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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family
Law Legislation Amendment (Superannuation) (Consequential Provisions) Bill
2002
No. ,
2002
(Attorney-General)
A
Bill for an Act to amend the Family Law Act 1975 and to deal with matters
consequential on the enactment of the Family Law Legislation Amendment
(Superannuation) Act 2001, and for related purposes
Contents
A Bill for an Act to amend the Family Law Act 1975
and to deal with matters consequential on the enactment of the Family Law
Legislation Amendment (Superannuation) Act 2001, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Family Law Legislation Amendment
(Superannuation) (Consequential Provisions) Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
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 on which this Act receives the Royal Assent |
|
|
2. Schedules 1 to 4 |
Immediately after the commencement of the Family Law Legislation
Amendment (Superannuation) Act 2001 |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
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repealed as set out in the applicable items in the Schedule concerned, and any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.
1 Section 90MD
Insert:
reversionary beneficiary means a person who becomes entitled
to a benefit in respect of a superannuation interest of a spouse, after the
spouse dies.
2 Subsection 90MX(3)
Omit “another person”, substitute “a person other than
the member spouse”.
3 Subsections 90MZ(1), (2) and
(3)
Omit “fund or RSA”, substitute “fund, approved deposit
fund, RSA or exempt public sector superannuation scheme within the meaning of
the SIS Act”.
4 Section 90MZC
Omit “date”, substitute “time”.
1 At the end of
section 21
Add:
(2) The regulations may also prescribe accrued benefit multiples for the
purposes of Part VIIIB of the Family Law Act 1975 or regulations
made under that Act.
1 Subsection 9(1) (definition of assessable
growth component)
Repeal the definition.
2 Subsection 9(1) (definition of assessable
period)
Repeal the definition.
3 Subsection 9(1) (definition of asset-tested
income stream (long term))
After “income stream” (first occurring), insert “that is
an asset-tested income stream (long term) under section 9D or an income
stream”.
4 Subsection 9(1) (definition of asset-tested
income stream (short term))
After “income stream” (first occurring), insert “that is
an asset-tested income stream (short term) under section 9D or an income
stream”.
5 Subsection 9(1)
Insert:
family law affected income stream has the meaning given by
subsection 9C(1).
6 Subsection 9(1) (after paragraph (f) of
the definition of income stream)
Insert:
or (fa) a family law affected income stream;
7 Subsection 9(1)
Insert:
original family law affected income stream has the meaning
given by subsection 9C(1).
8 Subsection 9(1)
Insert:
primary FLA income stream has the meaning given by subsection
9C(1).
9 Subsection 9(1) (definition of
realise)
Repeal the definition.
10 Subsection 9(1)
Insert:
secondary FLA income stream has the meaning given by
subsection 9C(1).
11 Subsections 9(10) and
(11)
Repeal the subsections.
12 After subparagraph
9A(2)(h)(iv)
Insert:
(iva) to the extent necessary to give effect to an entitlement of the
person’s spouse or former spouse under a payment split under
Part VIIIB of the Family Law Act 1975; or
13 After subparagraph
9B(2)(h)(iv)
Insert:
(iva) to the extent necessary to give effect to an entitlement of the
person’s spouse or former spouse under a payment split under
Part VIIIB of the Family Law Act 1975; or
14 After section 9B
Insert:
(1) If:
(a) a relevant income stream is acquired or purchased (original
family law affected income stream) by a person (member)
from a relevant superannuation fund; and
(b) the member’s spouse or former spouse (non-member)
becomes entitled to be paid some or all of that income stream under a payment
split under Part VIIIB of the Family Law Act 1975;
then so much (if any) of the income stream paid to the non-member as a
series of ongoing payments (secondary FLA income stream) and the
remainder (if any) of the income stream paid to the member as such a series of
payments (primary FLA income stream) are each family law
affected income streams.
(2) In subsection (1):
relevant income stream means an income stream of a kind
referred to in paragraph (a), (b) or (c) of the definition of income
stream in subsection 9(1).
relevant superannuation fund means:
(a) a superannuation fund within the meaning of the Superannuation
Industry (Supervision) Act 1993; or
(b) an approved deposit fund; or
(c) a retirement savings account within the meaning of the Retirement
Savings Accounts Act 1997.
If there is a primary FLA income stream
(1) If a primary FLA income stream is, or would be if the income stream
were assessed for the purposes of this Act:
(a) an asset-tested income stream (long term); or
(b) an asset-tested income stream (short term);
then a secondary FLA income stream to which it is related is also to be
treated as if it were assessed as an income stream of that kind.
