Superannuation Acts (Family Law) Act 2003

Victorian Legislation and Parliamentary Documents i Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—EMERGENCY SERVICES SUPERANNUATION ACT 1986 3 3. Definitions 3 4. Accrued benefits 3 5. New Part 4A inserted 4 PART 4A—FAMILY LAW PROVISIONS 4 22E. Definitions 4 22F. Obligation on Board 7 22G. Reduction of benefit or accrued benefit entitlement 10 22H. Board may provide additional information 10 22I. Charging of fees 11 6. Section 26 substituted 12 26. Assignment or charging of interest 12 7. Specified standards 13 PART 3—GOVERNMENT SUPERANNUATION ACT 1999 14 8. Family Law provisions 14 9. MTA Superannuation Fund 14 PART 4—PARLIAMENTARY SALARIES AND SUPERANNUATION ACT 1968 16 10. New Division 3A inserted in Part II 16 Division 3A—Family Law Provisions 16 21CA. Definitions 16 21CB. Accrued benefit multiple 19 21CC. Obligation on Parliamentary Trustee 19 21CD. Reduction of benefit 22 -- 1 of 78 -- Victorian Legislation and Parliamentary Documents Section Page ii 21CE. Parliamentary Trustee may provide additional information 23 21CF. Commutation rights not affected 23 21CG. Charging of fees 23 11. Specified standards 25 PART 5—STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 26 12. Membership of scheme 26 13. Calculation of benefit 26 14. Minimum benefit 26 15. New Part IVA inserted 27 PART IVA—FAMILY LAW PROVISIONS 27 66AA. Definitions 27 66AB. Accrued benefit multiple 30 66AC. Obligation on Board 30 66AD. Reduction of benefit or accrued benefit entitlement 33 66AE. Board may provide additional information 34 66AF. Commutation rights not affected 34 66AG. Charging of fees 34 16. Section 70A substituted 36 70A. Assignment or charging of interest 36 17. Specified standards 36 PART 6—STATE SUPERANNUATION ACT 1988 38 18. Definition of "secondment" 38 19. What does "partially dependent" mean? 38 20. Amendment of section 16A 38 21. Original scheme members 39 22. New section 27A inserted 39 27A. Application of Family Law provisions to pensioners 39 23. Benefit on retirement of new scheme member 40 24. New Part 7A inserted 40 PART 7A—FAMILY LAW PROVISIONS 40 59AA. Definitions 40 59AB. Accrued benefit multiple 43 59AC. Obligation on Board 43 59AD. Reduction of benefit or accrued benefit entitlement 47 59AE. Board may provide additional information 47 59AF. Commutation rights not affected 47 59AG. Charging of fees 47 25. Members of approved superannuation schemes 49 26. Minimum benefit 49 27. Amendment of section 77B 49 -- 2 of 78 -- Victorian Legislation and Parliamentary Documents Section Page iii 28. Section 88 substituted 50 88. Assignment or charging of interest 50 29. Specified standards 50 30. MWCESF 51 31. Water Industry Superannuation Fund 51 32. Port of Melbourne Authority Superannuation Fund 52 PART 7—SUPERANNUATION (PORTABILITY) ACT 1989 53 33. New definitions inserted 53 34. Family Law provisions 56 9AA. Obligation on administrators 56 9AB. Reduction of deferred retirement benefit or transfer amount 59 9AC. Administrators may provide additional information 60 9AD. Charging of fees 60 PART 8—TRANSPORT SUPERANNUATION ACT 1988 62 35. What does "partially dependent" mean? 62 36. Benefit on retirement 62 37. Minimum benefit 62 38. New Part 7A inserted 63 PART 7A—FAMILY LAW PROVISIONS 63 36AA. Definitions 63 36AB. Accrued benefit multiple 66 36AC. Obligation on Board 66 36AD. Reduction of benefit or accrued benefit entitlement 69 36AE. Board may provide additional information 70 36AF. Commutation rights not affected 70 36AG. Charging of fees 70 39. Section 49 substituted 72 49. Assignment or charging of interest 72 40. Specified standards 72 PART 9—UNCLAIMED MONEYS ACT 1962 74 41. Family Law provisions 74 42. Statement of unclaimed superannuation benefits 74 ═══════════════ ENDNOTES 75 -- 3 of 78 -- Victorian Legislation and Parliamentary Documents 1 Superannuation Acts (Family Law) Act 2003† [Assented to 14 October 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to amend specified Superannuation Acts in relation to Family Law provisions and miscellaneous other matters. Victoria No. 70 of 2003 -- 4 of 78 -- Victorian Legislation and Parliamentary Documents Part 1—Preliminary Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 2 2. Commencement (1) Subject to this section, this Act comes into operation on the day after the day on which it receives the Royal Assent. (2) Sections 7(1), 11(1), 17(1), 29(1) and 40(1) are deemed to have come into operation on 30 June 1996. (3) Section 12 is deemed to have come into operation on 1 January 1994. (4) Section 21 is deemed to have come into operation on 16 June 1996. (5) Section 27 is deemed to have come into operation on 6 December 2000. __________________ s. 2 -- 5 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 3 PART 2—EMERGENCY SERVICES SUPERANNUATION ACT 1986 3. Definitions In section 3(1) of the Emergency Services Superannuation Act 1986, in the definition of "nominee", after paragraph (b) insert— "; or (c) any person over the age of 18 years who is not in the opinion of the Board a full-time student and to whom the contributor has been the natural or adoptive parent.". 4. Accrued benefits After section 20C(2) of the Emergency Services Superannuation Act 1986 insert— "(2A) For the purposes of sub-section (2), if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 4A or otherwise, the maximum accrued benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". s. 3 See: Act No. 94/1986. Reprint No. 4 as at 1 December 1999 and amending Act Nos 29/2000, 69/2000, 95/2000 and 27/2001. LawToday: www.dms. dpc.vic. gov.au -- 6 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 4 5. New Part 4A inserted After Part 4 of the Emergency Services Superannuation Act 1986 insert— 'PART 4A—FAMILY LAW PROVISIONS 22E. Definitions (1) In this Part— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "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; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; s. 5 -- 7 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 5 "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; s. 5 -- 8 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 6 "specified period" means the period which is specified to be the specified period in the specified standards; "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "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 Commonwealth Family Law Act 1975; "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 Commonwealth Family Law (Superannuation) Regulations 2001; "value of the member spouse's interest in the Scheme" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (2) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount. s. 5 -- 9 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 7 22F. Obligation on Board (1) Subject to sub-sections (5) and (6), the