Before I deal with the detail of this bill, I wish to draw attention to the fact that we are now debating this Bill in the Senate well over a year after the commencement of the new arrangements for including superannuation in family law property settlements 28 December 2002.

Time and time again this bill has been listed for debate in the senate yet with regular monotony the government withdraws the Bill despite the distress and hardship the delay is causing to couples affected by it.

This delay in the necessary changes to the Commonwealth schemes is unacceptable. It is in fact a form a discrimination against those members of the Commonwealth Superannuation schemes to which it applies.

It leaves fund members currently engaged in property settlements in an uncertain position, delaying property settlements or the implementation of property settlements, causing further angst to those already suffering the unavoidable stress of marriage breakdown.

And there was no reason to justify the delay. The bill is has the full support of the opposition despite the fact that Labor would have preferred to amend the legislation to deal with an anomaly in the legislation which I will deal with later. In the interest of all those people waiting for this Bill to become Law Labor has withdrawn that amendment.

What the delay demonstrates is the Liberal government's insensitivity to those individuals facing the consequence of marriage breakdown and illustrates its inability to draft effective legislation that deals adequately, and in a timely manner, with the matter in hand.

The government should have had the foresight to ensure that this legislation was prepared and passed in conjunction with the Family Law Legislation Amendment (Superannuation) Bill which passed in June 2001. The government had eighteen months before the provisions in this Bill became operative on 28 December 2002—ample time to get this very necessary complementary legislation in place.

The Bill the Superannuation Legislation Amendment (Family Law) Bill 2002, amends several Acts governing the Commonwealth's military and civilian superannuation schemes, to accommodate changes made to the Family Law Act 1975 in relation to superannuation benefits and marriage breakdown.

The new family law superannuation regime came into effect on 28 December 2002 following the passage of the Family Law Legislation Amendment (Superannuation) Bill, in June 2001. This legislation was passed with Labor's full support. The new regime is intended to provide a more equitable and flexible system for the division of property under the Family Law Act.

The rules are designed to ensure that superannuation interests form part of the property of married couples and provide for those interests to be split between the parties in a property settlement following a marriage breakdown. Bringing superannuation entitlements into the property of the marriage is an extremely important change as in many cases superannuation is the only major asset, aside from the family home, for many couples.

The new regime provides rules to assist in the determination of the manner in which an interest in a fund can be dealt with in the event of marriage breakdown by the Family Court or by the parties to the marriage breakdown.

The rules we are considering today deal with the determinations of interests on marriage breakdown where the fund concerned is one of a number Commonwealth superannuation funds, and the extent of the benefits and those to whom they may be paid, are determined in the legislation governing each particular fund.

The new family superannuation regime allows three alternative methods for determining the separate entitlements of the fund member and the non-member spouse. These three alternative approaches have been considered for applying the new family law regime to the Commonwealth schemes. These were the default option, a percentage only split and a separate interest approach.

Allowing the difficulties inherent in the Commonwealth Schemes which provide a number of different possible benefit outcomes, this Bill opts for the separate interest approach whereby a separate interest is created for the non-member at the time of the split equal to a base amount determined by the agreement of the parties or order of the court. A non-member spouse's benefits will be indexed in a similar way to a member's benefits.

Where the separate interest is created during the growth phase of the member's benefit, the benefit to the non-member will become payable when the non-member satisfies a relevant condition of release (such as age retirement, death or permanent disability).

Where the separate interest is created when the member is in receipt of a pension benefit, the non-member benefit can become payable immediately.

These provisions are to ensure that the retirement income objectives of superannuation are met. The immediate splitting of pension payments is appropriate because had the couple remained married they could have shared the pension payment.

Given the uncertain nature of benefits under the Commonwealth scheme this could result in some separated couples receiving a combined benefit of more or less than what they would have received had they not separated, but despite the potential for this, it is preferable to the alternative prospect of one spouse receiving little or no benefits at all.

More importantly this approach, by allowing a clean break between the parties, reduces the dependence of the non-member spouse on the payment of benefits to the member spouse.

Labor will support this Bill because the separate interest approach it applies is most likely the alternative options to provide fairness, flexibility and certainty for all parties.

One important feature of this is that where the non member spouse has an entitlement to a share of a pension, that entitlement belongs to the non-member spouse and is not contingent on the survival of the former spouse.

Unfortunately this is not then situation for all couples who have entered into agreements or sought orders since the introduction of the new family law regime.

The totally unnecessary delay in passing this legislation through the Senate has resulted in serious consequences for some couples. Because this bill will not apply to any family law agreement or order relating to a superannuation asset that, although made after 28 December 2002, but implemented prior to the date of assent of this Bill, those non-member spouses who are receiving part of their former spouses pension will lose their pension on the death of the former spouse.

This is clearly unjust—it may only apply to a small number of widows and widowers—but it is serious problem which will result in a serious financial loss for them.

Yet the government will not accept an amendment to change this situation because according to the government if they accept this there is a risk that previous calculations will not accord with the provisions of this Bill and some individuals will be forced to return money to a fund and others might have a claim to compensation.

Surely the government should have thought of this when they drafted this legislation. Or at least the government should have expedited the legislation through both houses so that there was little opportunity for couples to fall into this hole—the gap between 28 December 2002 and the date of assent to this Bill.

Labor has adopted a bipartisan approach to the complex task of ensuring this new family law regime operates in a fair and efficient manner and will continue to do so, supporting the provisions of this Bill despite its inequities.

But it appears the government, though aware of the inequity arising out of failure to make this Bill retrospective, will not be addressed.

One can only assume that this government would prefer to discriminate against some unfortunate couples than face the embarrassment of having to deal with the return of money to funds of those who have been overpaid or compensation to those who have been underpaid and all because of the Liberal government's inability to get the appropriate legislation in place at the appropriate time—despite the fact that they had ample time to do so before this new family law superannuation rules became operative.

Labor will support the Bill in its existing form but only to avoid the possibility of further couples falling into this hole the government has created.

But Labor calls on the government to review this legislation once it is in place with a view to alleviating the position of those unfortunate widows and widowers who will lose their pension payments on the death of the former spouse.

But I call on the government to review this legislation once it is place with the view to alleviating the position of those unfortunate individuals who will lose their pension of the death of a former spouse.