If there is no primary FLA income stream
(2) If:
(a) there is no primary FLA income stream in relation to a secondary FLA
income stream; and
(b) had there been a primary FLA income stream in relation to that
secondary FLA income stream it would have been assessed for the purposes of this
Act as either an asset-tested income stream (long term) or an asset-tested
income stream (short term);
then the secondary FLA income stream is to be treated as if it were
assessed as an income stream of that kind.
15 Subdivision A of Division 1C of
Part 3.10
Repeal the Subdivision.
16 Subdivision B of Division 1C of
Part 3.10 (heading)
Repeal the heading, substitute:
17 Before section 1098 in Subdivision B of
Division 1C of Part 3.10
Insert:
This Subdivision applies to income streams that are not family law
affected income streams.
18 Sections 1098, 1099 and
1099A
Omit “asset-test exempt income stream”, substitute
“asset-test exempt income stream to which this Subdivision
applies”.
19 Sections 1099B, 1099C and
1099D
Omit “asset-tested income stream (long term)”, substitute
“asset-tested income stream (long term) to which this Subdivision
applies”.
20 At the end of Division 1C of
Part 3.10
Add:
This Subdivision applies to family law affected income streams.
For the purpose of working out the annual rate of ordinary income of a
person from an asset-test exempt income stream to which this Subdivision
applies, the person is taken to receive from that income stream each year the
amount worked out under:
(a) if the income stream is not a defined benefit income stream—the
guidelines determined by the Secretary for the purposes of this paragraph;
or
(b) if the income stream is a defined benefit income stream—the
guidelines determined by the Secretary for the purposes of this
paragraph.
For the purpose of working out the annual rate of ordinary income of a
person from an asset-tested income stream (long term) to which this Subdivision
applies, the person is taken to receive from that income stream each year the
amount worked out under:
(a) if the income stream is not a defined benefit income stream—the
guidelines determined by the Secretary for the purposes of this paragraph;
or
(b) if the income stream is a defined benefit income stream—the
guidelines determined by the Secretary for the purposes of this
paragraph.
A determination of guidelines under section 1099DB or 1099DC is a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
21 At the end of subsections 1119(1) and
1120(1)
Add “and it is not a family law affected income
stream”.
22 After section 1120
Insert:
(1) This section applies to family law affected income streams.
(2) The value of an income stream that is not a defined benefit income
stream is, for the purposes of the assets test, worked out in accordance with
guidelines determined by the Secretary for the purposes of this
subsection.
(3) The value of an income stream that is a defined benefit income stream
is, for the purposes of the assets test, worked out in accordance with
guidelines determined by the Secretary for the purposes of this
subsection.
(4) A determination of guidelines is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
1 Section 5 (index of
definitions)
Insert in their appropriate alphabetical positions, determined on a
letter-by-letter basis:
|
family law affected income stream |
5JC(1) |
|
original family law affected income stream |
5JC(1) |
|
primary FLA income stream |
5JC(1) |
|
secondary FLA income stream |
5JC(1) |
2 Section 5 (index of
definitions)
Repeal the following entries:
|
assessable growth component |
5J(1) |
|
assessable period |
5J(1) |
3 Subsection 5J(1) (definition of assessable
growth component)
Repeal the definition.
4 Subsection 5J(1) (definition of assessable
period)
Repeal the definition.
5 Subsection 5J(1) (definition of
asset-tested income stream (long term))
After “income stream” (first occurring), insert “that is
an asset-tested income stream (long term) under section 5JD or an income
stream”.
6 Subsection 5J(1) (definition of
asset-tested income stream (short term))
After “income stream” (first occurring), insert “that is
an asset-tested income stream (short term) under section 5JD or an income
stream”.
7 Subsection 5J(1)
Insert:
family law affected income stream has the meaning given by
subsection 5JC(1).
8 Subsection 5J(1) (after paragraph (f) of
the definition of income stream)
Insert:
or (fa) a family law affected income stream;
9 Subsection 5J(1)
Insert:
original family law affected income stream has the meaning
given by subsection 5JC(1).
10 Subsection 5J(1)
Insert:
primary FLA income stream has the meaning given by subsection
5JC(1).
11 Subsection 5J(1)
Insert:
secondary FLA income stream has the meaning given by
subsection 5JC(1).