Board must comply with this section 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975. (2) This section also applies 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 5 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (3) 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 Board 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 Scheme— s. 5 -- 10 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 8 (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 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Board. (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Board 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 Scheme— (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 s. 5 -- 11 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 9 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 Board. (5) Sub-sections (3) and (4) 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 Board under section 90MZA of the Commonwealth Family Law Act 1975 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 Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Board may determine that sub-sections (3) and (4) do not apply. s. 5 -- 12 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 10 (7) If the non-member spouse serves a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the Board 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 Board to the non-member spouse in accordance with this section. 22G. Reduction of benefit or accrued benefit entitlement Despite anything to the contrary in this Act, if under section 22F an amount is paid by the Board to a non-member spouse or transferred by the Board on behalf of a non-member spouse, the accrued benefit of a member spouse must be reduced by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board. 22H. Board may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the Board may provide information additional to the information required to be provided under section 90MZB of that Act if the Board considers that the additional information is necessary to understand the Scheme or the member spouse's benefit entitlements. s. 5 -- 13 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 11 22I. Charging of fees (1) The Board 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 Commonwealth Family Law Act 1975 terminating the operation of a payment flag; (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Board in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 22H. (2) Fees charged under sub-section (1) 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. s. 5 -- 14 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 12 (3) If the Board charges a fee under sub- section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; or (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; or (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.'. 6. Section 26 substituted For section 26 of the Emergency Services Superannuation Act 1986 substitute— "26. Assignment or charging of interest (1) Subject to sub-section (2), an interest of a member or beneficiary in a benefit under this Act— (a) must not be in any way assigned, charged, attached or passed by operation of law to any other person; and (b) is not an asset for the payment of any debt or liability. (2) Sub-section (1) does not apply to or in respect of any assignment, charge, payment or transfer permitted expressly or by necessary implication by this Act.". s. 6 -- 15 of 78 -- Victorian Legislation and Parliamentary Documents Part 2—Emergency Services Superannuation Act 1986 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 13 7. Specified standards (1) In section 29A(1)(a) of the Emergency Services Superannuation Act 1986 after "contributions" insert "and benefits". (2) After section 29A(1)(c) of the Emergency Services Superannuation Act 1986 insert— "(ca) specify processes and requirements in respect of the administration and operation of Part 4A; and (cb) specify the benefits and entitlements of non- members spouses under Part 4A; and". (3) After section 29A(2) of the Emergency Services Superannuation Act 1986 insert— "(3) Any Order in Council made before the enactment of the Superannuation Acts (Family Law) Act 2003 has force and effect as if it had been made under this section as amended by section 7(1) of that Act.". __________________ s. 7 -- 16 of 78 -- Victorian Legislation and Parliamentary Documents Part 3—Government Superannuation Act 1999 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 14 PART 3—GOVERNMENT SUPERANNUATION ACT 1999 8. Family Law provisions (1) After section 6(1)(d) of the Government Superannuation Act 1999 insert— "(da) ensure that the provisions of Part VIIIB of the Commonwealth Family Law Act 1975 and regulations made under that Act for the purposes of that Part are complied with.". (2) After section 6(7) of the Government Superannuation Act 1999 insert— "(7A) If any provision of Part VIIIB of the Commonwealth Family Law Act 1975 or of any regulations made under that Act for the purposes of that Part is inconsistent with this Act, any regulations under this Act or the governing instrument of an administered scheme, the Office is to be taken to have complied with this Act, the regulations or the governing instrument of the administered scheme if the Office has complied with the provision of Part VIIIB of the Commonwealth Family Law Act 1975 or of any regulations made under that Act for the purposes of that Part.". 9. MTA Superannuation Fund (1) After section 42(1) of the Government Superannuation Act 1999 insert— "(1A) The provisions of Part 7A of the Transport Superannuation Act 1988, with such modifications as are necessary to make those provisions consistent with the governing instrument of the MTA Superannuation Fund, are deemed to form part of the s. 8 See: Act No. 8/1999. Reprint No. 1 as at 10 May 2001. LawToday: www.dms. dpc.vic. gov.au -- 17 of 78 -- Victorian Legislation and Parliamentary Documents Part 3—Government Superannuation Act 1999 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 15 governing instrument of the MTA Superannuation Fund.". (2) After section 42(8)(c) of the Government Superannuation Act 1999 insert— "; and (d) Part 7A of the Transport Superannuation Act 1988.". __________________ s. 9 -- 18 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 16 PART 4—PARLIAMENTARY SALARIES AND SUPERANNUATION ACT 1968 10. New Division 3A inserted in Part II In Part II of the Parliamentary Salaries and Superannuation Act 1968, after Division 3 insert— 'Division 3A—Family Law Provisions 21CA. Definitions (1) In this Division— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "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; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; s. 10 See: Act No. 7723/1968. Reprint No. 7 as at 31 May 2000 