Constitution Amendment (Judicial Pensions) Act 2008

Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 PART 2—CONSTITUTION ACT 1975 3 3 New section 5A inserted 3 5A Definitions relating to pensions 3 4 Amendment of references to spouses 7 5 Amendment of section 7A to apply subsections (8) to (22) of section 83 8 6 Amendment of references to spouses 8 7 Amendment of section 83 to include child of partner 9 8 New subsections (8) to (22) inserted in section 83 9 PART 3—COUNTY COURT ACT 1958 16 9 New section 3AA inserted 16 3AA Definitions relating to pensions 16 10 References to spouses 20 11 Amendment of section 14 to include child of partner 21 12 New subsections (7) to (21) inserted in section 14 21 13 Amendment of references to spouses 27 14 Amendment of section 17B to include child of partner 28 15 Amendment of section 17B to apply subsections (7) to (21) of section 14 28 PART 4—SUPREME COURT ACT 1986 29 16 Amendment of references to spouses 29 17 Amendment of section 104A to include child of partner 29 18 Amendment of section 104A to apply subsections (8) to (22) of section 83 of the Constitution Act 1975 30 i -- 1 of 38 -- Section Page PART 5—AMENDMENTS TO OTHER ACTS 31 19 Amendment of sections 4 and 6 of the Attorney-General and Solicitor-General Act 1972 31 20 Amendment of section 10A of the Magistrates' Court Act 1989 31 21 Amendment of sections 18 and 35 of the Public Prosecutions Act 1994 31 PART 6—AMENDMENTS CONSEQUENTIAL ON THE RELATIONSHIPS ACT 2008 33 22 Amendment of Constitution Act 1975 33 23 Amendment of County Court Act 1958 34 PART 7—REPEAL OF AMENDING ACT 35 24 Repeal of amending Act 35 ═══════════════ ENDNOTES 36 ii -- 2 of 38 -- Victoria Constitution Amendment (Judicial Pensions) Act 2008† No. 23 of 2008 [Assented to 3 June 2008] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purpose The purpose of this Act is to— (a) amend the Constitution Act 1975, the County Court Act 1958, the Supreme Court Act 1986, the Attorney-General and Solicitor-General Act 1972, the Magistrates' Court Act 1989 and the Public Prosecutions Act 1994 to make 1 -- 3 of 38 -- Part 1—Preliminary Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 2 further provision in relation to judicial pensions; and (b) further amend the Constitution Act 1975 and the County Court Act 1958 consequential on the enactment of the Relationships Act 2008. 2 Commencement (1) Subject to subsection (2), this Act (except Part 6) comes into operation on the day after the day on which it receives the Royal Assent. (2) Part 6 comes into operation on the day on which section 73 of the Relationships Act 2008 comes into operation. __________________ 2 -- 4 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 3 PART 2—CONSTITUTION ACT 1975 3 New section 5A inserted After section 5 of the Constitution Act 1975 insert— See: Act No. 8750. Reprint No. 18 as at 31 October 2006 and amending Act No. 24/2007. LawToday: www. legislation. vic.gov.au "5A Definitions relating to pensions (1) For the purposes of section 83— approved deposit fund has the meaning given by section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; domestic partner of a person means a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender); eligible rollover fund means a fund within the meaning of section 242 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; eligible superannuation plan means— (a) a regulated superannuation fund; or (b) an approved deposit fund; or (c) an exempt public sector superannuation scheme; or (d) an RSA; 3 -- 5 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 3 exempt public sector superannuation scheme means a public sector superannuation scheme within the meaning of section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; flag lifting agreement has the meaning given by section 90MN of the Family Law Act 1975 of the Commonwealth; flagging order means an order mentioned in section 90MU(1) of the Family Law Act 1975 of the Commonwealth; interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; member means a Judge of the Supreme Court; member spouse, in relation to a superannuation interest, means the spouse who has the superannuation interest; non-member spouse, in relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest; partner of a person means— (a) in relation to a person who became entitled to benefits under this Act before the commencement of section 3 of the Constitution Amendment (Judicial Pensions) Act 2008— (i) the person's husband, wife, widower or widow; or 4 -- 6 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 3 (ii) a person of the opposite sex who, though not married to the person, in the opinion of the Minister lives with the person, or lived with the person at the date of the person's death, on a bona fide domestic basis as the person's husband or wife; (b) in any other case, the person's spouse or domestic partner; payment flag