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This is a Bill, not an Act. For current law, see the Acts databases.
Superannuation Legislation Amendment (Family Law) Bill 2002
First
Reading
$$T
2002
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first
time
Superannuation Legislation Amendment
(Family Law) Bill 2002
No. , 2002
(Finance and Administration)
A Bill for an Act to amend legislation relating to superannuation, and
for related purposes
Contents
A Bill for an Act to amend legislation relating to
superannuation, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Superannuation Legislation Amendment (Family
Law) Act 2002.
2 Commencement
(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.
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 4 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1 |
The 14th day after the day on which this Act receives the Royal
Assent |
|
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.
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Each Act that is specified in a Schedule to this Act is amended or repealed as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.
4 Application of amendments
(1) The family law
interest-splitting amendments apply to:
(a) any splitting agreement, or
splitting order, that has an operative time after the commencement of
Schedule 1; and
(b) a splitting agreement, or
splitting order, with an earlier operative time, if no benefits had become
payable before the commencement of Schedule 1 in respect of the
superannuation interest to which the agreement or order relates.
(2) In this section:
family law interest-splitting amendments means the amendments
made by Schedule 1, other than items 24 and 34.
Schedule 1Amendments
Add:
(5) Determinations may make
provision for, and in relation to, reducing a superannuation benefit under the
determinations in a case where a person becomes entitled to benefits under the
Military Superannuation and Benefits Act 1991 in circumstances mentioned
in subparagraph 5A(1)(b)(i) of that Act.
Note: Section 5A of the Military Superannuation and Benefits
Act 1991 provides for superannuation benefits for a non-member spouse in
respect of splitting agreements and splitting orders under the Family Law Act
1975.
(6) Reductions referred to in
subsection (5) are to be disregarded in applying
subsection (3A).
Defence Force Retirement
and Death Benefits Act 1973
Add:
(4) Reductions under
Division 3 of Part VIA are to be disregarded in applying
subsection (3) of this section.
3 After Part VI
Insert:
Part VIAFamily law superannuation splitting
Division 1Preliminary
49A Definitions
In this Part, unless the contrary intention appears:
associate pension means associate pension under
section 49B.
base amount means:
(a) for a splitting agreementthe
base amount specified in, or calculated under, the agreement; or
(b) for a splitting orderthe
amount allocated under subsection 90MT(4) of the Family Law Act
1975.
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 the Family Law Act 1975. 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 the Family Law Act
1975.
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
non-standard pension means a pension benefit other than
standard pension.
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.
Orders means Orders under section 49F.
original interest means a superannuation interest to which
section 49B applies.
payment split has the same meaning as in Part VIIIB of
the Family Law Act 1975.
scheme value means the amount determined under the
Orders.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split.
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
splitting percentage means:
(a) for a splitting agreementthe
percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the
Family Law Act 1975; or
(b) for a splitting orderthe
percentage specified in the order under subparagraph 90MT(1)(b)(i) of the
Family Law Act 1975.
standard pension means any of the following:
(a) retirement pay;
(b) invalidity benefit;
(c) pension under section 38
or 39;
(d) pension under
section 43A;
(e) associate pension.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
transfer amount means:
(a) if a splitting percentage
appliesthe amount calculated by multiplying the splitting percentage by the
greater of:
(i) the family law value;
and
(ii) the scheme value;
or
(b) if a base amount applies and
the scheme value is not more than the family law valuethe base amount;
or
(c) if a base amount applies and
the scheme value is more than the family law valuethe amount calculated using
the formula:
Division 2Benefits for non-member spouse
49B Associate pension for non-member spouse if operative time in payment
phase
(1) This section applies to a
superannuation interest (the original interest) if:
(a) the Board receives a splitting
agreement or splitting order in respect of the original interest; and
(b) the original interest is not
an entitlement to pension under section 42 or 43; and
(c) the member spouse and the
non-member spouse are both alive at the operative time; and
(d) if a base amount appliesthe
base amount at the operative time is not more than the family law value or the
scheme value.
