Family Law (Superannuation) (Provision of Information - NSW State Authorities Superannuation Scheme) Determination 2010

This Determination (Family Law (Superannuation) (Provision of Information , NSW State Authorities Superannuation Scheme) Determination 2010) prescribes, for a defined subset of superannuation interests held in the NSW State Authorities Superannuation Scheme, which items of information the trustee is required to provide and which items it is explicitly not required to provide under the Family Law (Superannuation) Regulations 2001. The Attorney‑General made the Determination under subregulations 64(7) and (7B) of the Regulations (preamble and s 5). It commenced the day after registration (s 2).

Mechanically, the Determination operates by reference to the table in s 5. For superannuation interests that are subject to methods and factors approved under Part 7 of Schedule 2 to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the M & F Approval), it:

• relieves the trustee of the NSW State Authorities Superannuation Scheme from providing the information otherwise listed in certain paragraphs of reg 64(4) of the Regulations (the Determination specifies the particular paragraphs omitted for the relevant items); and
• requires the trustee to provide a defined set of alternative or additional information specific to that type of interest (set out in column 4 of the table in s 5 for Items 1-4).

The Determination is narrowly targeted. It applies only to superannuation interests in the NSW State Authorities Superannuation Scheme for which a method and factors have been approved under Part 7 of Schedule 2 to the M & F Approval (s 4). The table in s 5 divides those interests into four categories corresponding to clauses 2, 5, 6 and 9 of Part 7 of Schedule 2 to the M & F Approval, and for each category specifies (a) which parts of reg 64(4) the trustee need not provide and (b) a tailored list of information that the trustee must provide (s 5 and the table).

The Determination imports terminology and reference points from other instruments. It defines early release debt account, refers to definitions in the NSW State Authorities Superannuation Act 1987 (NSW), the Local Government and Other Authorities (Superannuation) Act 1927 (NSW), and the State Authorities Superannuation (Closed Local Government Schemes Transfer) Regulation (s 3). It also relies on provisions of the NSW State Authorities Superannuation Act when describing events the trustee must record or report (for example, payments or rollovers under paragraph 45I(3) and adjustments under s 16 of that NSW Act, cited in the table).

In short, the Determination replaces parts of the generic disclosure template in reg 64(4) for certain NSW State Authorities Superannuation Scheme interests with a tailored disclosure schedule that emphasises particular valuation quantities, dates, account balances and statutory adjustments tied to the NSW scheme rules and to the M & F Approval’s Part 7 valuation methodology (s 5, table).

The Determination’s structure and language implement two key concepts: (1) selective substitution of the disclosure required by the family law superannuation disclosure regime, and (2) cross‑referencing scheme‑specific valuation methodology and statutory concepts so trustees provide information that maps to how the interest is valued under the M & F Approval.

Scope and substitution: The Regulations set out a standard disclosure matrix in reg 64(4) and related paragraphs. The Determination uses the power in subregulations 64(7) and (7B) of the Regulations to specify that, for certain NSW State Authorities Scheme interests, the trustee is not required to provide some of the information listed in those paragraphs (s 5(a) and the table). Instead, the trustee must provide the particular data items listed in the table’s column 4 (s 5(b)). The result is a substitution: some generic data items are withdrawn and replaced with scheme‑specific items.

Scheme‑specific valuation alignment: The Determination requires trustees to provide, for relevant transactions or for the interest as a whole, values or component figures that are to be determined in accordance with clauses of Part 7 of Schedule 2 to the M & F Approval (see repeated references to “determined in accordance with clause 2 of Part 7”, “clause 6 of Part 7”, and definitions such as ABP, B, C, CFB, AR, EFB, ABPe, Be, Ce, NA, and so on). This embeds the M & F Approval’s method and factor structure into the disclosure the trustee must supply (table column 4 for Items 1-3). The Determination therefore does not operate in isolation: it prescribes which fields must be supplied but points the trustee (and any requesting party) to the M & F Approval to understand how those fields should be calculated or interpreted.