and amending Act Nos 29/2000, 74/2000, 27/2001, 72/2001 and 3/2003. LawToday: www.dms. dpc.vic. gov.au -- 19 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 17 "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; s. 10 -- 20 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 18 "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; "specified period" means the period which is specified to be the specified period in the specified standards; "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "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 Commonwealth Family Law Act 1975; "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 Commonwealth Family Law (Superannuation) Regulations 2001; s. 10 -- 21 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 19 "value of the member spouse's interest in the Fund" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (2) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount. 21CB. Accrued benefit multiple For the purpose of regulation 65 of the Commonwealth Family Law (Superannuation) Regulations 2001, the Parliamentary Trustee on the advice of an actuary appointed by the Parliamentary Trustee may from time to time determine the accrued benefit multiple. 21CC. Obligation on Parliamentary Trustee (1) Subject to sub-sections (5) and (6), the Parliamentary Trustee must comply with this section 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 Parliamentary Trustee under Part VIIIB of the Commonwealth Family Law Act 1975. (2) This section also applies to— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or s. 10 -- 22 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 20 (c) a splitting order— which was served on the Parliamentary Trustee under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 10 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (3) 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 Parliamentary Trustee 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 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Parliamentary Trustee. s. 10 -- 23 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 21 (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Parliamentary Trustee 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 Parliamentary Trustee. (5) Sub-sections (3) and (4) do not apply if— (a) the member spouse's superannuation interest is an unsplittable interest; or s. 10 -- 24 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 22 (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 Board under section 90MZA of the Commonwealth Family Law Act 1975 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 Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Parliamentary Trustee may determine that sub-sections (3) and (4) do not apply. (7) If the non-member spouse serves a waiver notice on the Parliamentary Trustee under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the Parliamentary Trustee 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 Parliamentary Trustee to the non-member spouse in accordance with this section. 21CD. Reduction of benefit Despite anything to the contrary in this Act, if under section 21CC an amount is paid by the Parliamentary Trustee to a non-member s. 10 -- 25 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 23 spouse or transferred by the Parliamentary Trustee on behalf of a non-member spouse, the benefit of a member spouse must be reduced by the Parliamentary Trustee in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Parliamentary Trustee. 21CE. Parliamentary Trustee may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the Parliamentary Trustee may provide information additional to the information required to be provided under section 90MZB of that Act if the Parliamentary Trustee considers that the additional information is necessary to understand the Fund or the member spouse's benefit entitlements. 21CF. Commutation rights not affected 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 this Division. 21CG. Charging of fees (1) The Parliamentary Trustee 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; s. 10 -- 26 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 24 (d) an order under section 90MM of the Commonwealth Family Law Act 1975 terminating the operation of a payment flag; (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Parliamentary Trustee in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 21CE. (2) Fees charged under sub-section (1) 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. (3) If the Parliamentary Trustee charges a fee under sub-section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; and (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; or (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.'. s. 10 -- 27 of 78 -- Victorian Legislation and Parliamentary Documents Part 4—Parliamentary Salaries and Superannuation Act 1968 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 25 11. Specified standards (1) In section 24C(1)(a) of the Parliamentary Salaries and Superannuation Act 1968 after "contributions" insert "and benefits". (2) After section 24C(1)(c) of the Parliamentary Salaries and Superannuation Act 1968 insert— "(ca) specify processes and requirements in respect of the administration and operation of Division 3A; and (cb) specify the benefits and entitlements of non- members spouses under Division 3A; and". (3) After section 24C(2) of the Parliamentary Salaries and Superannuation Act 1968 insert— "(3) Any Order in Council made before the enactment of the Superannuation Acts (Family Law) Act 2003 has force and effect as if it had been made under this section as amended by section 11(1) of that Act.". __________________ s. 11 -- 28 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 26 PART 5—STATE EMPLOYEES RETIREMENT BENEFITS ACT 1979 12. Membership of scheme After section 2(5) of the State Employees Retirement Benefits Act 1979 insert— "(5A) A person cannot become a member on or after the commencement of section 72 of the Public Sector Superannuation (Administration) Act 1993.". 