Commonwealth Powers (De Facto Relationships) Act 2006

The Act rests on a small set of legal concepts and procedural mechanisms. Those concepts are defined and constrained within the Act; the main ones are "de facto relationship", "de facto partner", "superannuation matters", and the reference/termination mechanism.

• De facto relationship and partner. A de facto relationship is defined as a marriage‑like relationship other than a legal marriage (s 3(1)). A "de facto partner" is anyone who lives or has lived in such a relationship (s 3(1)). The Act explicitly treats a relationship as capable of existing even where a partner is legally married to someone else or is in another de facto relationship (s 3(2)). The definition therefore deliberately covers situations of overlapping personal relationships rather than restricting coverage to exclusive or monogamous relationships. The Act also applies to relationships that ended before the Act commenced (s 3(4)), so the referral can affect disputes or claims that predate the referral.

• Superannuation matters. The Act defines "superannuation matters" in relation to de facto partners as "the distribution of superannuation benefits or prospective superannuation entitlements of or relating to de facto partners" (s 3(1)). The Act broadens "distribution" to include "the conferral of rights or obligations in relation to the superannuation benefits or prospective superannuation entitlements" (s 3(3)(b)). This is a functional definition aimed at covering not only splitting or transfer of monetary benefits but also statutory rights, enforceable obligations, or any legal devices that alter parties’ entitlements.

• Scope of the reference. The reference is limited to "to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth" (s 4(1)). That phrasing operates as a residual or conditional limitation: the reference is intended to fill gaps in Commonwealth legislative power, not to duplicate or override areas where the Commonwealth already has competence. The Act divides the referral into two separate paragraphs: matters arising from breakdowns of different‑sex de facto relationships (s 4(1)(a)) and matters arising from breakdowns of same‑sex de facto relationships (s 4(1)(b)), and subsection 4(2) makes clear the operation of each paragraph is independent of the other.

• Temporal and termination mechanism. The referral has a built‑in sunset structure. It begins on the day the Act comes into operation (s 4(1)) and ends on the day fixed under s 5 (s 4(1)). The Governor may fix that terminal day by proclamation (s 5(1)), subject to procedural requirements: the day fixed must be no earlier than the day after the end of a period of three months beginning with the day the proclamation is published in the Gazette (s 5(2)). The Governor may revoke a proclamation under conditions (s 5(3)-(5)), but revocation only has effect if published before the fixed termination date (s 5(4)), and a revoking proclamation is treated as if the original proclamation were never published (s 5(3)). Crucially, a proclamation under s 5 may be made "if and only if" the making of that proclamation has been recommended by resolution passed by both Houses of the State Parliament (s 5(6)). That places a parliamentary gate on executive termination power.

• Constitutional references and intended federal effect. The Act expressly states its purpose is to refer power to the Commonwealth under section 51(xxxvii) of the Commonwealth Constitution and with a view to investing the Family Court of Western Australia with jurisdiction under section 77(iii) of the Commonwealth Constitution (s 1(2)). The Act itself does not enact Commonwealth law; it is a mechanism to enable the Commonwealth Parliament to legislate in the referred field.

These concepts interact: the breadth of the definitions (including historical relationships, overlapping relationships, and conferral of rights) means the Commonwealth, if it legislates, will have the competence to regulate a wide set of arrangements connected to superannuation and de facto breakup. The separate paragraphs for different‑sex and same‑sex relationships allow the Commonwealth to treat those categories differently if it chooses, with the policy decision about termination or extension of the reference remaining subject to State parliamentary resolution and gubernatorial proclamation as set out in s 5.

The Act affects three categories of actors directly and several categories indirectly. The text identifies the classes targeted by the referral and provides the procedural mechanisms that determine who makes the decisions and how long the Commonwealth will hold the referred power.

• Individuals in de facto relationships. The primary group the Act names is de facto partners: persons who live or have lived in a de facto relationship (s 3(1)). The referral concerns the distribution of superannuation benefits or prospective superannuation entitlements arising from the breakdown of those relationships (s 4(1)). Because s 3(4) extends the Act to relationships that ended before commencement, persons whose relationships ended before the referral commenced are nonetheless within the Act’s reach. Because s 3(2) permits a de facto relationship to exist even if one partner is legally married to someone else or is in another de facto relationship, persons in overlapping or concurrent relationships are also within scope.