(2) If, at the operative time,
standard pension is payable in respect of the original interest, then the
non-member spouse is entitled to associate pension from the operative time, at
the rate calculated under the Orders by reference to the transfer
amount.
Note: If standard pension is not payable at the operative time in
respect of the original interest, then the non-member spouse will be entitled to
benefits under the Military Superannuation and Benefits Act
1991.
49C Commutation of small associate pension
(1) If the annual rate of
associate pension to which the non-member spouse becomes entitled is less than
the amount determined under the Orders, then the non-member spouse may elect to
commute the pension.
(2) The election must be made in
writing to the Chairman not later than 3 months after the non-member spouse
becomes entitled to the pension.
(3) If the non-member spouse makes
the election, then the non-member spouse is entitled instead to a lump sum equal
to the transfer amount.
Division 3Reduction of benefits for member spouse
49D Operative time during growth phasereduction of later standard
pension
(1) If:
(a) at the operative time,
standard pension is not payable in respect of the original interest;
and
(b) after the operative time,
standard pension becomes payable to the member spouse in respect of the original
interest;
then the annual rate of that standard pension is reduced to the amount
calculated under the Orders.
Note: If the member spouse dies before becoming entitled to standard
pension, then subsection (1) will nevertheless result in an indirect
reduction of any widows pension that becomes payable. This happens because the
amount of the widows pension is based on the amount of invalidity pay (a
standard pension) that would have become payable to the member spouse at the
time of death.
(2) A reduction under this section
is to be disregarded in calculating the amount of any non-standard pension that
later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of pension under section 42 payable to a child of the member
spouse after the member spouses death.
49E Operative time during payment phasereduction of standard
pension
(1) If, at the operative time,
standard pension is payable to the member spouse in respect of the original
interest, then the annual rate of that pension is reduced to the amount
calculated under the Orders.
(2) A reduction under this section
is to be disregarded in calculating the amount of any non-standard pension that
later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of pension under section 42 payable to a child of the member
spouse after the member spouses death.
Division 4Miscellaneous
49F Ministerial Orders
(1) The Minister may make Orders
prescribing matters required or permitted by this Part to be
prescribed.
(2) An Order
is a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901.
(3) An Order is taken to be a
statutory rule for the purposes of the Statutory Rules Publication Act
1903.
Defence Forces Retirement Benefits Act
1948
Insert:
(1AA) A male person is not to be
treated as a male pensioner for the purposes of this section merely because the
person, at the time of his death, was receiving associate pension under
Part VIA.
5 At the end of section 58
Add:
(3) A person is not to be treated
as a pensioner for the purposes of this section merely because the person, at
the time of his or her death, was receiving associate pension under
Part VIA.
6 After Part V
Insert:
Part VIAFamily law superannuation splitting
Division 1Preliminary
80A Definitions
In this Part, unless the contrary intention appears:
associate pension means associate pension under
section 80B.
base amount means:
(a) for a splitting agreementthe
base amount specified in, or calculated under, the agreement; or
(b) for a splitting orderthe
amount allocated under subsection 90MT(4) of the Family Law Act
1975.
Chairman means the Chairman of the Authority.
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 the Family Law Act 1975. 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 the Family Law Act
1975.
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
non-standard pension means pension under this Act other than
standard pension.
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.
Orders means Orders under section 80E.
original interest means a superannuation interest to which
section 80B applies.
payment split has the same meaning as in Part VIIIB of
the Family Law Act 1975.
scheme value means the amount determined under the
Orders.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split.