13. Calculation of benefit After section 40(6) of the State Employees Retirement Benefits Act 1979 insert— "(7) For the purposes of sub-section (6), if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part IVA or otherwise, the maximum accrued benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 14. Minimum benefit At the end of section 65 of the State Employees Retirement Benefits Act 1979 insert— "(2) If a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law s. 12 See: Act No. 9363/1979. Reprint No. 4 as at 28 October 1999 and amending Act Nos 29/2000, 74/2000, 95/2000, 27/2001 and 73/2001. LawToday: www.dms. dpc.vic. gov.au -- 29 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 27 Act 1975 whether under Part IVA or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 15. New Part IVA inserted After Part IV of the State Employees Retirement Benefits Act 1979 insert— 'PART IVA—FAMILY LAW PROVISIONS 66AA. Definitions (1) In this Part— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "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; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; s. 15 -- 30 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 28 "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; s. 15 -- 31 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 29 "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; "specified period" means the period which is specified to be the specified period in the specified standards; "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "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 Commonwealth Family Law Act 1975; "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 Commonwealth Family Law (Superannuation) Regulations 2001; s. 15 -- 32 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 30 "value of the member spouse's interest in the Fund" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (2) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount. 66AB. Accrued benefit multiple For the purpose of regulation 65 of the Commonwealth Family Law (Superannuation) Regulations 2001, the Board on the advice of an actuary appointed by the Board may from time to time determine the accrued benefit multiple. 66AC. Obligation on Board (1) Subject to sub-sections (5) and (6), the Board must comply with this section 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975. (2) This section also applies to— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or s. 15 -- 33 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 31 (c) a splitting order— which was served on the Board under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 15 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (3) 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 Board 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 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Board. (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, s. 15 -- 34 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 32 the Board 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 Board. (5) Sub-sections (3) and (4) 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 s. 15 -- 35 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 33 (c) the non-member spouse has served a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 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 Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Board may determine that sub-sections (3) and (4) do not apply. (7) If the non-member spouse serves a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the Board 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 Board to the non-member spouse in accordance with this section. 66AD. Reduction of benefit or accrued benefit entitlement Despite anything to the contrary in this Act, if under section 66AC an amount is paid by the Board to a non-member spouse or transferred by the Board on behalf of a non- member spouse, the benefit or accrued benefit entitlement of a member spouse must be reduced by the Board in accordance with s. 15 -- 36 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 34 a methodology approved by the Minister, on the advice of an actuary appointed by the Board. 66AE. Board may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the Board may provide information additional to the information required to be provided under section 90MZB of that Act if the Board considers that the additional information is necessary to understand the Fund or the member spouse's benefit entitlements. 66AF. Commutation rights not affected 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 this Part. 66AG. Charging of fees (1) The Board 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 Commonwealth Family Law Act 1975 terminating the operation of a payment flag; s. 15 -- 37 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 35 (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Board in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 66AE. (2) Fees charged under sub-section (1) 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. (3) If the Board charges a fee under sub-section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; or (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; or (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.'. s. 15 -- 38 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 36 16. Section 70A substituted For section 70A of the State Employees Retirement Benefits Act 1979 substitute— "70A. Assignment or charging of interest (1) Subject to sub-section (2), an interest of a member or beneficiary in a benefit under this Act— (a) must not be in any way assigned, charged, attached or passed by operation of law to any other person; and (b) is not an asset for the payment of any debt or liability. (2) Sub-section (1) does not apply to or in respect of any assignment, charge, payment or transfer permitted expressly or by necessary implication by this Act.". 17. Specified standards (1) In section 73(1)(a) of the State Employees Retirement Benefits Act 1979 after "contributions" insert "and benefits". (2) After section 73(1)(c) of the State Employees Retirement Benefits Act 1979 insert— "(ca) specify processes and requirements in respect of the administration and operation of Part IVA; and (cb) specify the benefits and entitlements of non- members spouses under Part IVA; and". s. 16 -- 39 of 78 -- Victorian Legislation and Parliamentary Documents Part 5—State Employees Retirement Benefits Act 1979 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 37 (3) After section 73(2) of the State Employees Retirement Benefits Act 1979 insert— "(3) Any Order in Council made before the enactment of the Superannuation Acts (Family Law) Act 2003 has force and effect as if it had been made under this section as amended by section 17(1) of that Act.". __________________ s. 17 -- 40 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 38 PART 6—STATE SUPERANNUATION ACT 1988 18. Definition of "secondment" In section 3(1) of the State Superannuation Act 1988, in the definition of "secondment", for "section 51(3) or 90(3)" substitute "section 90A". 19. What does "partially dependent" mean? After section 3(1) of the State Superannuation Act 1988 insert— '(1A) For the purpose of the definition of "dependant" in section 3(1), a person was partially dependent on a deceased person if the person benefited from a financial contribution which was not trivial in nature and was to some extent necessary to sustain the basics of life.'. 