• Superannuation beneficiaries and the entitlements themselves. The defined subject matter is "superannuation benefits or prospective superannuation entitlements of or relating to de facto partners" (s 3(1)). Though the Act does not name particular institutions, the class of persons or entities administering superannuation benefits (funds, trustees, administrators) will be implicated practically if the Commonwealth enacts distribution rules under the referred power: they will be the parties required to apply federal law for splitting or transferring entitlements. The Act’s definition of "distribution" to include conferral of rights or obligations (s 3(3)(b)) may capture obligations on funds or trustees imposed by Commonwealth statute.

• Courts and jurisdictional structures. The Act's stated purpose contemplates enabling the Family Court of Western Australia to be invested with jurisdiction to deal with those referred matters under s 77(iii) of the Commonwealth Constitution (s 1(2)). That is a legislative objective; whether the Family Court gains jurisdiction depends on Commonwealth legislation enacted pursuant to the power referred. If the Commonwealth legislates and invests federal courts with jurisdiction, litigants will be required to litigate under the Commonwealth framework and in courts with federal jurisdiction as provided by federal law.

• The Parliament of the Commonwealth. The Act refers matters to the Commonwealth Parliament (s 4(1)). That Parliament becomes the lawmaking body able to enact rules in respect of the referred superannuation matters; the State ceases to legislate in the referred field for the reference period, to the extent the reference covers matters not already within Commonwealth power.

• The Executive of the State and the State Parliament. The Act assigns roles to the State Governor and Parliament in ending the referral. The Governor may fix the termination day by proclamation (s 5(1)), but only when recommended by resolution passed by both Houses of the State Parliament (s 5(6)). That creates a joint decision‑making role: the State Parliament initiates termination by resolution, and the Governor gives legal effect through proclamation. The Governor may revoke a proclamation under defined conditions (s 5(3)-(5)).

• Other entities and third parties with interests in superannuation. The Act’s broad definition of "superannuation matters" (s 3(1)) and "distribution" (s 3(3)(b)) means that legal advisers, trustees, employers who operate superannuation plans, and courts that currently decide property or family law matters may be affected indirectly when Commonwealth law is enacted. The Act itself does not impose operational obligations on these parties but places them within the potential regulatory perimeter.

Who bears the direct legal effects therefore depends on subsequent Commonwealth legislation: the referral alters the locus of lawmaking and jurisdiction (s 1(2) and s 4(1)), and that will determine whether individuals, funds, trustees, employers, or others are obliged to act in particular ways. The Act’s internal features , coverage of historical breakdowns (s 3(4)), overlapping relationships (s 3(2)), and independent paragraphs for same‑sex and different‑sex breakdowns (s 4(1) and s 4(2)) , affect the breadth of persons and claims that can be regulated under any Commonwealth law made in exercise of the referred power.

The Act itself is short and largely procedural: it does not create detailed substantive duties or rights for private parties. Instead it assigns the legislative power to the Commonwealth to make laws about distribution of superannuation benefits and prospective entitlements for de facto partners. The key operational duties and rights are therefore of a meta‑legal character: who may legislate, which matters may be legislated about, and how the referral can be ended. From the text, the following duties, rights and procedural constraints emerge.

• Commonwealth legislative competence. The primary "right" created by the Act is the right of the Parliament of the Commonwealth to legislate in respect of the specified "superannuation matters" for the period of the reference (s 4(1)). That transfers the capacity to prescribe legally enforceable rights and obligations on persons and entities regarding distribution of superannuation entitlements , for example, the Commonwealth could enact legislation allocating entitlements between de facto partners, set procedural mechanisms for splitting benefits, or create enforcement mechanisms. The Act does not itself specify those substantive rules; it only confers the competence to the Commonwealth (s 4(1)).

• Definitions that determine who benefits or is obliged. The Act defines the subject persons and subject matters that Commonwealth legislation may address. "Superannuation matters" includes conferral of rights or obligations in relation to benefits or entitlements (s 3(1) and s 3(3)(b)), so Commonwealth law could create new rights (for partners) or obligations (for trustees, employers, administrators). The definition of de facto partner and relationship (s 3(1)) and the rules in s 3(2) and s 3(4) determine the persons to whom such rights or obligations could be extended: past partners, persons in overlapping relationships, and persons whose relationships ended before commencement are all potentially within the scope of any Commonwealth obligation or right.