has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; regulated superannuation fund means a superannuation fund which complies with section 19 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; relevant condition of release means a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth; reversionary interest has the meaning given by section 90MF of the Family Law Act 1975 of the Commonwealth; RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; specified period means the period which is specified to be the specified period in the specified standards; 5 -- 7 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 3 splitting order means an order mentioned in section 90MT of the Family Law Act 1975 of the Commonwealth; spouse of a person means a person to whom the person is, or was at the time of the person's death, married; superannuation agreement has the meaning given by section 90MH of the Family Law Act 1975 of the Commonwealth; superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest; unsplittable interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; value at a particular time of the non- member spouse's entitlement in respect of the superannuation interest means the value as determined in accordance with regulation 14G(8) of the Family Law (Superannuation) Regulations 2001 of the Commonwealth; value of the member spouse's interest in the Fund means the value as determined in accordance with Part 5 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth. 6 -- 8 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 4 (2) For the purposes of the definition of domestic partner in subsection (1), in determining whether persons are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case. (3) For the purposes of section 83, a reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount.". 4 Amendment of references to spouses (1) In section 7A of the Constitution Act 1975— (a) in subsections (3), (4) and (5) for "spouse" (wherever occurring) substitute "partner"; (b) in subsection (3) for "spouse's death or re-marriage" substitute "partner's death or marriage or until the partner becomes the domestic partner of another person"; (c) in subsection (5) after "married" insert "or became the domestic partner of". (2) In sections 7B, 7C, 7D, 7E, 7F, 7G, 7H, 7I and 7J of the Constitution Act 1975 for "spouse" (wherever occurring) substitute "partner". (3) In sections 7D(1), 7E(2), 7H(2)(a) and 7J(3)(a)(ii) of the Constitution Act 1975 for "spouse's" (wherever occurring) substitute "partner's". 7 -- 9 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 5 5 Amendment of section 7A to apply subsections (8) to (22) of section 83 After section 7A(5) of the Constitution Act 1975 insert— "(5A) Subsections (8) to (22) of section 83 apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 83.". 6 Amendment of references to spouses (1) Insert the following heading to section 83 of the Constitution Act 1975— "As to pensions of Judges of the Supreme Court and their partners and children". (2) In section 83 of the Constitution Act 1975— (a) in subsections (2), (2B) and (7) for "spouse" (wherever occurring) substitute "partner"; (b) in subsection (2) for "remarriage" substitute "marriage or until the partner becomes the domestic partner of another person". (3) For section 83(3) of the Constitution Act 1975 substitute— "(3) Notwithstanding subsection (2), no pension is payable to the partner of any former Judge in any case where that partner married or became the domestic partner of the former Judge after that Judge's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the Judge immediately prior to that Judge's resignation or retirement.". 8 -- 10 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 7 (4) In sections 83AA, 83AB, 83AC, 83AD, 83AE, 83AF, 83AG, 83AH and 83AI of the Constitution Act 1975 for "spouse" (wherever occurring) substitute "partner". (5) In sections 83AD(2), 83AG(2) and 83AI(3) of the Constitution Act 1975 for "spouse's" (wherever occurring) substitute "partner's". (6) In the headings to sections 83AG, 83AH and 83AI of the Constitution Act 1975 for "spouses" (wherever occurring) substitute "partners". 7 Amendment of section 83 to include child of partner In section 83(2C) of the Constitution Act 1975 after "the judge" insert "or his or her partner". 8 New subsections (8) to (22) inserted in section 83 After section 83(7) of the Constitution Act 1975 insert— "(8) For the purpose of regulation 65 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary appointed by the Minister may from time to time determine the accrued benefit multiple. (9) Subject to subsections (13) and (14), the Minister must comply with subsections (11) and (12) if— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or (c) a splitting order— is served on the Minister under Part VIIIB of the Family Law Act 1975 of the Commonwealth. 