20. Amendment of section 16A (1) In section 16A(6) of the State Superannuation Act 1988, in the definition of "relevant Act", after "1982" insert ", Magistrates' Court Act 1989". (2) After section 16A(6) of the State Superannuation Act 1988 insert— "(7) Part 7A does not apply in respect of the account.". s. 18 See: Act No. 50/1988. Reprint No. 4 as at 1 July 1999 and amending Act Nos 29/2000, 95/2000, 27/2001 and 73/2001. LawToday: www.dms. dpc.vic. gov.au -- 41 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 39 21. Original scheme members At the end of section 27 of the State Superannuation Act 1988 insert— "(2) Notwithstanding anything to the contrary in the Superannuation Act 1958, the payment of any benefit under that Act is subject to any relevant specified standards made under section 92A.". 22. New section 27A inserted After section 27 of the State Superannuation Act 1988 insert— "27A. Application of Family Law provisions to pensioners (1) The Superannuation Act 1958 as in force immediately before its repeal continues to apply in respect of a person who became entitled to receive a pension under that Act subject to this section. (2) For the purposes of this section— (a) the provisions of Part 7A, with such modifications as are necessary to make those provisions consistent with the Superannuation Act 1958 as in force immediately before its repeal, are deemed to form part of the Superannuation Act 1958; and (b) the Superannuation Act 1958 as in force immediately before its repeal is to be read and construed subject to— (i) the provisions referred to in paragraph (a); and (ii) any relevant specified standards made under section 92A(1)(ca) or 92A(1)(cb).". s. 21 -- 42 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 40 23. Benefit on retirement of new scheme member After section 52(3) of the State Superannuation Act 1988 insert— "(4) If a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 7A or otherwise, the maximum accrued retirement benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 24. New Part 7A inserted After Part 7 of the State Superannuation Act 1988 insert— 'PART 7A—FAMILY LAW PROVISIONS 59AA. Definitions (1) In this Part— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible superannuation plan" means— (a) a regulated superannuation fund; or (b) an approved deposit fund; or s. 23 -- 43 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 41 (c) an exempt public sector superannuation scheme; or (d) an RSA; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; s. 24 -- 44 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 42 "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; "specified period" means the period which is specified to be the specified period in the specified standards; "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "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 Commonwealth Family Law Act 1975; s. 24 -- 45 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 43 "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 Commonwealth Family Law (Superannuation) Regulations 2001; "value of the member spouse's interest in the Fund" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (2) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount. 59AB. Accrued benefit multiple For the purpose of regulation 65 of the Commonwealth Family Law (Superannuation) Regulations 2001, the Board on the advice of an actuary appointed by the Board may from time to time determine the accrued benefit multiple. 59AC. Obligation on Board (1) Subject to sub-sections (5) and (6), the Board must comply with this section 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975. s. 24 -- 46 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 44 (2) This section also applies 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 24 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (3) 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 Board 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 s. 24 -- 47 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 45 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Board. (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the Board 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 Board. s. 24 -- 48 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 46 (5) Sub-sections (3) and (4) 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 Board under section 90MZA of the Commonwealth Family Law Act 1975 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 Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Board may determine that sub-sections (3) and (4) do not apply. (7) If the non-member spouse serves a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the Board 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 Board to the non-member spouse in accordance with this section. s. 24 -- 49 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 47 59AD. Reduction of benefit or accrued benefit entitlement Despite anything to the contrary in this Act, if under section 59AC an amount is paid by the Board to a non-member spouse or transferred by the Board on behalf of a non- member spouse, the benefit or accrued benefit entitlement of a member spouse must be reduced by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board. 59AE. Board may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the Board may provide information additional to the information required to be provided under section 90MZB of that Act if the Board considers that the additional information is necessary to understand the Fund or the member spouse's benefit entitlements. 59AF. Commutation rights not affected 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 this Part. 59AG. Charging of fees (1) The Board may charge reasonable fees in respect of— (a) a payment split; (b) a payment flag; s. 24 -- 50 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 48 (c) flag lifting under a flag lifting agreement that does not provide for a payment split; (d) an order under section 90MM of the Commonwealth Family Law Act 1975 terminating the operation of a payment flag; (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Board in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 59AE. (2) Fees charged under sub-section (1) 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. (3) If the Board charges a fee under sub-section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; or (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; or s. 24 -- 51 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 49 (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.'. 