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

Schedule 2 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:

                     (a)  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:

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.

7  Subsection 2A(2)

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.

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:

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.

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 Part VIIIB of the Family Law Act 1975 ); or

                     (b)  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

                     (b)  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)  a retirement allowance; or

                     (b)  a spouse allowance; or

                     (c)  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:

                     (a)  if a splitting percentage applies—the amount worked out 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 value—the base amount; or

                     (c)  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:

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.

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

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

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

                     (c)  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

             (2)  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.

Associate deferred allowance

             (3)  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.

Rounding of transfer amount

             (4)  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

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

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

When the allowance is payable

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

                     (a)  the operative time; and

                     (b)  the earliest of the following days:

                              (i)  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;

                             (ii)  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.

             (5)  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.

Death of non-member spouse

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

                     (a)  the legal personal representative of the spouse; or

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

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

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

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

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

                     (b)  such additional information or documents as the Finance Secretary requires.

             (3)  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:

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

                     (b)  after the operative time:

                              (i)  the retirement allowance becomes payable to the person; or

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

Reduction of allowances

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

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

                     (b)  reduce that rate to the amount calculated under the Allowance Orders.

             (3)  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).

Effect of reduction of retirement allowance

             (4)  If:

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

                     (b)  a spouse allowance later becomes payable because the person dies;

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).

4AF   Reduction of associate deferred allowance payable after operative time

                   If:

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

                     (b)  the original interest is an entitlement to an associate deferred allowance;

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.

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

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

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

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

                     (b)  reduce that rate to the amount calculated under the Allowance Orders.

Effect of reduction of retirement allowance

             (4)  If:

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

                     (b)  a spouse allowance later becomes payable because the person dies;

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).

4AH   Allowance Orders

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

                     (a)  required or permitted by this Act to be provided; or

                     (b)  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.

             (2)  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.

             (3)  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

                      (f)  subsection 4AC(4); or

                     (g)  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.