9 -- 11 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 (10) Subsections (11) and (12) also apply to— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or (c) a splitting order— which was served on the Minister under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 3 of the Constitution Amendment (Judicial Pensions) Act 2008 if the non- member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (11) If the non-member spouse has not satisfied a relevant condition of release and the member spouse is not receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund— (a) transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse within the specified period; or (b) if the non-member spouse fails to nominate in writing an eligible superannuation plan within the specified period, transfer a lump sum amount equal to the value of the non- member spouse's entitlement in respect 10 -- 12 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister. (12) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Minister must if the value of the non- member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund— (a) if so requested in writing by the non- member spouse within the specified period, pay the non-member spouse a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment; or (b) if so requested in writing by the non- member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse; or (c) if no request is received from the non- member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister. 11 -- 13 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 (13) Subsections (11) and (12) do not apply if— (a) the member spouse's superannuation interest is an unsplittable interest; or (b) a payment flag is operating in respect of the member spouse's superannuation interest; or (c) the non-member spouse has served a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest; or (d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth. (14) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Minister may determine that subsections (11) and (12) do not apply. (15) If the non-member spouse serves a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest, the Minister may make a payment to the non- member spouse not exceeding the value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest less any payments previously made by the Minister to the non-member spouse in accordance with this section. 12 -- 14 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 (16) Despite anything to the contrary in this Act, if under subsection (11), (12) or (15) an amount is paid by the Minister to a non- member spouse or transferred by the Minister on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Minister in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Minister. (17) On the application of an eligible person within the meaning of section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister may provide information additional to the information required to be provided under section 90MZB of that Act if the Minister considers that the additional information is necessary to understand the member spouse's benefit entitlements. (18) The entitlement of a person to convert or commute a benefit or pension under this Act is not affected by the making of a payment or transfer under subsection (11), (12) or (15). (19) The Minister may charge reasonable fees in respect of— (a) a payment split; (b) a payment flag; (c) flag lifting under a flag lifting agreement that does not provide for a payment split; (d) an order under section 90MM of the Family Law Act 1975 of the Commonwealth terminating the operation of a payment flag; 13 -- 15 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 (e) an application under section 90MZB of the Family Law Act 1975 of the Commonwealth for information about a superannuation interest; (f) any other thing done by the Minister in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under subsection (17). (20) Fees charged under subsection (19) must not exceed the maximum levels of fees fixed by the Minister for the purposes of this section by notice published in the Government Gazette. (21) If the Minister charges a fee under subsection (19), the fee is payable— (a) unless paragraph (b) applies, in the case of subsection (19)(a), (19)(b), (19)(c), (19)(d) or (19)(f), by the member spouse and the non-member spouse in equal parts; (b) if the fee is in respect of a payment split under which the non-member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable, by the non-member spouse; (c) in the case of subsection (19)(e) or (19)(g), by the person who made the application. 