CHAPTER 1
Introduction
1.1
On 15 March 2012, the Judges and Governors-General Legislation Amendment
(Family Law) Bill 2012 (Bill) was introduced into the House of Representatives
by the Hon. Gary Gray MP, Special Minister of State and Minister for the Public
Service and Integrity (Minister).[1]
On 22 March 2012, the Senate referred the provisions of the Bill to the Legal
and Constitutional Affairs Legislation Committee (committee) for inquiry and
report by 8 May 2012.[2]
Purpose of the Bill
1.2
The Family Law Act 1975 allows superannuation interests to be
treated as property which can be split by married and de facto couples at the time
of a family breakdown and property settlement. According to the Explanatory
Memorandum (EM) to the Bill, superannuation splitting assists in providing separating
couples with a 'clean break' from the relationship and also provides both
parties with control over their respective individual interests.[3]
1.3
However:
[T]he current family law arrangements for judges and
Governors-General are inconsistent with family law policy of a clean break. The
arrangements are also out of step with the other Commonwealth defined benefit
superannuation schemes, which have since 2004 provided separate interest
benefits to former spouses of scheme members in a family law split.[4]
1.4
For judges, the current 'percentage-only' splitting arrangements provided
for in the Judges' Pensions Act 1968 (Judges' Act) mean that a judge's pension
is split only when payments are made to a retired judge. A former spouse does
not receive any payment until that time and the payments cease upon the judge's
death.[5]
1.5
For Governors-General, the Governor-General Act 1974 (Governor-General
Act) does not provide for the splitting of a superannuation interest at the
time of a family law property settlement.[6]
1.6
The Bill addresses these issues, by amending the Judges' Act and the Governor-General
Act to provide for an amount to be calculated and transferred to the former
spouse of a judge or Governor-General as a separate superannuation benefit at
the time of a family law split, based on the percentage split or specified
amount in a splitting agreement or splitting order.[7]
1.7
The EM notes that the family law courts or the separating parties
determine whether a judge's or Governor-General's superannuation benefit is to
be split and, if so, the amount or the percentage of the split between the
parties. The amendments proposed in the Bill do not mean that the Commonwealth
will be determining family law property settlements: the Bill's provisions only
come into effect when the Secretary of the Department of Finance and Deregulation
(Department) receives a splitting order or splitting agreement in respect of a
superannuation interest under the Judges' Act or Governor-General Act.[8]
Conduct of the inquiry
1.8
Details of the inquiry, the Bill and associated documents were placed on
the committee's website. The committee also wrote to 19 organisations and
individuals, inviting submissions by 13 April 2012.
1.9
The committee received one submission from the Department, which is available
on the committee's website at https://www.aph.gov.au/senate_legalcon. No public
hearings were held for the inquiry.
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