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
splitting percentage means:
(a) for a splitting agreementthe
percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the
Family Law Act 1975; or
(b) for a splitting orderthe
percentage specified in the order under subparagraph 90MT(1)(b)(i) of the
Family Law Act 1975.
standard pension means any of the following:
(a) pension under section 38,
39, 41 or 43;
(b) invalidity benefit;
(c) pension under section 55
or 57;
(d) associate pension.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
transfer amount means:
(a) if a splitting percentage
appliesthe amount calculated by multiplying the splitting percentage by the
greater of:
(i) the family law value;
and
(ii) the scheme value;
or
(b) if a base amount applies and
the scheme value is not more than the family law valuethe base amount;
or
(c) if a base amount applies and
the scheme value is more than the family law valuethe amount calculated using
the formula:
Division 2Benefits for non-member spouse
80B Associate pension for non-member spouse
(1) This section applies to a
superannuation interest under this Act (the original interest)
if:
(a) the Chairman receives a
splitting agreement or splitting order in respect of the original interest;
and
(b) the original interest is not
an entitlement to pension under paragraph 57(1)(b), subsection 57(4) or (5) or
section 58; and
(c) the member spouse and the
non-member spouse are both alive at the operative time; and
(d) if a base amount appliesthe
base amount at the operative time is not more than the family law value or the
scheme value.
(2) The non-member spouse is
entitled to associate pension from the operative time, at the rate calculated
under the Orders by reference to the transfer amount.
80C Commutation of small associate pension
(1) If the annual rate of
associate pension to which the non-member spouse becomes entitled is less than
the amount determined under the Orders, then the non-member spouse may elect to
commute the pension.
(2) The election must be made in
writing to the Chairman not later than 3 months after the non-member spouse
becomes entitled to the pension.
(3) If the non-member spouse makes
the election, then the non-member spouse is entitled instead to a lump sum equal
to the transfer amount.
Division 3Reduction of benefits for member spouse
80D Reduction of standard pension
(1) The annual rate of standard
pension that is payable at the operative time in respect of the original
interest is reduced to the amount calculated under the Orders.
(2) A reduction under this section
is to be disregarded in calculating the amount of any non-standard pension that
later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of pension under paragraph 57(1)(b) payable in respect of a child of
the member spouse after the member spouses death.
Division 4Miscellaneous
80E Ministerial Orders
(1) The Minister may make Orders
prescribing matters required or permitted by this Part to be
prescribed.
(2) An Order is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(3) An Order is taken to be a
statutory rule for the purposes of the Statutory Rules Publication Act
1903.
7 Subsection 83(1) (at the end of the definition of
pension)
Add , but does not include associate pension under Part VIA of this
Act.
Military Superannuation and
Benefits Act 1991
Insert:
associate benefit means a benefit that is payable under
provisions of the Trust Deed that are authorised by section 5A.
9 At the end of Part 2
Add:
5A Amendments of Trust Deed to implement family law interest
splitting
(1) Without limiting subsection
5(1), amendments under that subsection:
(a) may provide that, when a
splitting agreement or splitting order is received by the Board in respect of a
superannuation interest under this Act:
(i) the non-member spouse is
entitled to benefits determined in accordance with the Rules; and
(ii) the benefits of the member
spouse are reduced in accordance with the Rules; and
(b) may provide that, when a
splitting agreement or splitting order is received by the Board in respect of a
superannuation interest under:
(i) section 52 of the
Defence Act 1903; or
(ii) the Defence Force
Retirement and Death Benefits Act 1973;
the non-member spouse is entitled to benefits determined in accordance with the
Rules; and
(c) may make any other provision
that is related to, or consequential on, provisions referred to in
paragraph (a) or (b).
(2) Subparagraph (1)(b)(ii)
does not apply in a case covered by subsection 49B(2) of the Defence Force
Retirement and Death Benefits Act 1973.
(3) Subsection 48(2) of the
Acts Interpretation Act 1901 does not apply to amendments referred to in
subsection (1) of this section.
(4) In this section:
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split (within the meaning of Part VIIIB of the
Family Law Act 1975).
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
10 After section 16
Insert:
16A Payments relating to associate benefits
(1) Where an associate benefit
becomes payable under the Rules, the Commonwealth must pay the benefit to such
person or persons as are appropriate under the Rules.
(2) The Board must pay to the
Commonwealth any amount that the Board is required under the Rules to pay to the
Commonwealth in respect of an associate benefit.