14 -- 16 of 38 -- Part 2—Constitution Act 1975 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 8 (22) For the purposes of this section, the Minister may, with such modifications as are necessary, adopt any specified standards made by Order in Council under section 92A of the State Superannuation Act 1988 for the purposes of Part 7A of that Act.". __________________ 15 -- 17 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 9 PART 3—COUNTY COURT ACT 1958 9 New section 3AA inserted After section 3 of the County Court Act 1958 insert— See: Act No. 6230. Reprint No. 12 as at 28 April 2006 and amending Act Nos 22/2006, 50/2006, 24/2007, 26/2007 and 28/2007. LawToday: www. legislation. vic.gov.au "3AA Definitions relating to pensions (1) For the purposes of section 14— approved deposit fund has the meaning given by section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; domestic partner of a person means a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender); eligible rollover fund means a fund within the meaning of section 242 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; eligible superannuation plan means— (a) a regulated superannuation fund; or (b) an approved deposit fund; or (c) an exempt public sector superannuation scheme; or (d) an RSA; 16 -- 18 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 9 exempt public sector superannuation scheme means a public sector superannuation scheme within the meaning of section 10(1) of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; flag lifting agreement has the meaning given by section 90MN of the Family Law Act 1975 of the Commonwealth; flagging order means an order mentioned in section 90MU(1) of the Family Law Act 1975 of the Commonwealth; interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; member means a judge; member spouse, in relation to a superannuation interest, means the spouse who has the superannuation interest; non-member spouse, in relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest; partner of a person means— (a) in relation to a person who became entitled to benefits under this Act before the commencement of section 9 of the Constitution Amendment (Judicial Pensions) Act 2008— (i) the person's husband, wife, widower or widow; or 17 -- 19 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 9 (ii) a person of the opposite sex who, though not married to the person, in the opinion of the Minister lives with the person, or lived with the person at the date of the person's death, on a bona fide domestic basis as the person's husband or wife; (b) in any other case, the person's spouse or domestic partner; payment flag has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; regulated superannuation fund means a superannuation fund which complies with section 19 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; relevant condition of release means a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth; reversionary interest has the meaning given by section 90MF of the Family Law Act 1975 of the Commonwealth; RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; specified period means the period which is specified to be the specified period in the specified standards; 18 -- 20 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 9 splitting order means an order mentioned in section 90MT of the Family Law Act 1975 of the Commonwealth; spouse of a person means a person to whom the person is, or was at the time of the person's death, married; superannuation agreement has the meaning given by section 90MH of the Family Law Act 1975 of the Commonwealth; superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest; unsplittable interest has the meaning given by section 90MD of the Family Law Act 1975 of the Commonwealth; value at a particular time of the non- member spouse's entitlement in respect of the superannuation interest means the value as determined in accordance with regulation 14G(8) of the Family Law (Superannuation) Regulations 2001 of the Commonwealth; value of the member spouse's interest in the Fund means the value as determined in accordance with Part 5 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth. 19 -- 21 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 10 (2) For the purposes of the definition of domestic partner in subsection (1), in determining whether persons are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case. (3) For the purposes of section 14, a reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount.". 10 References to spouses (1) Insert the following heading to section 14 of the County Court Act 1958— "Provision for pensions to County Court judges and their partners". (2) In section 14 of the County Court Act 1958— (a) in subsections (3) and (3AB) for "spouse" (wherever occurring) substitute "partner"; (b) in subsection (3) for "remarriage" substitute "marriage or until the partner becomes the domestic partner of another person"; (c) for the proviso to subsection (3) substitute— "Provided that no pension is payable to the partner of any former judge in any case where that partner married or became the domestic partner of the former judge after that judge's resignation or retirement, unless in the case of marriage, the spouse was the domestic partner of the judge immediately prior to that judge's resignation or retirement.". 