Cross‑instrument references and imported meanings: Section 3(2) of the Determination provides that an expression used both in the Determination and in the NSW State Authorities Superannuation Act has the same meaning here as in that NSW Act. The Determination also explicitly uses terms and concepts from the NSW State Authorities Superannuation Act (for example, subsection 3(1) meanings for “entry date”, s 43B/43C benefits, paragraph 45I(3) transfers/releases), the State Authorities Superannuation Regulation 2010 (the “early release debt account” from subreg 19(3)), the Local Government and Other Authorities (Superannuation) Act 1927 (Provident Fund, Benefits Fund) and the Closed Local Government Schemes Transfer Regulation (current insurance policy). The Determination thereby requires trustees to map scheme records and statutory constructs into the disclosure fields (s 3(1), s 5 table).

Primary legal actors named in the Determination are the trustee of the NSW State Authorities Superannuation Scheme and persons who hold the covered superannuation interests. The trustee’s duties (not to supply some of the generic reg 64(4) items, and to supply the scheme‑specific items set out in the table) are the instrument’s operational core (s 5(a)-(b) and the table). The Determination applies only to a subset of interests: those for which a method and factors have been approved under Part 7 of Schedule 2 to the M & F Approval (s 4). So the immediate universe of affected members is limited to scheme members whose interest falls within clauses 2, 5, 6 or 9 of Part 7 of Schedule 2 (the table’s four items).

Family law applicants and their advisers: Parties in family law property proceedings who seek information from the scheme trustee under reg 64 (for example, in order to value a superannuation interest for property settlement) will be affected in two ways. First, a requesting party will receive a different set of data fields from the NSW Scheme trustee than from a trustee of another scheme whose interests are not captured by this Determination. Second, some of the generic information that the Regulations otherwise require (those paragraphs of reg 64(4) specifically identified in the table) will be absent, and the requesting party must work with the alternative fields supplied under the Determination (s 5).

Courts and valuers: Family law courts and any actuaries, valuers or accountants engaged to apply the M & F Approval valuation methods will be affected because the Determination requires trustees to supply the specific components (such as ABP, B, C, CFB, AR, EFB, ABPe, Be, Ce, NA) used in Part 7 valuation methods (table entries). Accurate valuation under the M & F Approval depends on those components being produced and on their being calculated consistently with the referenced clauses.

Other government entities and scheme administrators: The Determination references adjustments the State Transit Authority (STC) would make under s 16 of the NSW State Authorities Superannuation Act in a hypothetical payment scenario (table Item 2(k)). Administering that disclosure requires knowledge and application of the NSW Act’s s 16 rules by either the trustee or its administrators and therefore will involve scheme administrative staff and possibly counsel or in‑house officers familiar with the NSW Act.

Practitioners advising clients: Family law solicitors and barristers who prepare disclosure requests and advise on splitting orders, superannuation agreements and flag lifting agreements need to be aware that the trustee’s statutory disclosure will be bespoke to the Part 7 interests. They must cross‑reference the M & F Approval Part 7 definitions and NSW scheme law (the Determination imports meanings via s 3(2)) to interpret the data supplied.

Duties imposed on the trustee

• Provide the specified information for each category of covered interest. Section 5(b) requires the trustee of the NSW State Authorities Superannuation Scheme to provide any information about the interest mentioned in column 4 of the table for a superannuation interest identified in column 2. The table’s column 4 lists detailed data elements for each of the four itemised categories (Items 1-4). Those data elements include scheme‑specific valuation components (for example ABP, B, C, CFB, AR, EFB, ABPe, Be, Ce, NA), dates of birth, entry dates (per subsection 3(1) of the NSW Act), balances of the early release debt account (subreg 19(3) of the State Authorities Superannuation Regulation 2010 (NSW)), and event‑based records tied to paragraph 45I(3) of the NSW State Authorities Superannuation Act (payments/releases and transfers/rollovers to superannuation funds or retirement savings accounts) (table).

• Produce, for each splitting order, superannuation agreement or flag lifting agreement served on the trustee, the date of any payment/release or transfer/rollover under paragraph 45I(3) and, for each such transaction, the value of the entitlement under the order immediately before the transaction and the value of the interest immediately before the transaction, determined in accordance with the applicable clause of Part 7 of Schedule 2 to the M & F Approval (table Items 1-3).

• Disclose certain scheme status indicators. For Item 2 interests, the trustee must disclose whether the person was the holder of a current insurance policy as defined in the Closed Local Government Schemes Transfer Regulation, and whether the person was a contributor to the Provident Fund or the Benefits Fund as defined in the Local Government Superannuation Act (table Item 2(g)-(j)).