11 After subsection 46(1)
Insert:
(1A) A person who is, or has
ceased to be, an associate is subject to the Rules to the extent that they are
applicable in relation to the person. For this purpose, associate
means a person to whom an associate benefit is payable.
Insert:
pension includes associate pension under
section 93DB.
13 After subsection 47(1)
Insert:
(1A) This section does not apply
to an associate pension under Part VA that a deceased pensioner was
receiving at the time of his or her death.
14 At the end of section 61
Add:
(3) This section does not apply to
a pension that has been reduced under section 93DD.
15 After Part V
Insert:
Part VAFamily law superannuation splitting
Division 1Preliminary
93DA Definitions
In this Part, unless the contrary intention appears:
associate pension means an associate pension under
section 93DB.
base amount means:
(a) for a splitting agreementthe
base amount specified in, or calculated under, the agreement; or
(b) for a splitting orderthe
amount allocated under subsection 90MT(4) of the Family Law Act
1975.
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 the Family Law Act 1975. 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 the Family Law Act
1975.
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
non-standard pension means a pension under this Act other
than a standard pension.
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.
Orders means Orders under section 93DE.
original interest means a superannuation interest to which
section 93DB applies.
payment split has the same meaning as in Part VIIIB of
the Family Law Act 1975.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split.
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
splitting percentage means:
(a) for a splitting agreementthe
percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the
Family Law Act 1975; or
(b) for a splitting orderthe
percentage specified in the order under subparagraph 90MT(1)(b)(i) of the
Family Law Act 1975.
standard pension means any of the following:
(a) a pension under
section 37 or 38;
(b) a pension under
section 46, section 47 (other than subsection (4)),
section 48AA or section 48AB (other than in relation to subsection
47(4) or section 48);
(c) a benefit under subsection
48C(3) that consists of regular payments;
(d) an associate
pension.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
transfer amount means:
(a) if a splitting percentage
appliesthe amount calculated by multiplying the splitting percentage by the
family law value; or
(b) otherwisethe base
amount.
Division 2Benefits for non-member spouse
93DB Associate pension for non-member spouse
(1) This section applies to a
superannuation interest under this Act (the original interest)
if:
(a) the Commissioner receives a
splitting agreement or splitting order in respect of the original interest;
and
(b) the original interest is
not:
(i) an entitlement to a pension
under subsection 47(4) or section 48; or
(ii) an entitlement to deferred
benefits under section 119T; and
(c) the member spouse and the
non-member spouse are both alive at the operative time; and
(d) if a base amount appliesthe
base amount at the operative time is not more than the family law
value.
(2) The non-member spouse is
entitled to an associate pension from the operative time, at the rate calculated
under the Orders by reference to the transfer amount.
93DC Commutation of small associate pension
(1) If the annual rate of
associate pension to which the non-member spouse becomes entitled is less than
the amount determined under the Orders, then the non-member spouse may elect to
commute the pension.
(2) The election must be made in
writing to the Commissioner not later than 3 months after the non-member spouse
becomes entitled to the pension.
(3) If the non-member spouse makes
the election, then the non-member spouse is entitled instead to a lump sum equal
to the transfer amount.
Division 3Reduction of benefits for member spouse
93DD Reduction of standard pension
(1) The annual rate of the
standard pension that is payable at the operative time in respect of the
original interest is reduced to the amount calculated under the
Orders.
(2) The reduction under
subsection (1) is to be disregarded in calculating the amount of any
non-standard pension that later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of a pension under section 48 payable in respect of a child of
the member spouse after the member spouses death.
Division 4Miscellaneous
93DE Ministerial Orders
(1) The Minister may make Orders
prescribing matters required or permitted by this Part to be
prescribed.
(2) An Order is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(3) An Order is taken to be a
statutory rule for the purposes of the Statutory Rules Publication Act
1903.
Insert:
associate member means a person who is entitled to a benefit
under section 146MB or 146MC.