25. Members of approved superannuation schemes After section 69(6) of the State Superannuation Act 1988 insert— "(6A) For the purposes of sub-section (6), if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 7A or otherwise, the aggregate benefits of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 26. Minimum benefit After section 71(1C) of the State Superannuation Act 1988 insert— "(2) For the purposes of sub-section (1), if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 7A or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 27. Amendment of section 77B In section 77B(8) of the State Superannuation Act 1988 for "under section 2 of the Penalty Interest Rates Act 1983" substitute "by the Board based on the Treasury bond rate (within the meaning of section 16 of the Commonwealth s. 25 -- 52 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 50 Superannuation Contributions Tax (Assessment and Collection) Act 1997)". 28. Section 88 substituted For section 88 of the State Superannuation Act 1988 substitute— "88. Assignment or charging of interest (1) Subject to sub-section (2), an interest of a member or beneficiary in a benefit under this Act— (a) must not be in any way assigned, charged, attached or passed by operation of law to any other person; and (b) is not an asset for the payment of any debt or liability. (2) Sub-section (1) does not apply to or in respect of any assignment, charge, payment or transfer permitted expressly or by necessary implication by this Act.". 29. Specified standards (1) In section 92A(1)(a) of the State Superannuation Act 1988 after "contributions" insert "and benefits". (2) After section 92A(1)(c) of the State Superannuation Act 1988 insert— "(ca) specify processes and requirements in respect of the administration and operation of Part 7A; and (cb) specify the benefits and entitlements of non- members spouses under Part 7A; and". s. 28 -- 53 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 51 (3) After section 92A(2) of the State Superannuation Act 1988 insert— "(3) Any Order in Council made before the enactment of the Superannuation Acts (Family Law) Act 2003 has force and effect as if it had been made under this section as amended by section 29(1) of that Act.". 30. MWCESF After section 94(1F) of the State Superannuation Act 1988 insert— "(1G) Sub-section (1A) is subject to the provisions of Part 7A. (1H) For the purposes of sub-section (1G), the provisions of Part 7A with such modifications as are necessary to make those provisions consistent with the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund are deemed to form part of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund.". 31. Water Industry Superannuation Fund After section 96(4) of the State Superannuation Act 1988 insert— "(4A) Sub-section (3) is subject to the provisions of Part 7A. (4B) For the purposes of sub-section (4A), the provisions of Part 7A with such modifications as are necessary to make those provisions consistent with the governing instrument of the Water Industry Superannuation Fund are deemed to form part of the governing instrument of the Water Industry Superannuation Fund.". s. 30 -- 54 of 78 -- Victorian Legislation and Parliamentary Documents Part 6—State Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 52 32. Port of Melbourne Authority Superannuation Fund After section 101(1A) of the State Superannuation Act 1988 insert— "(1B) Sub-section (1) is subject to the provisions of Part 7A. (1C) For the purposes of sub-section (1B), the provisions of Part 7A with such modifications as are necessary to make those provisions consistent with the governing instrument of the Port of Melbourne Authority Superannuation Fund are deemed to form part of the governing instrument of the Port of Melbourne Authority Superannuation Fund.". __________________ s. 32 -- 55 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 53 PART 7—SUPERANNUATION (PORTABILITY) ACT 1989 33. New definitions inserted After section 3(3) of the Superannuation (Portability) Act 1989 insert— '(4) In this Act— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "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; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; s. 33 See: Act No. 14/1989. Reprint No. 3 as at 31 May 2000 and amending Act Nos 95/2000 and 27/2001. LawToday: www.dms. dpc.vic. gov.au -- 56 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 54 "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; "specified period" means the period which is specified to be the specified period in the specified standards; s. 33 -- 57 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 55 "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "superannuation interest" means an interest that a person has in the statutory superannuation fund, but does not include a reversionary interest; "unsplittable interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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 Commonwealth Family Law (Superannuation) Regulations 2001; "value of the member spouse's interest in the statutory superannuation fund" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (5) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount.'. s. 33 -- 58 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 56 34. Family Law provisions After section 9 of the Superannuation (Portability) Act 1989 insert— "9AA. Obligation on administrators (1) Subject to sub-sections (5) and (6), the administrators must comply with this section 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 administrators under Part VIIIB of the Commonwealth Family Law Act 1975. (2) This section also applies 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 administrators under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 34 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. s. 34 -- 59 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 57 (3) 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 administrators 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 statutory superannuation 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 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the administrators. (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, the administrators 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 statutory superannuation fund— s. 34 -- 60 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 58 (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 administrators. (5) Sub-sections (3) and (4) 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 administrators under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest; or s. 34 -- 61 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 59 (d) the member spouse's superannuation interest is a payment that is not a splittable payment under Part 2 of the Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the administrators may determine that sub- sections (3) and (4) do not apply. (7) If the non-member spouse serves a waiver notice on the administrators under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the administrators 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 administrators to the non-member spouse in accordance with this section. 