12 After subparagraph
5JA(2)(h)(iv)
Insert:
(iva) to the extent necessary to give effect to an entitlement of the
person’s spouse or former spouse under a payment split under
Part VIIIB of the Family Law Act 1975; or
13 After subparagraph
5JB(2)(h)(iv)
Insert:
(iva) to the extent necessary to give effect to an entitlement of the
person’s spouse or former spouse under a payment split under
Part VIIIB of the Family Law Act 1975; or
14 After section 5JB
Insert:
(1) If:
(a) a relevant income stream is acquired or purchased (original
family law affected income stream) by a person (member)
from a relevant superannuation fund; and
(b) the member’s spouse or former spouse (non-member)
becomes entitled to be paid some or all of that income stream under a payment
split under Part VIIIB of the Family Law Act 1975;
then so much (if any) of the income stream paid to the non-member as a
series of ongoing payments (secondary FLA income stream) and the
remainder (if any) of the income stream paid to the member as such a series of
payments (primary FLA income stream) are each family law
affected income streams.
(2) In subsection (1):
relevant income stream means an income stream of a kind
referred to in paragraph (a), (b) or (c) of the definition of income
stream in subsection 5J(1).
relevant superannuation fund means:
(a) a superannuation fund within the meaning of the Superannuation
Industry (Supervision) Act 1993; or
(b) an approved deposit fund; or
(c) a retirement savings account within the meaning of the Retirement
Savings Accounts Act 1997.
If there is a primary FLA income stream
(1) If a primary FLA income stream is, or would be if the income stream
were assessed for the purposes of this Act:
(a) an asset-tested income stream (long term); or
(b) an asset-tested income stream (short term);
then the secondary FLA income stream to which it is related is also to be
treated as if it were assessed as an income stream of that kind.
If there is no primary FLA income stream
(2) If:
(a) there is no primary FLA income stream in relation to a secondary FLA
income stream; and
(b) had there been a primary FLA income stream in relation to that
secondary FLA income stream it would have been assessed for the purposes of this
Act as either an asset-tested income stream (long term) or an asset-tested
income stream (short term);
then the secondary FLA income stream is to be treated as if it were
assessed as an income stream of that kind.
15 Subdivision A of Division 4 of
Part IIIB
Repeal the Subdivision.
16 Subdivision B of Division 4 of
Part IIIB (heading)
Repeal the heading, substitute:
17 Before section 46T in Subdivision B of
Division 4 of Part IIIB
Insert:
This Subdivision applies to income streams that are not family law
affected income streams.
18 Sections 46T, 46U and
46V
Omit “asset-test exempt income stream”, substitute
“asset-test exempt income stream to which this Subdivision
applies”.
19 Sections 46W, 46X and
46Y
Omit “asset-tested income stream (long term)”, substitute
“asset-tested income stream (long term) to which this Subdivision
applies”.
20 At the end of Division 4 of
Part IIIB
Add:
This Subdivision applies to family law affected income streams.
For the purpose of working out the annual rate of ordinary income of a
person from an asset-test exempt income stream to which this Subdivision
applies, the person is taken to receive from that income stream each year the
amount worked out under:
(a) if the income stream is not a defined benefit income stream—the
guidelines determined by the Commission for the purposes of this paragraph;
or
(b) if the income stream is a defined benefit income stream—the
guidelines determined by the Commission for the purposes of this
paragraph.
For the purpose of working out the annual rate of ordinary income of a
person from an asset-tested income stream (long term) to which this Subdivision
applies, the person is taken to receive from that income stream each year the
amount worked out under:
(a) if the income stream is not a defined benefit income stream—the
guidelines determined by the Commission for the purposes of this paragraph;
or
(b) if the income stream is a defined benefit income stream—the
guidelines determined by the Commission for the purposes of this
paragraph.
A determination of guidelines under section 46ZA or 46ZB is a
disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901.
21 At the end of subsections 52A(1) and
52B(1)
Add “and it is not a family law affected income
stream”.
22 After section 52B
Insert:
(1) This section applies to family law affected income streams.
(2) The value of an income stream that is not a defined benefit income
stream is, for the purposes of the assets test, worked out in accordance with
guidelines determined by the Commission for the purposes of this
subsection.
(3) The value of an income stream that is a defined benefit income stream
is, for the purposes of the assets test, worked out in accordance with
guidelines determined by the Commission for the purposes of this
subsection.
(4) A determination of guidelines under this section is a disallowable
instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.