• Procedural duty to follow the referral period and termination mechanics. The State has procedural duties when ending the reference. A proclamation fixing a termination day may be made by the Governor but only if recommended by resolution of both Houses (s 5(6)). The proclamation must allow at least three months’ notice as specified (s 5(2)). Revocation rules (s 5(3)-(5)) create a duty to ensure timing of publication so that a revocation is effective and so that legal certainty about whether the reference remains in force is preserved.

• Exclusion for breakdowns by death. The reference explicitly excludes superannuation matters arising out of breakdown by reason of death (s 4(1) , the words "other than by reason of death" appear in both paragraphs). That exclusion limits rights or duties available under Commonwealth law to cases of relationship breakdown other than death. If a dispute arises on death, the Act does not refer that class of matters and so Commonwealth legislation under this reference would not apply to death‑based distributions; State or other law would continue to govern death cases unless otherwise addressed.

• Independence of same‑sex/different‑sex paragraphs. Subsection 4(2) states the operation of each paragraph is not affected by the other. That creates a procedural right or certainty: decisions about referral and any legislative response may be taken and operate with separable legal effect for different‑sex and same‑sex relationships. Practically, the Commonwealth could enact laws that treat the two paragraphs differently or decide to legislate in respect of one paragraph and not the other.

• Temporal reach and continuity. The Act permits the Commonwealth to legislate for relationships that ended before the Act commenced (s 3(4)). That creates potential retrospective effect if the Commonwealth laws so provide; the Act itself imposes no limit on whether Commonwealth legislation can be expressed to apply to pre‑commencement situations. Rights and duties established by Commonwealth law therefore potentially reach historically terminated relationships, subject to general constitutional and statutory limits external to this text.

Because the Act does not itself create substantive duties on trustees, employers or individuals, the main "duties and rights" it establishes are institutional: the Commonwealth gains power to create rights and obligations by statute with respect to distribution of superannuation entitlements for de facto partners (s 4(1)), and the State retains a role in terminating the referral via parliamentary resolution and proclamation (s 5(6) and s 5(1)). Any concrete legal duties or entitlements for private parties will depend on subsequent Commonwealth legislation enacted pursuant to the referred power.

The Act contains no express penal provisions, no enforcement mechanisms directed at private persons, and no schedule of fines or criminal offences. Its function is a transfer of legislative power rather than the creation of a regulatory enforcement regime. From the Act’s text, the following enforcement‑related observations can be made.

• No penalties or enforcement in the Act itself. There are no provisions that create penalties, sanctions, or enforcement procedures for non‑compliance with rules about superannuation distribution. The Act refers superannuation matters to the Commonwealth Parliament but it does not itself create applicable penalties or enforcement mechanisms (see s 4(1) and the absence of any penalty‑type sections).

• Enforcement will depend on Commonwealth legislation. Because the Act’s operative effect is to confer legislative competence on the Commonwealth Parliament (s 4(1)), any criminal, civil, or administrative penalties, and the design of enforcement processes in relation to distribution of superannuation benefits, would need to be enacted by the Commonwealth. The Act sets the jurisdictional and definitional parameters (s 3 and s 4) but not the enforcement detail.

• Institutional enforcement through courts contemplated but not implemented in the Act. The Act’s stated purpose includes enabling the Family Court of Western Australia to be invested with jurisdiction under the Commonwealth Constitution to deal with the referred matters (s 1(2)). That contemplates judicial enforcement, but the Act itself does not invest a court with jurisdiction: it is a referral to the Commonwealth so that the Commonwealth Parliament may enact laws, which in turn could confer jurisdiction on courts under s 77(iii) of the Commonwealth Constitution. Any judicial enforcement procedures and remedies would therefore be the product of federal legislation and rules of court.

• State procedural enforcement of proclamation rules. The Act imposes procedural constraints on how the reference may be terminated (s 5). The Governor’s exercise of the power to fix or revoke a termination day is constrained by s 5(2) to provide a minimum notice period via Gazette publication, by s 5(3)-(5) regarding effectiveness of revocations, and by s 5(6) that requires a recommendation by resolution of both Houses. Non‑compliance with those procedural constraints would be a question of public law (whether the Governor or executive acted beyond the powers in the Act), but the Act itself does not prescribe penalties for breach; relief would be by judicial review or other constitutional remedies outside the Act’s provisions.