9AB. Reduction of deferred retirement benefit or transfer amount Despite anything to the contrary in this Act, if under section 9AA an amount is paid by the administrators to a non-member spouse or transferred by the administrators on behalf of a non-member spouse, the deferred retirement benefit or transfer amount of a member spouse must be reduced by the administrators in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the administrators. s. 34 -- 62 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 60 9AC. Administrators may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the administrators may provide information additional to the information required to be provided under section 90MZB of that Act if the administrators consider that the additional information is necessary to understand the statutory superannuation fund or the member spouse's benefit entitlements. 9AD. Charging of fees (1) The administrators 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 Commonwealth Family Law Act 1975 terminating the operation of a payment flag; (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Board in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 9AC. s. 34 -- 63 of 78 -- Victorian Legislation and Parliamentary Documents Part 7—Superannuation (Portability) Act 1989 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 61 (2) Fees charged under sub-section (1) 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. (3) If the administrators charge a fee under sub- section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; or (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; or (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.". __________________ s. 34 -- 64 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 62 PART 8—TRANSPORT SUPERANNUATION ACT 1988 35. What does "partially dependent" mean? After section 3(2) of the Transport Superannuation Act 1988 insert— '(2A) For the purpose of the definition of "dependant" in section 3(1), a person was partially dependent on a deceased person if the person benefited from a financial contribution which was not trivial in nature and was to some extent necessary to sustain the basics of life.'. 36. Benefit on retirement After section 29(2) of the Transport Superannuation Act 1988 insert— "(2A) If a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 whether under Part 7A or otherwise, the maximum accrued retirement benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 37. Minimum benefit After section 35A(2) of the Transport Superannuation Act 1988 insert— "(2A) For the purposes of sub-section (2), if a payment or transfer to a non-member spouse is made for the purposes of Part VIIIB of the Commonwealth Family Law Act 1975 s. 35 See: Act No. 33/1988. Reprint No. 3 as at 1 July 1999 and amending Act Nos 29/2000, 95/2000, 27/2001 and 54/2001. LawToday: www.dms. dpc.vic. gov.au -- 65 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 63 whether under Part 7A or otherwise, the minimum benefit of the member spouse must be adjusted by the Board in accordance with a methodology approved by the Minister, on the advice of an actuary appointed by the Board.". 38. New Part 7A inserted After Part 7 of the Transport Superannuation Act 1988 insert— 'PART 7A—FAMILY LAW PROVISIONS 36AA. Definitions (1) In this Part— "approved deposit fund" has the meaning given by section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; "eligible rollover fund" means a fund within the meaning of section 242 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "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; "exempt public sector superannuation scheme" means a public sector superannuation scheme within the meaning of section 10(1) of the Commonwealth Superannuation Industry (Supervision) Act 1993; s. 38 -- 66 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 64 "flag lifting agreement" has the meaning given by section 90MN of the Commonwealth Family Law Act 1975; "flagging order" means an order mentioned in section 90MU(1) of the Commonwealth Family Law Act 1975; "interest" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "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; "payment flag" has the meaning given by section 90MD of the Commonwealth Family Law Act 1975; "regulated superannuation fund" means a superannuation fund which complies with section 19 of the Commonwealth Superannuation Industry (Supervision) Act 1993; "relevant condition of release" means, a condition of release mentioned in item 101, 102, 103 or 106 of Schedule 1 to the Commonwealth Superannuation Industry (Supervision) Regulations 1994; "reversionary interest" has the meaning given by section 90MF of the Commonwealth Family Law Act 1975; s. 38 -- 67 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 65 "RSA" means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997; "specified period" means the period which is specified to be the specified period in the specified standards; "splitting order" means an order mentioned in section 90MT of the Commonwealth Family Law Act 1975; "superannuation agreement" has the meaning given by section 90MH of the Commonwealth Family Law Act 1975; "superannuation fund" has the same meaning as in the Commonwealth Superannuation Industry (Supervision) Act 1993; "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 Commonwealth Family Law Act 1975; "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 Commonwealth Family Law (Superannuation) Regulations 2001; s. 38 -- 68 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 66 "value of the member spouse's interest in the Fund" means the value as determined in accordance with Part 5 of the Commonwealth Family Law (Superannuation) Regulations 2001. (2) A reference to the transfer of an amount is to be construed as including a reference to the rollover of an amount. 36AB. Accrued benefit multiple For the purpose of regulation 65 of the Commonwealth Family Law (Superannuation) Regulations 2001, the Board on the advice of an actuary appointed by the Board may from time to time determine the accrued benefit multiple. 