20 -- 22 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 11 (3) In sections 14AA, 14AB, 14AC, 14AD, 14AE, 14AF, 14AG, 14AH and 14AI of the County Court Act 1958 for "spouse" (wherever occurring) substitute "partner". (4) In sections 14AC(1), 14AD(2), 14AG(2)(a) and 14AI(3)(a) of the County Court Act 1958 for "spouse's" (wherever occurring) substitute "partner's". (5) In the heading to sections 14AG, 14AH and 14AI of the County Court Act 1958 for "spouses" (wherever occurring) substitute "partners". 11 Amendment of section 14 to include child of partner In section 14(3AC) of the County Court Act 1958 after "the judge" insert "or his or her partner". 12 New subsections (7) to (21) inserted in section 14 After section 14(6) of the County Court Act 1958 insert— "(7) For the purpose of regulation 65 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth, the Minister on the advice of an actuary appointed by the Minister may from time to time determine the accrued benefit multiple. (8) Subject to subsections (12) and (13), the Minister must comply with subsections (10) and (11) if— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or 21 -- 23 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 12 (c) a splitting order— is served on the Minister under Part VIIIB of the Family Law Act 1975 of the Commonwealth. (9) Subsections (10) and (11) also apply to— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or (c) a splitting order— which was served on the Minister under Part VIIIB of the Family Law Act 1975 of the Commonwealth before the commencement of section 9 of the Constitution Amendment (Judicial Pensions) Act 2008 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (10) If the non-member spouse has not satisfied a relevant condition of release and the member spouse is not receiving a pension under this Act, the Minister must if the value of the non-member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund— (a) transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse within the specified period; or 22 -- 24 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 12 (b) if the non-member spouse fails to nominate in writing an eligible superannuation plan within the specified period, transfer a lump sum amount equal to the value of the non- member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister. (11) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Minister must if the value of the non- member spouse's entitlement in respect of the superannuation interest at the particular time does not exceed the value of the member spouse's interest in the Fund— (a) if so requested in writing by the non- member spouse within the specified period, pay the non-member spouse a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment; or (b) if so requested in writing by the non- member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible superannuation plan nominated in writing by the non-member spouse; or 23 -- 25 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 12 (c) if no request is received from the non- member spouse within the specified period, transfer a lump sum amount equal to the value of the non-member spouse's entitlement in respect of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Minister. (12) Subsections (10) and (11) do not apply if— (a) the member spouse's superannuation interest is an unsplittable interest; or (b) a payment flag is operating in respect of the member spouse's superannuation interest; or (c) the non-member spouse has served a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest; or (d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Family Law (Superannuation) Regulations 2001 of the Commonwealth. (13) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Minister may determine that subsections (10) and (11) do not apply. 24 -- 26 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 12 (14) If the non-member spouse serves a waiver notice on the Minister under section 90MZA of the Family Law Act 1975 of the Commonwealth in respect of the member spouse's superannuation interest, the Minister may make a payment to the non- member spouse not exceeding the value at a particular time of the non-member spouse's entitlement in respect of the superannuation interest less any payments previously made by the Minister to the non-member spouse in accordance with this section. (15) Despite anything to the contrary in this Act, if under subsection (10), (11) or (14) an amount is paid by the Minister to a non- member spouse or transferred by the Minister on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Minister in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Minister. (16) On the application of an eligible person within the meaning of section 90MZB(8) of the Family Law Act 1975 of the Commonwealth, the Minister may provide information additional to the information required to be provided under section 90MZB of that Act if the Minister considers that the additional information is necessary to understand the member spouse's benefit entitlements. (17) The entitlement of a person to convert or commute a benefit or pension under this Act is not affected by the making of a payment or transfer under subsection (10), (11) or (14). 