this Schedule.

Judges’ Pensions Act means the Judges’ Pensions Act 1968.

transfer amount means the amount rounded to the nearest cent (rounding 0.5 cents upwards) that is worked out by multiplying the splitting percentage by the greater of:

the family law value; and

the amount determined under the item 48 orders.

45 Application—operative time after commencement time

The amendments made by this Schedule apply in relation to a splitting agreement or splitting order if the operative time in relation to the agreement or order is at or after the commencement time.

46 Application—operative time before commencement time and Judge not in receipt of pension 1

Subject to subitem (2), the amendments made by this Schedule also apply in relation to a splitting agreement or splitting order if:

the operative time in relation to the agreement or order is before the commencement time; and

the agreement or order relates to a superannuation interest under the Judges’ Pensions Act of a Judge who was appointed before the commencement time; and

immediately before the commencement time, the Judge is not in receipt of a retirement pension in respect of the superannuation interest.

The following provisions apply in relation to the splitting agreement or splitting order as if a reference in the provisions to the operative time were a reference to the commencement time:

sections 17AA, 17AB, 17AD (other than subsection (6)) and 17AF of the Judges’ Pensions Act, as inserted by this Schedule;

(b) the definition of family law value in subsection 4(1) of that Act, as inserted by this Schedule.

47 Transitional—operative time before commencement time and retired Judge in receipt of pension 1

This item applies if:

a splitting agreement or splitting order relates to a superannuation interest under the Judges’ Pension Act of a retired Judge who was appointed as a Judge before the commencement time; and

the operative time in relation to the agreement or order is before the commencement time; and

immediately before the commencement time, the retired Judge is in receipt of a retirement pension in respect of the superannuation interest; and

the retired Judge, and the non-member spouse in relation to the superannuation interest, are both alive at the commencement time.

Immediate transitional pension for non-member spouse

Reduction of retirement pension

No reduction of other pensions

Splitting of immediate transitional pension

the Judges’ Pensions Act, as amended by this Schedule, applies in relation to the pension as if the pension were:

The non-member spouse in relation to the superannuation interest is entitled to an immediate transitional pension from the commencement time at the rate calculated under the item 48 orders by reference to the transfer amount.

An immediate transitional pension is due daily but is payable monthly.

An immediate transitional pension is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

The annual rate of the retirement pension payable under the Judges’ Pension Act is reduced from the commencement time to the amount calculated under the item 48 orders.

However, if the non-member spouse dies before the retired Judge, subitem (5) stops applying in relation to the retirement pension.

The reduced annual rate of the retirement pension under subitem (5) is to be disregarded in working out the rate of the following pensions if they become payable after the commencement time:

a pension under section 8 of the Judges’ Pensions Act;

a non-standard pension.

If:

a splitting agreement or splitting order is made after the commencement time; and

the agreement or order relates to an immediate transitional pension;

a superannuation interest under that Act; and

a standard pension payable in respect of that interest.

48 Minister may make orders 1

The Minister may, by legislative instrument, make orders providing for matters:

required or permitted by this Part to be provided; or

necessary or convenient to be provided in order to carry out or give effect to this Part.

(2) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to orders made under subitem (1).

49 Compensation for acquisition of property 1

If the operation of this Part, or the item 48 orders, would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

In this item:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Amendment of the Governor-General Act 1974 1 Subsection 2A(2)

Insert:

Allowance Orders means Allowance Orders made under subsection 4AH(1).

2 Subsection 2A(2)

Insert:

associate allowance means an associate deferred allowance or associate immediate allowance.

3 Subsection 2A(2)

Insert:

associate deferred allowance means an associate deferred allowance under subsection 4AB(3).

4 Subsection 2A(2)

Insert:

associate immediate allowance means an associate immediate allowance under subsection 4AB(2).

5 Subsection 2A(2)

Insert:

base amount means:

for a splitting agreement—the base amount specified in, or calculated under, the agreement; or

(b) for a splitting order—the amount allocated under subsection 90MT(4) of the Family Law Act 1975.

6 Subsection 2A(2)

Insert:

Note: This amount is determined by applying those regulations, whether or not an order has been made under subsection 90MT(1) of that Act.