• Practical enforcement implications for superannuation administrators. While the Act does not directly specify enforcement mechanisms for administrators, the referral contemplates that Commonwealth law may confer obligations on funds, trustees or employers to comply with distribution rules. Any penalties, regulatory obligations, or enforcement frameworks on those entities will arise under Commonwealth statute enacted following the referral.

In short, the Act creates no internal penalty or enforcement regime. Enforcement of any substantive obligations concerning the distribution of superannuation benefits and prospective entitlements will be governed by Commonwealth law enacted under the referred power and the processes by which the Commonwealth invests courts with jurisdiction, as foreshadowed by the Act’s purpose (s 1(2)).

The Act is structured as a constitutional referral of power and expressly engages with federal constitutional mechanisms and existing legislative powers. Its text indicates specific interactions and limits on overlap with other laws and constitutional provisions.

• Interaction with Commonwealth legislative powers. The referral applies "to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth" (s 4(1)). This provision creates a dependency on the existing distribution of legislative power under the Commonwealth Constitution: the reference is not intended to duplicate matters already within Commonwealth competence. In practical terms, where the Commonwealth already has legislative power over particular superannuation matters relevant to de facto partners, the reference does not change that; the referral fills authority gaps that remain with the Commonwealth’s limited heads of power absent the reference.

• Connection to s 51(xxxvii) of the Commonwealth Constitution. The Act explicitly states the referral is for the purposes of section 51(xxxvii) of the Constitution (s 1(2)). Section 51(xxxvii) is the usual constitutional mechanism by which States refer matters to the Commonwealth Parliament. The Act therefore operates as a State law giving effect to a referral that the Commonwealth can rely on when enacting legislation. That link indicates the Act’s intended function as a jurisdictional enabler of Commonwealth lawmaking; the Commonwealth must rely on the referral (and any other constitutional head) when it asserts legislative power over the referred matters.

• Intended interaction with s 77(iii) of the Commonwealth Constitution. The Act’s purpose statement anticipates that the Family Court of Western Australia may be invested with jurisdiction under s 77(iii) of the Constitution to deal with the referred matters (s 1(2)). That envisages federal jurisdiction being conferred on a court to enforce and interpret Commonwealth laws made under the referral. The Act itself does not directly alter judicial structures; any conferral of jurisdiction requires Commonwealth legislative action and associated orders.

• Relationship with State law on de facto relationships and superannuation. The Act does not expressly repeal or displace specific State laws; rather it refers competence to the Commonwealth "to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth" (s 4(1)). In practice that means that for the duration of the reference, and subject to constitutional and statutory principles, the Commonwealth Legislature may enact laws that will operate alongside or instead of State laws. The precise interplay, including commencement dates and prospective or retrospective application, depends on the content and drafting of the Commonwealth legislation made under the referral.

• Temporal interaction and retrospective reach. Because s 3(4) extends the Act to relationships that ended before its commencement, if Commonwealth legislation is enacted pursuant to the referral, it could be drafted to apply to pre‑commencement breakdowns. The Act itself does not impose temporal limits on the application of future Commonwealth laws. The relationship between such Commonwealth laws and existing State legislation or property rights would be subject to constitutional principles and the operation of the Commonwealth statute.

• Termination process and interaction with State parliamentary sovereignty. Section 5 creates a procedure by which the referral can be brought to an end: the Governor may fix a termination day by proclamation (s 5(1)), but only if the proclamation is recommended by resolution of both Houses of the State Parliament (s 5(6)). This places termination under the control of the State Legislature rather than the executive alone, and it therefore interacts with the normal constitutional relationship between the State Parliament and the Governor. A revocation is possible (s 5(3)-(5)), subject to timing constraints. The legal effect of a termination proclamation is that the referral ends on the fixed day (s 4(1) and s 5(1)), which in turn affects the Commonwealth Parliament’s competence to legislate under the reference after that day.

• Exclusion of death‑based breakdowns and interaction with succession law. The Act excludes matters arising "other than by reason of death" from the referral (s 4(1)). That exclusion establishes that the referral does not encompass distribution issues tied to death; State succession or other laws addressing superannuation upon death remain relevant and undisturbed by this particular reference.

