Part 3Application, saving and transitional provisions
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Turn the raw legal text into a practical explanation grounded in Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Orders 2004.
Part 3 Application, saving and transitional provisions
3.01 Amendment made by the Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Amendment Orders 2023
Schedule 1 Methods and factors used to determine scheme value in relation to member spouse
Part 1 Methods
Part 2 Scheme factors
Schedule 2 Annuity Factors for non‑member spouses
Schedule 3 Annuity Factors for member spouses
Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Part 1 Preliminary
1.01 Name of Orders
These Orders are the Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Orders 2004.
1.03 Definitions
(1) In these Orders:
Act means the Parliamentary Contributory Superannuation Act 1948.
actuary means a person who is a Fellow or Accredited Member of the Institute of Actuaries of Australia.
family law commencement day means 18 May 2004.
Note Part 1 of these Orders commenced on 18 May 2004.
FL Act means the Family Law Act 1975.
Secretary means the Secretary of the Finance Department.
Note Several other words and expressions used in these Orders have the meaning given by subsection 4 (1) of the Act, including parliamentary allowance.
Note: In this context, member is defined in subsection 4 (1) of the Act to mean a member of either House. A member spouse is also defined in the Act, but uses the word member in a different sense.
(2) An expression that is used in these Orders, and defined in section 22CA of the Act, has the meaning given by that section.
Note Section 22CA of the Act defines expressions including applicable additional percentage, applicable basic percentage, non‑member spouse, operative time and transfer amount. Some expressions are defined in section 22CA to have the same meaning as in the FL Act.
Part 2 Orders relating to certain amounts and rates
2.01 Scheme value — member spouse with no surcharge debt
(1) This section applies if the most recent member information statement provided to a member spouse before the operative time did not show a debit in the member spouse’s surcharge debt account.
Part Part 3 - Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Orders 2004 - Application, saving and transitional provisions | Zoe
(2) For the definition of scheme value in section 22CA of the Act:
(a) if the operative time was before the family law commencement day, the scheme value in relation to the member spouse is the family law value; and
(b) if the operative time is on or after the family law commencement day:
(i) the scheme value in relation to the member spouse is determined using the methods and factors set out in Schedule 1 as in force at the operative time; or
(ii) if it is not possible to determine the scheme value using those methods and factors, the scheme value in relation to the member spouse is to be determined by an actuary appointed by the Secretary for this section.
2.01A Scheme value — member spouse with surcharge debt
(1) This section applies if the most recent member information statement provided to a member spouse before the operative time (the statement) showed a debit in the member spouse’s surcharge debt account.
(2) For the definition of scheme value in section 22CA of the Act, and subject to subsections (3) to (6):
(a) if the operative time was before the family law commencement day, the scheme value in relation to the member spouse is the family law value; and
(b) if the operative time is on or after the family law commencement day:
(i) the scheme value in relation to the member spouse is determined using the methods and factors set out in Schedule 1 as in force at the operative time; or
(ii) if it is not possible to determine the scheme value using those methods and factors, the scheme value in relation to the member spouse is to be determined by an actuary appointed by the Secretary for this section.
(3) If:
(a) it is necessary to work out the scheme value for the purpose of the definition of transfer amount in section 22CA of the Act; and
(b) the operative time is on or after the day on which this subsection commences;
the scheme value is the value identified under subsection (2), reduced by the amount of the member spouse’s surcharge debt shown in the statement.
(4) If:
(a) it is necessary to work out the scheme value for the purpose of the definition of transfer factor in section 22CA of the Act; and
(b) the operative time is on or after the day on which this subsection commences;
the scheme value is the value identified under subsection (2).
(5) If the operative time was before the family law commencement day, the transfer factor in relation to the member spouse is to be recalculated by:
(a) identifying the scheme value that had previously been used to calculate the transfer factor; and
(b) adding to that scheme value the amount of the member spouse’s surcharge debt shown in the statement; and
(c) using the result of paragraph (b) to recalculate the transfer factor.
(6) If the operative time was on or after the family law commencement day, and before the day on which this subsection commences, the transfer factor in relation to the member spouse is to be recalculated by:
(a) identifying the scheme value that had previously been used to calculate the transfer amount as part of calculating the transfer factor; and
(b) subtracting from that scheme value the amount of the member spouse’s surcharge debt shown in the statement; and
(c) recalculating the transfer amount using the reduced scheme value calculated under paragraph (b); and
(d) using the result of paragraph (c), and the unreduced scheme value identified under subsection (2), to recalculate the transfer factor.