• Calculate and disclose the hypothetical STC adjustment amounts for specified payments/transfers, i.e. the amount of any adjustment STC would make under s 16 of the NSW State Authorities Superannuation Act if STC were to pay the balance of the contributor’s account and the balance had remained equal to the spouse’s entitlement over the period in question (table Item 2(k)(iii)-(iv)). This requires application of s 16 of the NSW Act to a constructed hypothetical scenario.

Exemptions from duty

• Do not provide certain standard reg 64(4) information. For the listed interests, s 5(a) and the table explicitly relieve the trustee from providing the information mentioned in specified paragraphs of reg 64(4) (for Items 1 and 2: paragraphs 64(4)(a), (b) and (d)-(i); for Item 3: paragraphs 64(4)(a)-(i) and 64(4A)(a)-(c); for Item 4: the subparagraphs 64(3)(b)(ii), (iv) and (v)). The Determination therefore creates a statutory ceiling and floor: certain generic data need not be provided; certain scheme‑specific data must be.

The Determination itself does not create express penalty provisions, fines, or enforcement mechanisms. It operates by exercising the power in subregulations 64(7) and 64(7B) of the Family Law (Superannuation) Regulations 2001 to prescribe what information trustees must or need not provide; the Regulations and the Family Law Act 1975 contain the broader statutory framework that governs disclosure obligations and any remedies for non‑compliance (preamble and s 5). The Determination therefore should be read as an instrument that modifies the content of the trustee’s disclosure duties rather than one that sets out sanctions.

What this means for enforcement and compliance risk

• Enforcement must be sought under the parent instruments. If a requesting party believes the trustee has breached its disclosure obligation, the relevant cause of action or enforcement route will be found in the Family Law Act and the Family Law (Superannuation) Regulations 2001 rather than in this Determination. Practitioners should therefore check the relevant provisions of the Regulations (for example, reg 64 and neighbouring provisions, and subreg 64(7)/(7B) which are the enabling provisions) and the Family Law Act for remedies or penalties that might apply.

• Administrative and evidentiary significance. Because the Determination prescribes the exact information a trustee must provide for the specified interests, failure by the trustee to provide those items could form the factual basis for an enforcement application or for correspondence seeking compliance under the Family Law Act/regulations. However, the Determination itself does not amplify the available remedies or provide additional sanctioning powers; it specifies content.

• Potential interaction with NSW scheme law consequences. The Determination requires trustees to disclose items that reference events and calculations under the NSW State Authorities Superannuation Act (for example the hypothetical STC adjustment under s 16). If a trustee fails to calculate or disclose those items, there may be administrative consequences within the scheme’s governance (for example, audit findings or internal compliance responses), but such internal consequences are not defined in the Determination and must be located in scheme rules or NSW law.

• No express private right to damages in the Determination. The instrument does not create a private cause of action or an express entitlement to damages for non‑provision of information. Any civil or equitable remedy would arise from the broader legislative framework or common law, not from the Determination text.

This Determination is explicitly designed to sit within and interact with several named instruments and Acts. The Determination repeatedly cross‑references the Family Law (Superannuation) Regulations 2001 (the Regulations), the Family Law Act 1975, the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the M & F Approval), the State Authorities Superannuation Act 1987 (NSW) (the NSW State Authorities Superannuation Act), the State Authorities Superannuation Regulation 2010 (NSW), the State Authorities Superannuation (Closed Local Government Schemes Transfer) Regulation, and the Local Government and Other Authorities (Superannuation) Act 1927 (NSW) (the NSW Local Government Superannuation Act). The Determination imports meaning and shapes disclosure obligations through those instruments (preamble, s 3(1)-(2), s 5).

Regulatory linkage: The Determination uses the power in subregulations 64(7) and (7B) of the Regulations to specify what trustees must or need not provide. The Regulations thus remain the procedural anchor that authorises and channels disclosure requests and timelines. The Determination alters the content of what must be provided when the trustee receives a disclosure request under the Regulations for the particular Part 7 interests (s 5). Consequently, the interaction is hierarchical: the Regulations provide the enabling force; the Determination tailors content for the NSW Scheme.