Overall, the Act positions itself as a narrowly tailored constitutional device designed to align federal legislative competency with family and superannuation policy in a specific area. Its actual legal effect in relation to statutory regimes and courts depends on subsequent Commonwealth action, on the content of that federal legislation, and on the timing of any termination proclamation under s 5.

The source includes a compilation table that records the Act’s parliamentary history and commencements. From the provided text, the amendment or commencement history is as follows.

• Enactment and assent. The Act is recorded as the Commonwealth Powers (De Facto Relationships) Act 2006, being Act number 26 of 2006, and the date of assent is 26 June 2006 (compilation table).

• Staged commencement. The Act’s own s 2 provides that it "comes into operation on a day fixed by proclamation." The compilation table records that s 1 and s 2 (the short title and commencement provision) commenced on the date of assent, 26 June 2006. The remainder of the Act commenced on 21 November 2020 under s 2 and State Legislative Instrument SL 2020/222 cl 2 (compilation table). That indicates a long gap between assent of the Act and commencement of its substantive operation.

• No recorded subsequent amendments in the provided source. The compilation table shows the original enactment details and the differentiated commencement dates; there are no entries in the provided compilation indicating later amending Acts or textual amendments. The Act as reproduced in the source contains the original provisions and the notes on commencement. The absence of listed amendment entries in the compilation table supplied suggests there have been no formal legislative amendments recorded in this document.

• Practical significance of late commencement. The Act permitted s 1 and s 2 to take immediate effect early (26 June 2006) while the rest of the Act did not come into force until 21 November 2020. The source does not explain the political reason for delayed commencement; it records the legal fact that commencement for the substantive sections occurred in 2020 (compilation table).

• Proclamations and potential further change. Section 5 allows the Governor to fix by proclamation the day on which the references terminate and to revoke such proclamations under defined conditions (s 5(1)-(5)), but only following resolution by both Houses recommending the proclamation (s 5(6)). The Act itself therefore contains its own mechanism for future change to the duration of the reference without formal amendment of the Act by the Parliament. Any alteration in the duration of the reference will be effected by proclamation under the procedures set out in s 5 rather than by statutory amendment.

In sum, the Act was enacted in 2006 (assented 26 June 2006), with its core operative provisions not brought into force until 21 November 2020. The provided compilation contains no further amendment history beyond those commencement entries. The Act contains mechanisms (s 5) for later changes to the termination date through proclamation, conditional on parliamentary recommendation, which operate separately from formal amendment by Parliament.

The source contains no cases, judicial proceedings, or references to litigation arising under this Act. The Act’s text and compilation notes, as supplied, do not mention any legal challenges, judicial consideration, or reported litigation connected to the referral, its commencement, or its operation.

Because the Act is itself a mechanism to refer matters to the Commonwealth Parliament and does not create substantive private rights or penalties, litigation directly under the Act would most likely take the form of public law challenges to the validity of proclamations or to the procedural conditions in s 5 (for example, whether a recommendation of both Houses was properly made). The source, however, records no such litigation.

For practical purposes, any litigation likely to concern distribution of superannuation benefits between de facto partners following legislation by the Commonwealth would be based on the Commonwealth statute enacted under the referred power, and any judicial consideration of constitutional issues (such as the validity of Commonwealth legislation on the basis of the referral) would be found in Commonwealth litigation. None of that material is recorded in the supplied text.

If legal practitioners require a history of judicial treatment, challenges, or precedents interpreting the referral mechanism or subsequent Commonwealth statutes enacted under it, they will need to consult case law databases and Commonwealth legislative history outside this Act text. The Act as provided contains no litigation history entries.

The Act’s brevity hides a number of practical pitfalls and legal tight spots that practitioners and stakeholders should notice. These are matters that flow directly from textual provisions and their legal mechanics.

• The Act is a referral of legislative power, not a code of distribution. The Act does not itself set rules for how superannuation entitlements are to be split or the procedures by which that is done. It gives the Commonwealth Parliament the power to legislate about those matters (s 4(1)). Expectation that the Act alone creates private rights or obligations would be an error. Absent subsequent Commonwealth legislation, this Act does not alter substantive rights.