25 -- 27 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 12 (18) The Minister may charge reasonable fees in respect of— (a) a payment split; (b) a payment flag; (c) flag lifting under a flag lifting agreement that does not provide for a payment split; (d) an order under section 90MM of the Family Law Act 1975 of the Commonwealth terminating the operation of a payment flag; (e) an application under section 90MZB of the Family Law Act 1975 of the Commonwealth for information about a superannuation interest; (f) any other thing done by the Minister in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under subsection (16). (19) Fees charged under subsection (18) must not exceed the maximum levels of fees fixed by the Minister for the purposes of this section by notice published in the Government Gazette. (20) If the Minister charges a fee under subsection (18), the fee is payable— (a) unless paragraph (b) applies, in the case of subsection (18)(a), (18)(b), (18)(c), (18)(d) or (18)(f), by the member spouse and the non-member spouse in equal parts; 26 -- 28 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 13 (b) if the fee is in respect of a payment split under which the non-member spouse is entitled to be paid the whole of the amount of each splittable payment that becomes payable, by the non-member spouse; (c) in the case of subsection (18)(e) or (18)(g), by the person who made the application. (21) For the purposes of this section, the Minister may, with such modifications as are necessary, adopt any specified standards made by Order in Council under section 92A of the State Superannuation Act 1988 for the purposes of Part 7A of that Act.". 13 Amendment of references to spouses (1) Insert the following heading to section 17B of the County Court Act 1958— "Pension entitlements of masters, their partners and children". (2) In section 17B of the County Court Act 1958— (a) in subsections (2) and (3) for "spouse" (wherever occurring) substitute "partner"; (b) in subsection (2) for "remarriage" substitute "marriage or until the partner becomes the domestic partner of another person"; (c) in subsection (3) after "place" insert "or the domestic partnership was entered into". (3) In sections 17C, 17D, 17E, 17F, 17G, 17H, 17I, 17J and 17K of the County Court Act 1958 for "spouse" (wherever occurring) substitute "partner". 27 -- 29 of 38 -- Part 3—County Court Act 1958 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 14 (4) In sections 17E(1), 17F(2), 17I(2) and 17K(3) of the County Court Act 1958 for "spouse's" (wherever occurring) substitute "partner's". (5) In the heading to sections 17I, 17J and 17K of the County Court Act 1958 for "spouses" (wherever occurring) substitute "partners". 14 Amendment of section 17B to include child of partner In section 17B(5) of the County Court Act 1958 after "the master or former master" insert "or his or her partner". 15 Amendment of section 17B to apply subsections (7) to (21) of section 14 After section 17B(10) of the County Court Act 1958 insert— "(10A) Subsections (7) to (21) of section 14 apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 14.". __________________ 28 -- 30 of 38 -- Part 4—Supreme Court Act 1986 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 16 PART 4—SUPREME COURT ACT 1986 16 Amendment of references to spouses (1) Insert the following heading to section 104A of the Supreme Court Act 1986— See: Act No. 110/1986. Reprint No. 6 as at 28 April 2006 and amending Act Nos 48/2006 and 24/2007. LawToday: www. legislation. vic.gov.au "Pension entitlements of Masters, their partners and children". (2) In section 104A of the Supreme Court Act 1986— (a) in subsections (2) and (3) for "spouse" substitute "partner"; (b) in subsection (2) for "remarriage" substitute "marriage or until the partner becomes the domestic partner of another person"; (c) in subsection (3) after "place" insert "or the domestic partnership was entered into". (3) In sections 104B, 104C, 104D, 104E, 104F, 104G, 104H, 104I and 104J of the Supreme Court Act 1986 for "spouse" (wherever occurring) substitute "partner". (4) In sections 104D(1), 104E(2), 104H(2) and 104J(3) of the Supreme Court Act 1986 for "spouse's" (wherever occurring) substitute "partner's". (5) In the heading to sections 104H, 104I and 104J of the Supreme Court Act 1986 for "spouses" (wherever occurring) substitute "partners". 17 Amendment of section 104A to include child of partner In section 104A(5) of the Supreme Court Act 1986 after "the Master or former Master" insert "or his or her partner". 