EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 321

 

Issued By The Authority Of The Attorney-General

 

Family Law Act 1975

 

Family Law (Superannuation) Amendment Regulations 2009 (No.2)

Subsection 125(1) of the Family Law Act 1975 (FLA) provides, in part, that the

Governor-General may make regulations, not inconsistent with the FLA, prescribing all matters required or permitted by the FLA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the FLA.

Part VIIIB of the FLA provides for the division of superannuation between married and de facto couples on relationship breakdown.

The purpose of the Regulations is to make minor amendments to the Family Law (Superannuation) Regulations 2001 (the Principal Regulations) to reflect the replacement of the Australian Industrial Relations Commission (AIRC) by Fair Work Australia from 31 December 2009. The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 continued the existence of the AIRC until that date.

The Regulations commence on 31 December 2009, the date that Fair Work Australia replaces the AIRC.

Details of the Regulations are as follows:

Regulation 1 – Name of Regulations

Regulation 1 provides that the name of the Regulations is the Family Law (Superannuation) Amendment Regulations 2009 (No.2).

Regulation 2 – Commencement

Regulation 2 provides for the Regulations to commence on 31 December 2009.

Regulation 3 – Amendment of the Family Law (Superannuation) Amendment Regulations 2001

Regulation 3 provides that the Principal Regulations are amended as set out in Schedule 1.

Schedule 1 – Amendments

Item [1]: Paragraph 10(2)(a)

Item 1 amends paragraph 10(2)(a) of the Principal Regulations to identify the General Manager of Fair Work Australia as the trustee, for the purposes of Part VIIIB of the FLA, of the pension scheme under the Judges’ Pensions Act 1968 (the Judges’ Pensions Act scheme) in relation to particular members of that scheme.

Those members are a person who is the President or a former President of Fair Work Australia, a Deputy President or a former Deputy President of Fair Work Australia who was a Presidential Member of the AIRC or a former Presidential Member of the AIRC, or who is the spouse or a former spouse or former de facto spouse of such a person.

Item [2]: Subregulation 10(6)

Item 2 amends subregulation 10(6) of the Principal Regulations to omit the definition of “Industrial Registrar”. The amendment is consequential to the amendment made by item 1 to paragraph 10(2)(a). Until that amendment, paragraph 10(2)(a) of the Principal Regulations identified the Industrial Registrar of the AIRC as the trustee, for the purposes of Part VIIIB of the FLA, in relation to a member of the Judges’ Pensions Act scheme who is a Presidential Member of the AIRC.

Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Department of Education, Employment and Workplace Relations. The consultation involved exchange of correspondence and discussions.