17 Subparagraph 27C(1)(a)(ii)
After eligible employees, insert and associate members.
18 Paragraph 27C(2)(d)
After eligible employees, insert and associate members.
19 Paragraph 54JA(1)(c)
After section 138, insert or 146MC.
20 At the end of section 80A
Add:
(4) Reductions under
Division 3 of Part IXB are to be disregarded in applying
subsection (3) of this section.
21 After subsection 110SE(3)
Insert:
(3A) Reductions under
Division 3 of Part IXB are to be disregarded in applying
subsection (3) of this section.
22 After Part IXA
Insert:
Part IXBFamily law superannuation splitting
Division 1Preliminary
146MA Definitions
In this Part, unless the contrary intention appears:
additional pension means any of the following:
(a) additional age retirement
pension referred to in section 55 or 136;
(b) additional early retirement
pension referred to in section 59 or 136;
(c) spouses additional pension
referred to in section 89, 93 or 136;
(d) associate additional
pension.
associate additional pension means associate additional
pension under section 146MB.
associate deferred benefits means associate deferred benefits
under section 146MC.
associate deferred pension means associate deferred pension
under section 146MC.
associate standard pension means associate standard pension
under section 146MB.
base amount means:
(a) for a splitting agreementthe
base amount specified in, or calculated under, the agreement; or
(b) for a splitting orderthe
amount allocated under subsection 90MT(4) of the Family Law Act
1975.
basic contributions amount means the amount determined under
the Orders.
basic contributions component means the amount calculated by
multiplying the basic contributions amount by the transfer factor.
employer contributions amount means the amount determined
under the Orders.
employer contributions component means the amount calculated
by multiplying the employer contributions amount by the transfer
factor.
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 the Family Law Act 1975. 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 the Family Law Act
1975.
funded component means the sum of the following
amounts:
(a) the basic contributions
component;
(b) the supplementary
contributions component;
(c) the employer contributions
component;
(d) the section 110SL
component;
(e) the section 130B
component.
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
non-standard pension means pension under this Act other
than:
(a) standard pension; or
(b) additional pension.
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.
Orders means Orders under section 146MH.
original interest means a superannuation interest to which
section 146MB applies.
payment split has the same meaning as in Part VIIIB of
the Family Law Act 1975.
scheme value means the amount determined under the
Orders.
section 110SL amount means the amount determined under
the Orders.
section 110SL component means the amount calculated by
multiplying the section 110SL amount by the transfer factor.
section 130B amount means the amount determined under
the Orders.
section 130B component means the amount calculated by
multiplying the section 130B amount by the transfer factor.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split.
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
splitting percentage means:
(a) for a splitting agreementthe
percentage specified in the agreement under subparagraph 90MJ(1)(c)(iii) of the
Family Law Act 1975; or
(b) for a splitting orderthe
percentage specified in the order under subparagraph 90MT(1)(b)(i) of the
Family Law Act 1975.
standard pension means any of the following:
(a) standard age retirement
pension referred to in section 55 or 136;
(b) standard early retirement
pension referred to in section 59 or 136;
(c) invalidity pension;
(d) spouses pension, other than
spouses additional pension referred to in section 89, 93 or 136;
(e) extra spouses
pension;
(f) associate standard
pension;
(g) associate deferred
pension.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
supplementary contributions amount means the amount
determined under the Orders.
supplementary contributions component means the amount
calculated by multiplying the supplementary contributions amount by the transfer
factor.
transfer amount means:
(a) if a splitting percentage
appliesthe amount calculated by multiplying the splitting percentage by the
greater of:
(i) the family law value;
and
(ii) the scheme value;
or
(b) if a base amount applies and
the scheme value is not more than the family law valuethe base amount;
or
(c) if a base amount applies and
the scheme value is more than the family law valuethe amount calculated using
the formula:
transfer factor means the number calculated by dividing the number of
whole dollars in the transfer amount by the number of whole dollars in the
scheme value.
unfunded component means the transfer amount reduced by the
funded component.