M & F Approval dependency: The Determination applies only to interests for which methods and factors are approved under Part 7 of Schedule 2 to the M & F Approval (s 4). It requires trustees to provide valuation components and values “determined in accordance with” specific clauses of Part 7 for particular items (table). Therefore, the way the items in column 4 must be calculated is not self‑contained in the Determination; one must read the M & F Approval’s Part 7 to interpret the fields (for example, ABP, B, C, ABPe, Be, Ce, CFB, AR, EFB, NA, and the valuation clauses themselves). The Determination and the M & F Approval operate together: the Determination specifies which inputs to supply; the M & F Approval specifies how to compute those inputs for valuation purposes.

NSW State Authorities Superannuation Act and related NSW instruments: The Determination repeatedly refers to substantive provisions of the NSW State Authorities Superannuation Act. Examples include:

• Entry dates and definitions from subsection 3(1) of the NSW Act (table Items 1-3).
• Release of benefits under subsections 43B(1) and 43C(1) (table Items 1-2: early release debt account balances).

The text provided includes only the instrument as made and dated 21 December 2010 by the Attorney‑General, Robert McClelland, and records that it “commences on the day after it is registered” (preamble and s 2). The Determination identifies itself by name and year (s 1). The note at the end advises that legislative instruments and compilations are registered on the Federal Register of Legislative Instruments (FRLI).

From the instrument as supplied, there are no recorded amendments, variations, revocations, or subsequent replacement provisions contained in the document itself. The Determination does not list any amending instruments or give a history table of previous versions in its text. As drafted, the Determination should be read as the 2010 instrument made under subregulations 64(7) and (7B) of the Regulations that took effect the day after registration.

What the Determination’s text implies about amendment tracking and the due diligence practitioners must do

• Check FRLI or legislation.gov.au for subsequent instruments. The Determination’s note explicitly points to the Federal Register of Legislative Instruments as the repository for legislative instruments and compilations. Practitioners seeking the current status, any later revocations, or amendments to this Determination will need to consult FRLI or other official repositories to confirm whether this 2010 Determination remains in force, has been varied, or has been repealed.

• Cross‑check with the M & F Approval and the Regulations. Since the Determination depends on the M & F Approval (2003) Part 7 for scope and computation, any amendments to the M & F Approval or to the Family Law (Superannuation) Regulations 2001 could alter the Determination’s practical effect even if the Determination text itself remains unamended. Practitioners should verify the current text of the M & F Approval and of the Regulations to ensure alignment.

• Changes to NSW law may affect interpretation. The Determination imports definitions and references to provisions of the NSW State Authorities Superannuation Act and related NSW regulations. Amendments to those NSW instruments after 2010 could change the meanings of expressions or the computation of things like STC adjustments, early release debt account balances, or the meaning of “entry date”. Users should confirm the current versions of those NSW instruments.

• No transitional or expiry provisions in the Determination. The instrument contains no express sunset, periodic review clause, or transitional provisions within its text. Any lifecycle modifications (amendment, repeal) would be effected by subsequent legislative instruments or by changes in the Regulations or M & F Approval framework.

The Determination’s text does not record any litigation, court decisions, or administrative appeals relating to its interpretation or application. It names no cases and includes no references to judicial consideration. The instrument is purely a statutory determination prescribing disclosure obligations for the NSW State Authorities Superannuation Scheme within the family law disclosure framework.

What this absence means in practice

• No cases are cited in the Determination. There are no judicial authorities, reported decisions, or appeals embedded in the instrument text that would clarify how the courts have construed the Determination’s provisions, for example in disputes about whether information provided satisfied the Determination’s required fields, or about whether a trustee had lawfully relied on the Determination to withhold certain reg 64(4) items.

• Reliance on primary legislation and the M & F Approval. In the absence of litigation, interpretation questions about the Determination’s interplay with the M & F Approval or the NSW State Authorities Superannuation Act would need to be resolved by reference to those instruments and to general principles of statutory interpretation and administrative law. Practitioners should therefore perform anticipatory work,cross‑referencing clause language in Part 7 of the M & F Approval and the cited NSW provisions,to minimise uncertainty.

• Potential for future litigation but none recorded here. The Determination’s operation (replacing certain reg 64(4) items with scheme‑specific fields) could be the subject of future disputes,e.g. whether a trustee’s calculation complies with a Part 7 clause, or whether the Determination permits withholding particular items,but the instrument contains no reported litigation as of its text. Users should search case databases and FRLI history to identify any later litigation that might not be reflected in the instrument text.