2.02 Annual rate of associate immediate annuity
(1) For subsection 22CD (2) of the Act, this section applies if standard allowance or annuity is payable in respect of an original interest.
(2) The annual rate of associate immediate annuity payable to a non‑member spouse to whom subsection 22CD (2) of the Act applies is calculated as follows:
Step 1
Identify the transfer amount in relation to the non‑member spouse.Note Subsection 22CD (2) of the Act requires the rate of associate immediate annuity to be calculated by reference to the transfer amount.
Step 2
Work out an annuity factor (F y+m) based on the non‑member spouse’s gender and age, using the formula:where:Fy is the valuation factor mentioned in Table 1 in Schedule 2 applicable, at the operative time, to the non‑member spouse’s gender and age in completed years (represented by y).m is the number of completed months of the non‑member spouse’s age, at the operative time, that are not included in the non‑member spouse’s age in completed years.Fy+1 is the valuation factor mentioned in Table 1 in Schedule 2 that would apply to the person if the person’s age in completed years was one year more than it is at the operative time.Note The associate immediate annuity does not include a reversionary component.
Step 3
Divide the transfer amount identified in step 1 by the annuity factor worked out in step 2.The result is the annual rate of the associate immediate annuity.
Step 4
The annual rate is to be increased in the same way, and at the same time, as the rate of parliamentary allowance is increased.
Note If there is a decrease in the rate of parliamentary allowance, section 22T of the Act deals with the relationship between a member’s retiring allowance and the member’s parliamentary allowance. This is also relevant to the non‑member spouse’s associate immediate annuity.
(3) However, if it is not possible to calculate the annual rate of associate immediate annuity using subsection (2), the annual rate of associate immediate annuity payable to a non‑member spouse to whom subsection 22CD (2) of the Act applies is to be calculated by an actuary appointed by the Secretary for this section.
2.03 Annual rate of associate deferred annuity
(1) For subsection 22CE (1) of the Act, the annual rate at which an associate deferred annuity is to be paid is calculated as follows:
Step 1
Identify the transfer amount at the operative time.
Step 2A
Increase the transfer amount for any period between the operative time and the time at which the associate deferred annuity first becomes payable, using the Treasury bond rate for the last working day of the financial year ending immediately before the period for which the increase is being calculated for bonds with a 10 year term.Note The period between the operative time and the time at which the associate deferred annuity first becomes payable may include a number of full financial years, or may occur entirely within a single financial year.Treasury bond rate for bonds with a 10 year termThe Treasury bond rate for the last working day of a financial year for bonds with a 10 year term is:(a) if any Treasury bonds with that term were issued on that day — the annual yield on those bonds; or(b) in any other case — the annual yield on Treasury bonds with that term, as published by the Reserve Bank of Australia for that day.
Calculation of increase in transfer amountThe increase in the transfer amount is calculated:(a) at the end of each financial year that occurs between the operative time and the time at which the associate deferred annuity first becomes payable; and(b) immediately before the associate deferred annuity first becomes payable;using the applicable Treasury bond rate for the relevant period worked out in steps 2B, 2C and 2D, and compounded period by period.
Step 2B
First periodIdentify the shorter of:(a) the period between the operative time and the end of the financial year in which the operative time occurs; and(b) the period between the operative time and the time at which the associate deferred annuity first becomes payable.This is the first period.Multiply the number of days in the first period by the Treasury bond rate for bonds with a 10 year term that is applicable to the financial year in which the first period occurs, and divide the result by 365.Round the result to 3 decimal places.The result is the applicable Treasury bond rate for the first period.
Step 2C
Full financial years (if any)Use this step if a full financial year occurs immediately after the end of the first period and before the associate deferred annuity first becomes payable. This is the second period.Identify the Treasury bond rate for bonds with a 10 year term that is applicable to the financial year.Round the result to 3 decimal places.The result is the applicable Treasury bond rate for the second period.Repeat this arrangement for each full financial year after the second period.
Step 2D
Final period (if any)Use this step if:(a) there is any period between the end of a financial year and the time at which the associate deferred annuity first becomes payable; and(b) neither step 2B nor step 2C covers that period.This is the final period.Multiply the number of days in the final period by the Treasury bond rate for bonds with a 10 year term that is applicable to the financial year in which the final period occurs, and divide the result by 365.Round the result to 3 decimal places.The result is the applicable Treasury bond rate for the final period.