• Coverage includes pre‑commencement and overlapping relationships. Two often‑overlooked definitions broaden the Act’s reach: s 3(4) brings within the referral relationships that ended before commencement, allowing Commonwealth legislation (if enacted) to be framed to affect historical breakups; s 3(2) permits de facto relationships to exist despite legal marriage to another person or another de facto relationship, potentially exposing overlapping relationships to the referred legal regime. Practitioners should carefully map client fact patterns against s 3 to determine whether a claim would fall under any Commonwealth law enacted pursuant to the referral.

• Referral excludes breakdowns by death. Both paragraphs of s 4(1) specify the reference is to matters arising out of the breakdown, "other than by reason of death." Death‑based superannuation claims remain outside this reference. Parties and advisers must not assume testamentary or death‑based superannuation disputes are caught by Commonwealth laws enacted pursuant to this referral.

• Separate paragraphs for same‑sex and different‑sex relationships operate independently. Section 4(1) splits the referral into two distinct paragraphs (same‑sex and different‑sex breakdowns), and s 4(2) declares their operations are not affected by each other. This allows the Commonwealth to legislate about one category but not the other, or to provide different rules. It also means State decision‑makers considering termination must be aware the practical legal coverage can differ across those two paragraphs.

• Termination requires parliamentary recommendation, not unilateral executive action. The Governor’s power to fix a termination day by proclamation is subject to a recommendation by resolution passed by both Houses of the State Parliament (s 5(6)). That procedural requirement can be missed if advisers assume the executive can unilaterally end the referral. Any termination proclamation issued without both Houses’ recommendation would fall outside the statutory power in s 5.

• Timing and revocation technicalities. The day fixed under s 5(1) must be "no earlier than the first day after the end of the period of 3 months beginning with the day on which the proclamation is published in the Gazette" (s 5(2)). Revocation of a termination proclamation is possible but only if published before the fixed day; a revoking proclamation is treated as if the original proclamation had never been published (s 5(3)-(5)). The combined effect creates timing technicalities that can produce confusing legal states: a proclamation might be gazetted and later revoked in a way that, by s 5(3), treats the original as never published. Exact legal consequences for proceedings or statutory regimes enacted after various proclamations require careful sequencing analysis.

• The Act’s practical effect depends on Commonwealth action. Because the Act confers competence to the Commonwealth Parliament (s 4(1)), the existence, content and enforcement of any new legal obligations require federal legislation and possibly orders vesting jurisdiction in courts. The Act therefore produces legal uncertainty until the Commonwealth enacts laws and the relevant courts are invested with jurisdiction, as the Act contemplates (s 1(2)). Advisers should not presume uniform national rules exist merely because the State has made the referral.

• "To the extent to which" carve‑out creates ambiguity. The qualifying phrase in s 4(1) that the referral is "to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth" introduces potential overlap questions. Practitioners must assess whether particular superannuation matters are already within Commonwealth legislative powers by reference to constitutional law principles. Determining the true scope of the reference as a legal matter may require detailed constitutional analysis.

• Absence of transitional provisions in the Act. The Act contains no transitional or savings provisions addressing how State law provisions remain effective during or after the referral, or how rights existing under State law are to be treated if Commonwealth law is enacted. As a result, any transitional arrangements must be provided by Commonwealth statute or dealt with by interpretation and judicial processes.

These "gotchas" are textual and procedural. Each arises from the Act’s definitions (s 3), the two‑paragraph structure of the referral (s 4(1) and s 4(2)), the exclusion for death (s 4(1)), and the termination mechanism (s 5). Practitioners should treat the Act as a jurisdictional instrument that creates potential but not immediate change; the precise legal landscape will depend on how, and whether, the Commonwealth exercises the referred power.

Compliance under this Act has two dimensions: (a) compliance by State political actors with the procedural rules for proclamation and termination under s 5, and (b) practical compliance by private parties and institutions once the Commonwealth enacts laws pursuant to the referral. The Act itself imposes few direct operational obligations on private actors, but it sets out steps that must be observed for the reference to be valid and for parties to determine what legal regime applies.