In short, the Determination as supplied contains no litigation history; questions of judicial interpretation must be addressed by examining the relevant primary instruments or by checking subsequent case law outside this document.

The Determination creates several operational and interpretive pitfalls for trustees, advisers, valuers and litigants. These “gotchas” derive from its selective substitution of disclosure fields, deep cross‑referencing to other instruments, and event‑driven obligations.

1. Limited scope but high dependence on external instruments

• Gotcha: The Determination applies only to interests for which methods and factors have been approved under Part 7 of Schedule 2 to the M & F Approval (s 4). Trustees and practitioners might assume it applies to all NSW scheme interests or to a broader class of Part 7 variations. The precise scope is clause‑specific: the table lists clause 2, clause 5, clause 6 and clause 9 interests of Part 7. Misidentifying which clause applies to an interest will lead to incorrect expectations about what data the trustee must provide.

• Practical implication: Requesting parties must identify the interest’s categorisation under Part 7 before designing disclosure requests; trustees must be confident their classification aligns with the M & F Approval.

2. Missing generic reg 64(4) items

• Gotcha: For covered interests the trustee is explicitly not required to provide certain paragraphs of reg 64(4) (for example, paragraphs 64(4)(a), (b) and (d)-(i) for Items 1 and 2). Those omitted fields may be commonly relied upon by practitioners for cross‑checking or for assembling a valuation. The Determination therefore removes some of the “expected” data that parties outside NSW or in other schemes would receive.

• Practical implication: Advisers must anticipate and plan for the absence of those generic items and prepare to interpret the scheme‑specific components the trustee does supply. If a missing reg 64(4) item is critical, alternative legal routes (court orders) or supplementary requests may be needed.

3. Heavy reliance on M & F Approval Part 7 terminology and calculations

• Gotcha: The Determination requires production of component quantities and values that are defined or computed under specific clauses of Part 7 of the M & F Approval (for example ABP, ABPe, Be, Ce, CFB, AR, EFB, NA). The Determination does not explain how to compute those items; it requires trustees to apply the M & F Approval and requires requestors and valuers to understand the Part 7 methodology.

Compliance with this Determination requires a multi‑step, instrument‑aware approach. The following operational checklist maps the Determination’s requirements to practical tasks trustees and advisers should undertake. Where the Determination cites other instruments, the checklist points to those instruments as necessary reference documents.

1. Confirm applicability to the interest

• Action: Determine whether the member’s superannuation interest is one “for which a method and factors have been approved under Part 7 of Schedule 2 to the M & F Approval” (s 4). Identify which clause of Part 7 (clause 2, 5, 6 or 9) corresponds to the interest.

• Rationale: The Determination applies only to Part 7 interests and has different disclosure fields depending on the clause. Misclassification will lead to incorrect disclosure.

2. Identify the relevant table item and omitted reg 64 fields

• Action: Once the Part 7 clause is established, identify the corresponding Item in the Determination’s table (Item 1 = clause 2; Item 2 = clause 5; Item 3 = clause 6; Item 4 = clause 9). Note which paragraphs of reg 64(4) or subparagraphs of reg 64(3)(b) the trustee is not required to provide for that item (s 5(a) and the table).

• Rationale: This clarifies what the trustee must not be expected to produce and prevents unnecessary work or erroneous refusals.

3. Assemble the specified disclosure fields

• Action: For the relevant Item, assemble the information required in column 4. This will typically include:

  • Defined components from the M & F Approval Part 7 (for example ABP, B, C, ABPe, Be, Ce, CFB, AR, EFB, NA). Cross‑reference the Part 7 definitions to ensure consistent labelling.

  • Member details: date of birth; entry date (as defined in subsection 3(1) of the NSW State Authorities Superannuation Act).

  • Account balances: the balance of the early release debt account for any benefit released under subsections 43B(1) or 43C(1) of the NSW State Authorities Superannuation Act (table Items 1-2).

  • For each splitting order, superannuation agreement or flag lifting agreement served on the trustee: the date of any payment or release under paragraph 45I(3)(a) and the date of any transfer or rollover under paragraph 45I(3)(b); for each such payment/release/transfer/rollover, provide (i) the value of the entitlement under the order immediately before the transaction and (ii) the value of the interest immediately before the transaction determined in accordance with the relevant Part 7 clause.