Division 2Benefits for non-member spouse
146MB Associate pension or deferred benefits for non-member
spouse
(1) This section applies to a
superannuation interest under this Act (the original interest)
if:
(a) the Board receives a splitting
agreement or splitting order in respect of the original interest; and
(b) the original interest is not
an entitlement to an orphan pension; and
(c) the member spouse and the
non-member spouse are both alive at the operative time; and
(d) if a base amount appliesthe
base amount at the operative time is not more than the family law value or the
scheme value.
Pension if operative time in payment phase
(2) If, at the operative time,
standard pension is payable in respect of the original interest, then the
non-member spouse is entitled to associate standard pension from the operative
time, at the rate calculated under the Orders by reference to the transfer
amount.
(3) If, at the operative time,
additional pension is payable in respect of the original interest, then the
non-member spouse is entitled to associate additional pension from the operative
time, at the rate calculated under the Orders by reference to the transfer
amount.
Deferred benefits if operative time in growth phase
(4) If, at the operative time,
standard pension is not payable in respect of the original interest, then the
non-member spouse is entitled to associate deferred benefits in accordance with
section 146MC.
146MC Associate deferred benefits
(1) Associate deferred benefits
consist of:
(a) a lump sum equal to the funded
component of the transfer amount, together with interest determined under
section 154A; and
(b) an associate deferred pension
at an annual rate calculated under the Orders by reference to the unfunded
component.
(2) The benefits become payable at
the later of:
(a) the operative time;
and
(b) the earliest of the following
dates:
(i) if the Board is satisfied that
the non-member spouse has, because of invalidity or physical or mental
incapacity, become totally and permanently incapacitated within the meaning of
Part IVAthe date that the Board considers to have been the date on which
the person became so incapacitated;
(ii) a date notified to the Board
under subsection (3);
(iii) the 65th anniversary of the
non-member spouses birth.
(3) The non-member spouse may give
a written notice to the Board specifying a date that is not earlier than the
55th anniversary of the non-member spouses birth. However, the notice has no
effect if, under the SIS Act, the associate deferred pension is not permitted to
be paid in cash to the non-member spouse from the specified date.
(4) The benefits are not payable
unless:
(a) a written application has been
made to the Board requesting payment of the benefits; and
(b) the applicant has given the
Board any information that is necessary to enable the Board to determine whether
the benefits are payable.
(5) If the non-member spouse dies
before the benefits become payable, the Board must pay the following amounts to
the legal personal representative or, if no legal personal representative can be
found, to any individual or individuals that the Board determines:
(a) the amount referred to in
paragraph (1)(a);
(b) an amount calculated under the
Orders in respect of the associate deferred pension.
(6) When the amount referred to in
paragraph (1)(a) becomes payable, or is paid under paragraph (5)(a),
an equal amount must be paid out of the Superannuation Fund to the
Commonwealth.
146MD Commutation of small associate pension
(1) If:
(a) the total annual rate of
associate standard pension and associate additional pension (if any) to which
the non-member spouse becomes entitled; or
(b) the annual rate of associate
deferred pension to which the non-member spouse becomes entitled;
is less than the amount determined under the Orders, then the non-member
spouse may elect to commute those pensions or that pension.
(2) The election must be made in
writing to the Board not later than 3 months after the non-member spouse becomes
entitled to the pensions or pension.
(3) If the non-member spouse makes
the election, then the non-member spouse is entitled instead to:
(a) if paragraph (1)(a)
appliesa lump sum equal to the transfer amount; or
(b) if paragraph (1)(b)
appliesa lump sum calculated under the Orders.
Division 3Reduction of benefits for member spouse
146ME Operative time during growth phasereduction of
benefits
(1) This section applies
if:
(a) at the operative time,
standard pension is not payable in respect of the original interest;
and
(b) the original interest is not
an entitlement to associate deferred benefits.
Reduction of accumulated contributions etc.