7 Subsection 2A(2)

Insert:

8 Subsection 2A(2)

Insert:

member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975.

9 Subsection 2A(2)

Insert:

non-member spouse has the same meaning as in Part VIIIB of the Family Law Act 1975.

10 Subsection 2A(2)

Insert:

11 Subsection 2A(2)

Insert:

original interest means a superannuation interest to which section 4AB applies.

12 Subsection 2A(2)

Insert:

payment split has the same meaning as in Part VIIIB of the Family Law Act 1975.

13 Subsection 2A(2)

Insert:

permanently incapacitated has the meaning given by subsection 4AC(4).

14 Subsection 2A(2)

Insert:

retirement allowance means an allowance under subsection 4(1).

15 Subsection 2A(2)

Insert:

scheme value means the amount determined under the Allowance Orders.

16 Subsection 2A(2)

Insert:

splitting agreement means:

(a) a superannuation agreement (within the meaning of Family Law Act 1975); orPart VIIIB of the

a flag lifting agreement (within the meaning of that Part) that provides for a payment split.

17 Subsection 2A(2)

Insert:

splitting order has the same meaning as in Part VIIIB of the Family Law Act 1975.

18 Subsection 2A(2)

Insert:

splitting percentage means:

(a) for a splitting agreement—the percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the Family Law Act 1975; or

for a splitting order—the percentage specified in the order under subparagraph 90MT(1)(b)(i) of that Act.

19 Subsection 2A(2)

Insert:

spouse allowance means an allowance under subsection 4(2).

20 Subsection 2A(2)

Insert:

standard allowance means:

a retirement allowance; or

a spouse allowance; or

an associate allowance.

21 Subsection 2A(2)

Insert:

superannuation interest has the same meaning as in Part VIIIB of the Family Law Act 1975.

22 Subsection 2A(2)

Insert:

transfer amount means:

if a splitting percentage applies—the amount worked out by multiplying the splitting percentage by the greater of:

the family law value; and

the scheme value; or

if a base amount applies and the scheme value is not more than the family law value—the base amount; or

if a base amount applies and the scheme value is more than the family law value—the amount worked out using the formula:

23 Subsection 2A(2)

Insert:

24 Subsection 4(1)

After “subsection (4)”, insert “and sections 4AE and 4AG”.

25 Subsection 4(2)

Omit “section 4A”, substitute “sections 4A, 4AE and 4AG”.

26 After section 4AA

Insert:

4AB Associate allowance for non-member spouse 1

(1) This section applies to a superannuation interest under this Act (the original interest) if:

the Finance Secretary receives a splitting agreement or splitting order in respect of the original interest; and

the member spouse and the non-member spouse are both alive at the operative time; and

if a base amount applies—the base amount at the operative time is not more than the family law value or scheme value.

Note: If the same superannuation interest is subject to 2 or more payment splits, then this section applies separately in relation to each of those splits.

Associate immediate allowance

Associate deferred allowance

Rounding of transfer amount

If, at the operative time, a standard allowance is payable in respect of the original interest, then the non-member spouse is entitled to an associate immediate allowance from the operative time at the rate calculated under the Allowance Orders by reference to the transfer amount.

If, at the operative time, a standard allowance is not payable in respect of the original interest, then the non-member spouse is entitled to an associate deferred allowance in accordance with section 4AC.

For the purposes of subsection (2), the transfer amount is to be rounded to the nearest cent (rounding 0.5 cents upwards).

4AC Associate deferred allowance

Annual rate

When the allowance is payable

Death of non-member spouse

The associate deferred allowance is payable at an annual rate calculated under the Allowance Orders by reference to the transfer amount.

For the purposes of subsection (1), the transfer amount is to be rounded to the nearest cent (rounding 0.5 cents upwards).

Subject to section 4AD, the allowance is payable from the later of:

the operative time; and

the earliest of the following days:

if the non-member spouse is permanently incapacitated—the day that the Finance Secretary considers to be the day on which the spouse became permanently incapacitated;

a day notified to the Finance Secretary under subsection (5) of this section;

iii

the day on which the non-member spouse turns 65.

(4) The non-member spouse is permanently incapacitated if the Finance Secretary is satisfied that the spouse is unlikely, because of ill-health (whether physical or mental), to engage in gainful employment for which the spouse is reasonably qualified by education, training or experience.