Step 3
Work out an annuity factor (F y+m) based on the non‑member spouse’s gender and age, using the formula:where:Fy is:(a) if the associate deferred annuity is not payable on permanent incapacity — the valuation factor mentioned in Table 2A in Schedule 2, applicable, when the associate deferred annuity first becomes payable, to the non‑member spouse’s gender and age in completed years (represented by y); and(b) if the associate deferred annuity is payable on permanent incapacity — the valuation factor mentioned in Table 2B in Schedule 2, applicable, when the associate deferred annuity first becomes payable, to the non‑member spouse’s gender and age in completed years (represented by y).m is the number of completed months of the non‑member spouse’s age, when the associate deferred annuity first becomes payable, that are not included in the non‑member spouse’s age in completed years.Fy+1 is:(a) if the associate deferred annuity is not payable on permanent incapacity — the valuation factor mentioned in Table 2A in Schedule 2, applicable, when the associate deferred annuity first becomes payable, to the non‑member spouse’s gender and age in completed years if the person’s age in completed years was one year more than it was at that time; and
(b) if the associate deferred annuity is payable on permanent incapacity — the valuation factor mentioned in Table 2B in Schedule 2, applicable, when the associate deferred annuity first becomes payable, to the non‑member spouse’s gender and age in completed years if the person’s age in completed years was one year more than it was at the operative time.Note The associate deferred annuity does not include a reversionary component.
Step 4
Divide the transfer amount, as increased in step 2A, by the annuity factor worked out in step 3.The result is the annual rate of associate deferred annuity.
Step 5
The annual rate is to be increased in the same way, and at the same time, as the rate of parliamentary allowance is increased.
Note If there is a decrease in the rate of parliamentary allowance, section 22T of the Act deals with the relationship between a member’s retiring allowance and the member’s parliamentary allowance. This is also relevant to the non‑member spouse’s associate deferred annuity.
(2) However, if it is not possible to work out an annuity factor using step 3 in subsection (1), the annuity factor is to be worked out by an actuary appointed by the Secretary for this section.
2.04 Amount payable if non‑member spouse dies before associate deferred annuity becomes payable
For subsection 22CE (7) of the Act, the amount payable in respect of the death of a non‑member spouse is a lump sum equal to the transfer amount, increased in the way described in step 2A in subsection 2.03 (1) if an associate deferred annuity had become payable at the date of death.
2.05 Commutation of small associate annuity — maximum amount
(1) For paragraph 22CF (1) (a) of the Act, the amount is $1 300.
(2) For paragraph 22CF (1) (b) of the Act, the amount is $1 300.
(3) An amount mentioned in subsection (1) or (2) is to be increased in the same way, and at the same time, as the rate of parliamentary allowance is increased.
Note If there is a decrease in the rate of parliamentary allowance, section 22T of the Act deals with the relationship between a member’s retiring allowance and the member’s parliamentary allowance. This is also relevant to the amount worked out under this section.
2.06 Commutation of small associate annuity — lump sum payable on election
For paragraph 22CF (3) (b) of the Act, the amount of the lump sum is an amount equal to the transfer amount, increased in the way described in step 2A in subsection 2.03 (1).
2.07 Reduction of associate annuity where original interest is entitlement to associate deferred annuity
For subsection 22CI (2) of the Act, the annual rate of an associate deferred annuity is to be reduced as follows:
Step 1
Identify the transfer amount at the operative time.
Step 2
Increase the transfer amount as if it were the lump sum amount calculated in step 2A in subsection 2.03 (1) when the associate deferred annuity becomes payable.Note A lump sum amount is increased under section 2.03 only if there is a period between the operative time and the time at which benefits first become payable. Therefore, in a particular case, it is possible that the transfer amount will not need to be increased in this step.
Step 3
Identify the lump sum value of the associate deferred annuity, as calculated under subsection 22CE (1) of the Act to the date of payment.Note The lump sum value of the associate deferred annuity represents the increased transfer amount worked out under section 2.03.If the lump sum value of the associate deferred annuity has previously been reduced in accordance with these Orders, the reduction must be taken into account.
Step 4
Reduce the lump sum value of the associate deferred annuity as identified in step 3 by the increased transfer amount worked out in step 2.
Step 5
Substitute the reduced lump sum amount worked out in step 4 for the lump sum calculated in step 2A in subsection 2.03 (1), for payment under section 22CE.
Example for section 2.07
A member spouse has an entitlement to associate deferred annuity. The scheme value of those benefits at the operative time is $300 000.
The agreement served on the Secretary specifies that half of the interest is to be transferred to the non‑member spouse. Therefore, the transfer amount is $150 000.
Step 1 identifies the transfer amount to be $150 000.
Step 2 increases the transfer amount to the day on which the associate deferred annuity becomes payable to the non‑member spouse.
The $150 000 is increased by the bond rate to $160 000.