36AC. Obligation on Board (1) Subject to sub-sections (5) and (6), the Board must comply with this section 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 Board under Part VIIIB of the Commonwealth Family Law Act 1975. (2) This section also applies to— (a) a superannuation agreement which provides for a payment split; or (b) a flag lifting agreement which provides for a payment split; or s. 38 -- 69 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 67 (c) a splitting order— which was served on the Board under Part VIIIB of the Commonwealth Family Law Act 1975 before the commencement of section 38 of the Superannuation Acts (Family Law) Act 2003 if the non-member spouse's entitlements in respect of the superannuation interest have not been satisfied as at that commencement. (3) 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 Board 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 of the superannuation interest at the time of the payment to an eligible rollover fund selected by the Board. (4) If the non-member spouse has satisfied a relevant condition of release or the member spouse is receiving a pension under this Act, s. 38 -- 70 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 68 the Board 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 Board. (5) Sub-sections (3) and (4) 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 s. 38 -- 71 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 69 (c) the non-member spouse has served a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 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 Commonwealth Family Law (Superannuation) Regulations 2001. (6) If the member spouse's superannuation interest is a pension under this Act due to a disability which is a splittable payment, the Board may determine that sub-sections (3) and (4) do not apply. (7) If the non-member spouse serves a waiver notice on the Board under section 90MZA of the Commonwealth Family Law Act 1975 in respect of the member spouse's superannuation interest, the Board 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 Board to the non-member spouse in accordance with this section. 36AD. Reduction of benefit or accrued benefit entitlement Despite anything to the contrary in this Act, if under section 36AC an amount is paid by the Board to a non-member spouse or transferred by the Board on behalf of a non- member spouse, the benefit or accrued benefit entitlement of a member spouse must be reduced by the Board in accordance with s. 38 -- 72 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 70 a methodology approved by the Minister, on the advice of an actuary appointed by the Board. 36AE. Board may provide additional information On the application of an eligible person within the meaning of section 90MZB(8) of the Commonwealth Family Law Act 1975, the Board may provide information additional to the information required to be provided under section 90MZB of that Act if the Board considers that the additional information is necessary to understand the Fund or the member spouse's benefit entitlements. 36AF. Commutation rights not affected 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 this Part. 36AG. Charging of fees (1) The Board 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 Commonwealth Family Law Act 1975 terminating the operation of a payment flag; s. 38 -- 73 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 71 (e) an application under section 90MZB of the Commonwealth Family Law Act 1975 for information about a superannuation interest; (f) any other thing done by the Board in relation to a superannuation interest covered by a superannuation agreement, flag lifting agreement or splitting order; (g) the provision of information under section 36AE. (2) Fees charged under sub-section (1) 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. (3) If the Board charges a fee under sub-section (1), the fee is payable— (a) unless paragraph (b) applies, in the case of sub-section (1)(a), (1)(b), (1)(c), (1)(d) or (1)(f), by the member spouse and the non-member spouse in equal parts; or (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; or (c) in the case of sub-section (1)(e) or (1)(g), by the person who made the application.'. s. 38 -- 74 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 72 39. Section 49 substituted For section 49 of the Transport Superannuation Act 1988 substitute— "49. Assignment or charging of interest (1) Subject to sub-section (2), an interest of a member or beneficiary in a benefit under this Act— (a) must not be in any way assigned, charged, attached or passed by operation of law to any other person; and (b) is not an asset for the payment of any debt or liability. (2) Sub-section (1) does not apply to or in respect of any assignment, charge, payment or transfer permitted expressly or by necessary implication by this Act.". 40. Specified standards (1) In section 53(1)(a) of the Transport Superannuation Act 1988 after "contributions" insert "and benefits". (2) After section 53(1)(c) of the Transport Superannuation Act 1988 insert— "(ca) specify processes and requirements in respect of the administration and operation of Part 7A; and (cb) specify the benefits and entitlements of non- members spouses under Part 7A; and". s. 39 -- 75 of 78 -- Victorian Legislation and Parliamentary Documents Part 8—Transport Superannuation Act 1988 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 73 (3) After section 53(2) of the Transport Superannuation Act 1988 insert— "(3) Any Order in Council made before the enactment of the Superannuation Acts (Family Law) Act 2003 has force and effect as if it had been made under this section as amended by section 40(1) of that Act.". __________________ s. 40 -- 76 of 78 -- Victorian Legislation and Parliamentary Documents Part 9—Unclaimed Moneys Act 1962 Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 74 PART 9—UNCLAIMED MONEYS ACT 1962 41. Family Law provisions In section 17 of the Unclaimed Moneys Act 1962, in the definition of "member", after paragraph (b) insert— "; or (c) in respect of an unclaimed superannuation benefit that is taken to be unclaimed money under section 12(2) of the Commonwealth Unclaimed Money Act, a non-member spouse within the meaning of Part VIIIB of the Commonwealth Family Law Act 1975;". 42. Statement of unclaimed superannuation benefits After section 19(4)(a)(ii) of the Unclaimed Moneys Act 1962 insert— '(iii) a non-member spouse, if paragraph (c) of the definition of "member" in section 17 applies; and'. ═══════════════ s. 41 See: Act No. 6879/1962. Reprint No. 7 as at 3 April 2003. LawToday: www.dms. dpc.vic. gov.au -- 77 of 78 -- Victorian Legislation and Parliamentary Documents Superannuation Acts (Family Law) Act 2003 Act No. 70/2003 75 ENDNOTES † Minister's second reading speech— Legislative Assembly: 28 August 2003 Legislative Council: 18 September 2003 The long title for the Bill for this Act was "to amend the Emergency Services Superannuation Act 1986, the Government Superannuation Act 1999, the Parliamentary Salaries and Superannuation Act 1968, the State Employees Retirement Benefits Act 1979, the State Superannuation Act 1988, the Superannuation (Portability) Act 1989, the Transport Superannuation Act 1988 and the Unclaimed Moneys Act 1962 and for other purposes." Endnotes -- 78 of 78 --