The non-member spouse may give a written notice to the Finance Secretary specifying a day that is not before the day on which the non-member spouse turns 60.

If the non-member spouse dies before the allowance becomes payable, an amount calculated under the Allowance Orders must be paid to:

the legal personal representative of the spouse; or

if no such legal personal representative can be found—any individual or individuals that the Finance Secretary determines.

An amount under subsection (6) is payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

4AD Application for payment of associate deferred allowance 1

The associate deferred allowance is not payable to the non-member spouse unless:

a written application has been made to the Finance Secretary requesting payment of the allowance; and

the applicant has provided any information that is necessary to determine whether the allowance is payable.

An application for payment on the ground of permanent incapacity must be accompanied by:

a certificate given by a medical practitioner nominated by, or on behalf of, the non-member spouse; and

such additional information or documents as the Finance Secretary requires.

The certificate mentioned in paragraph (2)(a) must include a statement to the effect that, in the opinion of the medical practitioner, the non-member spouse is permanently incapacitated.

4AE Reduction of retirement and spouse allowances payable after operative time 1

This section applies if:

at the operative time, a retirement allowance is not payable to a person in respect of the original interest; and

after the operative time:

the retirement allowance becomes payable to the person; or

the person dies before the retirement allowance becomes payable and a spouse allowance becomes payable to a spouse of the person.

Reduction of allowances

Note: The rate of the spouse allowance may be reduced under subsection 4(4).

Effect of reduction of retirement allowance

then, for the purposes of working out the rate of the spouse allowance under paragraph 4(3)(b), the rate applicable under paragraph 4(3)(a) is reduced to the amount calculated under the Allowance Orders.

Note: The rate of the spouse allowance may be reduced under subsection 4(4).

In working out the rate of the retirement allowance that is payable:

work out the rate of the allowance under section 4 (disregarding subsection 4(4)); and

reduce that rate to the amount calculated under the Allowance Orders.

For the purposes of working out the rate of the spouse allowance under paragraph 4(3)(b), the rate applicable under paragraph 4(3)(a) is reduced to the amount calculated under the Allowance Orders.

If:

the rate of a retirement allowance payable to a person is reduced under subsection (2); and

a spouse allowance later becomes payable because the person dies;

4AF Reduction of associate deferred allowance payable after operative time

If:

the annual rate of the associate deferred allowance (when it becomes payable) is reduced to the amount calculated under the Allowance Orders.

Note: Although an associate immediate allowance becomes payable at the operative time, an associate deferred allowance will often not become payable until some time after the operative time.

at the operative time, a standard allowance is not payable in respect of the original interest; and

the original interest is an entitlement to an associate deferred allowance;

4AG Reduction of standard allowance payable at operative time 1

This section applies if, at the operative time, a standard allowance is payable in respect of the original interest.

Reduction of allowances

Effect of reduction of retirement allowance

Note: The rate of the spouse allowance may be reduced under subsection 4(4).

If the standard allowance is not a retirement allowance, the rate of the allowance is reduced to the amount calculated under the Allowance Orders.

If the standard allowance is a retirement allowance, the rate of the allowance is worked out as follows:

work out the rate of the allowance under section 4 (disregarding subsection 4(4));

reduce that rate to the amount calculated under the Allowance Orders.

If:

the rate of a retirement allowance payable to a person is reduced under subsection (3); and

a spouse allowance later becomes payable because the person dies;

4AH Allowance Orders 1

The Minister may, by legislative instrument, make Allowance Orders providing for matters:

required or permitted by this Act to be provided; or

necessary or convenient to be provided in order to carry out or give effect to this Act.

(2) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to the Allowance Orders.

4AI Compensation for acquisition of property 1

If the operation of sections 4AB to 4AG, or the Allowance Orders, would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

27 At the end of section 4B

Add:

; or (e) subparagraph 4AC(3)(b)(i); or

subsection 4AC(4); or

paragraph 4AC(6)(b).

28 Section 5

Omit “section 4”, substitute “this Act”.

29 Application provision

The amendments made by this Schedule apply in relation to a splitting agreement or splitting order if the operative time in relation to the agreement or order is after the commencement of this item.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history