(2) The following amounts are
reduced in respect of the original interest:
(a) the accumulated basic
contributions are reduced by the sum of:
(i) the basic contributions
component; and
(ii) the interest accruing on that
component after the operative time;
(b) the accumulated supplementary
contributions are reduced by the sum of:
(i) the supplementary
contributions component; and
(ii) the interest accruing on that
component after the operative time;
(c) the accumulated employer
contributions are reduced by the sum of:
(i) the employer contributions
component; and
(ii) the interest accruing on that
component after the operative time;
(d) any benefit under
section 110SN is reduced by the sum of:
(i) the section 110SL
component; and
(ii) the interest accruing on that
component after the operative time;
(e) any benefit under
section 130D is reduced by the sum of:
(i) the section 130B
component; and
(ii) the interest accruing on that
component after the operative time.
Reduction of later salary-based pension
(3) If, after the operative time,
salary-based pension (the original pension) becomes payable to the
member spouse in respect of the original interest, then the annual rate of the
original pension is reduced to the amount worked out using the
formula:
Note: If the member spouse dies without becoming entitled to
salary-based pension, then subsection (3) will nevertheless result in an
indirect reduction of any spouses pension that becomes payable to a surviving
spouse. This happens because the amount of the spouses pension is based on the
amount of invalidity pension (salary-based pension) that would have become
payable to the member spouse at the time of death.
Multiple interest splits for same original interest
(4) If, before the original
pension becomes payable, the original interest has been split more than once
(that is to say, section 146MB has applied more than once), then, in
applying the formula in subsection (3), the reduction factor is to be
replaced by the number calculated using the following steps, based on the
chronological order of the operative times (starting with the
earliest):
(a) calculate a factor (the
interim factor) using the steps in paragraphs (a) to (c) of
the definition of reduction factor in
subsection (6);
(b) calculate a factor (the
interim factor) for the next split (the current
split), using the formula:
where:
unreduced current factor means the number calculated using the steps in
paragraphs (a) and (b) of the definition of reduction factor
in subsection (6);
(c) calculate a factor for each
remaining split (if any), using the formula in paragraph (b);
(d) add together the factors
calculated under paragraphs (a) to (c).
Reduction not to affect later non-standard pension
(5) A reduction under
subsection (3) is to be disregarded in calculating the amount of any
non-standard pension that later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of orphan pension payable in respect of a child of the member spouse
after the member spouses death.
(6) In this section:
age factor means:
(a) if the age in full years is 65
or more1; or
(b) if the age in full years is
less than 651 reduced by 0.02 per year from 64 years to 60 years, and then by
0.03 per year from 59 years to 31 years.
final salary amount means the number of whole dollars in the
member spouses final annual rate of salary.
original pension amount means the number of whole dollars in
the original pension.
reduction factor means the number worked out as
follows:
(a) calculate a number (the
service factor), by reference to the member spouses period of
contributory service before the operative time, by adding:
(i) for service that occurred
within the first 20 years:
(A) 0.02 for each full year;
and
(B) 0.02/365 for each left-over
day; and
(ii) for service that occurred
within the next 10 years:
(A) 0.01 for each full year;
and
(B) 0.01/365 for each left-over
day; and
(iii) for service that occurred
within the next 10 years:
(A) 0.0025 for each full year;
and
(B) 0.0025/365 for each left-over
day;
(b) if the original pension is age
retirement pension or early retirement pension, multiply the service factor by
the age factor (based on the member spouses age in full years at the time when
the original pension became payable);
(c) multiply the number worked out
under paragraphs (a) and (b) by the transfer factor.
salary-based pension means a pension that is calculated by
reference to the member spouses final annual rate of salary.
146MF Operative time during growth phasereduction where original
interest is entitlement to associate deferred benefits
(1) This section applies
if:
(a) at the operative time,
standard pension is not payable in respect of the original interest;
and
(b) the original interest is an
entitlement to associate deferred benefits.
(2) The deferred benefits, when
they become payable, are reduced in accordance with the Orders.