29 -- 31 of 38 -- Part 4—Supreme Court Act 1986 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 18 18 Amendment of section 104A to apply subsections (8) to (22) of section 83 of the Constitution Act 1975 After section 104A(10) of the Supreme Court Act 1986 insert— "(10A) Subsections (8) to (22) of section 83 of the Constitution Act 1975 apply with such modifications as are necessary to and in respect of a pension under this section in the same circumstances and to the same extent as those subsections apply to and in respect of a pension under section 83 of the Constitution Act 1975.". __________________ 30 -- 32 of 38 -- Part 5—Amendments to Other Acts Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 19 PART 5—AMENDMENTS TO OTHER ACTS 19 Amendment of sections 4 and 6 of the Attorney- General and Solicitor-General Act 1972 See: Act No. 8305. Reprint No. 2 as at 17 June 2003 and amending Act No. 79/2006. LawToday: www. legislation. vic.gov.au (1) In section 4(3)(b) of the Attorney-General and Solicitor-General Act 1972 after "his" (where twice occurring) insert "or her". (2) In section 6(1) of the Attorney-General and Solicitor-General Act 1972 for "spouse" (where twice occurring) substitute "partner". 20 Amendment of section 10A of the Magistrates' Court Act 1989 See: Act No. 81/1989. Reprint No. 13 as at 15 August 2007 and amending Act Nos 77/2004 (as amended by No. 36/2007), 50/2007, 52/2007 and 53/2007. LawToday: www. legislation. vic.gov.au In section 10A(1) of the Magistrates' Court Act 1989 for "spouse" (where twice occurring) substitute "partner". 21 Amendment of sections 18 and 35 of the Public Prosecutions Act 1994 See: Act No. 43/1994. Reprint No. 3 as at 21 March 2007. LawToday: www. legislation. vic.gov.au (1) Insert the following heading to section 18 of the Public Prosecutions Act 1994— "Pension of Chief Crown Prosecutor and of his or her partner and children". (2) In section 18(1) of the Public Prosecutions Act 1994 for "spouse" (where twice occurring) substitute "partner". 31 -- 33 of 38 -- Part 5—Amendments to Other Acts Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 21 (3) Insert the following heading to section 35 of the Public Prosecutions Act 1994— "Pensions of Senior Crown Prosecutors and of their partners and children". (4) In section 35(1) of the Public Prosecutions Act 1994 for "spouse" (where twice occurring) substitute "partner". __________________ 32 -- 34 of 38 -- Part 6—Amendments Consequential on the Relationships Act 2008 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 22 PART 6—AMENDMENTS CONSEQUENTIAL ON THE RELATIONSHIPS ACT 2008 22 Amendment of Constitution Act 1975 (1) In section 5A(1) of the Constitution Act 1975, for the definition of domestic partner substitute— "domestic partner of a person means— (a) a person who is, or was at the time of the person's death, in a registered relationship with the person; or (b) a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);". (2) For section 5A(2) of the Constitution Act 1975 substitute— "(2) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not or were not in a registered relationship are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.". 33 -- 35 of 38 -- Part 6—Amendments Consequential on the Relationships Act 2008 Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 23 23 Amendment of County Court Act 1958 (1) In section 3AA(1) of the County Court Act 1958, for the definition of domestic partner substitute— "domestic partner of a person means— (a) a person who is, or was at the time of the person's death, in a registered relationship with the person; or (b) a person to whom the person is not married but with whom, in the opinion of the Minister, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);". (2) For section 3AA(2) of the County Court Act 1958 substitute— "(2) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and (b) in determining whether persons who are not or were not in a registered relationship are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.". __________________ 34 -- 36 of 38 -- Part 7—Repeal of Amending Act Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 s. 24 PART 7—REPEAL OF AMENDING ACT 24 Repeal of amending Act This Act is repealed on 1 December 2009. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ 35 -- 37 of 38 -- Constitution Amendment (Judicial Pensions) Act 2008 No. 23 of 2008 Endnotes ENDNOTES † Minister's second reading speech— Legislative Assembly: 6 December 2007 Legislative Council: 8 May 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Constitution Act 1975, the County Court Act 1958, the Supreme Court Act 1986, the Attorney-General and Solicitor-General Act 1972, the Magistrates' Court Act 1989 and the Public Prosecutions Act 1994 and for other purposes." Constitution Act 1975: Special majorities: Legislative Assembly: 16 April 2008 Legislative Council: 27 May 2008 36 -- 38 of 38 --