For State decision‑makers (Parliament and Executive)

• Use Parliamentary resolution as the required trigger for termination. Section 5(6) requires a recommendation by resolution passed by both Houses before the Governor may make a proclamation fixing a termination day. To comply, ensure an affirmative resolution is moved and passed in both the Legislative Assembly and Legislative Council before any proclamation is tendered. Document the parliamentary proceedings carefully as the statute makes the proclamation conditional on that resolution.

• Observe the minimum notice requirement for any proclamation. Section 5(2) requires that the termination day fixed must be no earlier than the first day after the end of a three‑month period beginning with the day the proclamation is published in the Gazette. Draft the proclamation and timing to satisfy that minimum notice requirement. If a change of intention is necessary, use the revocation pathway in s 5(3)-(5), but only if the revocation is published before the fixed termination day; otherwise the revocation has no effect.

• Ensure formal publication steps are followed. The statutory mechanics hinge on publication in the Gazette (s 5(2) and s 5(3)-(5)). Legal effect depends on the timing of gazettal and any revocation. Make sure administrative officers handling gazette publication are aware of the statutory timing constraints.

For Commonwealth drafters (if exercising the referred power)

• Draft substantive law within the defined subject matter. Any federal statute enacted pursuant to the referral should expressly align its application to "superannuation matters" as defined by the Act (s 3(1)) and respect the exclusion of death‑based breakdowns (s 4(1)). Drafting should take account of the Act’s broad definition of distribution (s 3(3)(b)), which includes conferral of rights or obligations.

• Address transitional and retrospective questions. The Act’s s 3(4) extends to relationships that ended before commencement; Commonwealth drafters should decide whether and how to apply the substantive law to historic cases. Because the Act does not provide transitional rules, the Commonwealth statute should specify commencement, savings and transitional arrangements for clarity.

• Consider separate treatment for same‑sex and different‑sex breakdowns. The two independent paragraphs in s 4(1) and s 4(2) permit different legislative choices. If the Commonwealth wishes to legislate differently for same‑sex and different‑sex cases, the drafting should be explicit.

For superannuation administrators, trustees, employers, legal advisers and litigants

• Monitor Gazette and parliamentary action for commencement/termination. Section 2 makes commencement by proclamation (and the compilation shows actual commencement dates), and s 5 governs termination proclamations with minimum notice via Gazette publication. Administrators must track those publications to determine whether a Commonwealth law made under the referral is in force, whether the reference has been terminated, and when any legal obligations begin or end.

• Check whether the Commonwealth has enacted law under the referral. The Act confers power but does not itself create obligations for administrators or trustees (s 4(1)). Administrators and advisers must locate any Commonwealth statutes made under the referral to determine applicable obligations, including record‑keeping, splitting procedures, notifications, and compliance mechanisms.

• Assess whether a client’s facts fall within the Act’s definitions. For client matters, check whether the relationship is a "de facto relationship" as defined (s 3(1)), whether the breakup was by death (excluded by s 4(1)), and whether the relationship ended before the Act’s operation (s 3(4)). Also consider overlapping relationships under s 3(2).

• Prepare for possible federal court jurisdiction. The Act indicates the Family Court of Western Australia might be invested with jurisdiction under s 77(iii) if the Commonwealth chooses to do so (s 1(2)). Practitioners should verify whether any federal legislative scheme invests jurisdiction in particular courts and adjust filing strategies, time limits and procedural expectations accordingly.

• Manage record and document retention. Given the Act contemplates distribution and conferral of rights in relation to prospective superannuation entitlements (s 3(1)), administrators and trustees should retain documents that establish entitlements, membership history and contributions for former and current de facto partners, particularly because s 3(4) brings pre‑commencement relationships within potential scope.

• Advise clients on timing risks. Because the referral can be terminated by proclamation following parliamentary resolution (s 5(6)), and because the Act permits revocation subject to timing (s 5(3)-(5)), clients with prospective claims should be advised that the applicable legal regime may change depending on State parliamentary action and subsequent Commonwealth laws. Legal advice should therefore include monitoring for proclamations and Commonwealth legislative developments.

In short, compliance with the Act’s legal mechanics requires State actors to follow the procedural requisites in s 5; for private parties and administrators, compliance depends primarily on identifying whether Commonwealth legislation has been enacted under the referral and, if so, complying with its substantive and procedural requirements. The Act supplies the referral framework and the definitional boundaries (s 3 and s 4); it does not itself create substantive compliance obligations beyond those institutional steps.