146MG Operative time during payment phasereduction of
pension
(1) If, at the operative time,
standard pension is payable in respect of the original interest, then the annual
rate of that pension is reduced to the amount calculated under the
Orders.
(2) If, at the operative time,
additional pension is payable in respect of the original interest, then the
annual rate of that pension is reduced to the amount calculated under the
Orders.
(3) A reduction under this section
is to be disregarded in calculating the amount of any non-standard pension that
later becomes payable.
Note: For example, the reduction will be disregarded in calculating
the amount of orphan pension payable in respect of the child of the member
spouse after the member spouses death.
Division 4Miscellaneous
146MH Ministerial Orders
(1) The Minister may make Orders
prescribing matters required or permitted by this Part to be
prescribed.
(2) An Order is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
(3) An Order is taken to be a
statutory rule for the purposes of the Statutory Rules Publication Act
1903.
23 Subsection 147(1) (after paragraph (e) of the definition of
pension to which this Part applies)
Insert:
(ea) associate additional pension
under Part IXB; or
24 Subsection 155C(3) (after paragraph (ca) of the definition of
eligible regulatory law)
Insert:
(cb) the Family Law Act
1975; or
25 Section 167AB
Omit a declaration, substitute an Order, declaration.
26 Section 167AB
Omit the declaration (wherever occurring), substitute the Order,
declaration.
27 At the end of section 168
Add:
(20) Regulations made within one
year after the commencement of this subsection for purposes arising from any
amendment of this Act made by the Superannuation Legislation Amendment
(Family Law) Act 2002 may commence on a day:
(a) earlier than the day on which
they are made; but
(b) not earlier than the
commencement of this subsection.
Insert:
associate benefit means a benefit that is payable under
provisions of the Trust Deed that are authorised by subsection 5A(1).
29 After section 5
Insert:
5A Amendments of Trust Deed to implement family law interest
splitting
(1) Without limiting subsection
5(1), amendments under that subsection:
(a) may provide that, when a
splitting agreement or splitting order is received by the Board in respect of a
superannuation interest under this Act:
(i) the non-member spouse is
entitled to benefits determined in accordance with the Rules; and
(ii) the benefits of the member
spouse are reduced in accordance with the Rules; and
(b) may make any other provision
that is related to, or consequential on, provisions referred to in
paragraph (a).
(2) Subsection 48(2) of the
Acts Interpretation Act 1901 does not apply to amendments referred to in
subsection (1) of this section.
(3) In this section:
member spouse has the same meaning as in Part VIIIB of
the Family Law Act 1975.
non-member spouse has the same meaning as in Part VIIIB
of the Family Law Act 1975.
splitting agreement means:
(a) a superannuation agreement
(within the meaning of Part VIIIB of the Family Law Act 1975);
or
(b) a flag lifting agreement
(within the meaning of Part VIIIB of the Family Law Act 1975) that
provides for a payment split (within the meaning of Part VIIIB of the
Family Law Act 1975).
splitting order has the same meaning as in Part VIIIB of
the Family Law Act 1975.
superannuation interest has the same meaning as in
Part VIIIB of the Family Law Act 1975.
30 After section 16
Insert:
16A Payments relating to associate benefits
(1) Where an associate benefit
becomes payable under the Rules, the Commonwealth must pay the benefit to such
person or persons as are appropriate under the Rules.
(2) The Board must pay to the
Commonwealth, out of the PSS Fund, any amount that the Board is required under
the Rules to pay to the Commonwealth in respect of an associate
benefit.
31 Section 18
Omit section 16, substitute section 16, 16A.
32 After paragraph 37(1)(b)
Insert:
(ba) in relation to the payment of
associate benefits; or
33 After subsection 42(1)
Insert:
(1A) A person who is, or has
ceased to be, an associate is subject to the Rules to the extent that they are
applicable in relation to the person. For this purpose, associate
means a person to whom an associate benefit is payable.
34 Subsection 49(3) (after paragraph (ca) of the definition of
eligible regulatory law)
Insert:
(cb) the Family Law Act
1975; or
$$A