Step 3 calculates the lump sum value of the associate deferred annuity.
The $300 000 is increased by the bond rate to $320 000.
Step 4 reduces the lump sum value of the associate deferred annuity by the amount calculated in Step 2.
The $320 000 is reduced by $160 000, leaving $160 000.
Step 5 provides that the reduced lump sum value ($160 000) is to be substituted for the lump sum calculated in step 2A in subsection 2.03 (1) to calculate the rate of associate annuity under section 22CE of the Act.
2.08 Reduction of standard allowance or annuity
(1) For subsection 22CJ (1) of the Act, this section applies if standard allowance or annuity is payable to a member spouse in respect of an original interest.
(2) If the allowance is a retiring allowance (including a retiring allowance that forms the basis of an annuity to a surviving spouse under section 19 of the Act), the amount to which the annual rate of retiring allowance, or the annual rate of annuity under section 19 payable in respect of an original interest, is to be reduced is calculated as follows:
Step 1
Identify the applicable basic percentage, and each applicable additional percentage, before the operative time.
Step 2
Multiply the applicable basic percentage identified in step 1 by the transfer factor.Multiply each applicable additional percentage identified in step 1 by the transfer factor.
Step 3
Reduce the applicable basic percentage identified in step 1 by the percentage worked out in step 2.Reduce each applicable additional percentage identified in step 1 by the applicable percentage worked out in step 2.
Step 4
Apply the reduced applicable basic percentage after the operative time to the rate of parliamentary allowance.The result is the annual rate of retiring allowance (other than additional retiring allowance), or the annual rate of the annuity under section 19 of the Act based on the retiring allowance.
Step 5
Apply each reduced applicable additional percentage after the operative time to:(a) the rate of the related salary payable in respect of a Minister of State; or(b) the rate of the related allowance by way of salary payable in respect of an office holder.The result is the annual rate of additional retiring allowance, or the annual rate of the annuity under section 19 of the Act based on the additional retiring allowance.
Note The reduction is to be disregarded in calculating the amount of any annuity payable under section 19AA of the Act in respect of a child of the member spouse after the member spouse’s death.
(3) If the annuity is an associate immediate annuity, the amount to which the annual rate of associate annuity payable in respect of an original interest is to be reduced is calculated as follows:
Step 1
Identify the annual rate of associate immediate annuity that was payable in relation to the member spouse immediately before the operative time.
Step 2
Work out an annuity factor (F y+m) based on the member spouse’s gender and age, using the formula:where:Fy is the valuation factor mentioned in Table 1 in Schedule 3, applicable, at the operative time, to the member spouse’s gender and age in completed years (represented by y).m is the number of completed months of the member spouse’s age, when the associate deferred annuity first becomes payable, that are not included in the member spouse’s age in completed years.
Fy+1 is the valuation factor mentioned in Table 1 in Schedule 3, applicable, at the operative time, to the member spouse’s gender and age in completed years if the person’s age in completed years was one year more than it was at that time.
Step 3
Multiply the annual rate of associate immediate annuity by the annuity factor worked out in step 2.
Step 4
Subtract the transfer amount from the amount worked out in step 3.
Step 5
Divide the amount worked out in step 4 by the annuity factor worked out in step 2.The result is the annual rate of associate immediate annuity payable after the operative time in respect of the original interest.
Step 6
The annual rate is to be increased in the same way, and at the same time, as the rate of parliamentary allowance is increased.
Note If there is a decrease in the rate of parliamentary allowance, section 22T of the Act deals with the relationship between a member’s retiring allowance and the member’s parliamentary allowance. This is also relevant to the member spouse’s annual rate of associate annuity.
(4) However, if it is not possible to reduce the annual rate of associate immediate annuity using subsection (3), the reduction of the annual rate of associate immediate annuity is to be calculated by an actuary appointed by the Secretary for this section.
(5) If the annuity is an associate deferred annuity, the amount to which the annual rate of associate deferred annuity payable in respect of an original interest is to be reduced is calculated as follows:
Step 1
Identify the annual rate of associate deferred annuity that would have been payable in relation to the member spouse immediately before the operative time.
Step 2
Work out an annuity factor (F y+m) based on the member spouse’s gender and age, using the formula:where:Fy is:(a) if the associate deferred annuity is not payable on permanent incapacity — the valuation factor mentioned in Table 2A in Schedule 3, applicable, when the associate deferred annuity first becomes payable, to the member spouse’s gender and age in completed years (represented by y); and(b) if the associate deferred annuity is payable on permanent incapacity — the valuation factor mentioned in Table 2B in Schedule 3, applicable, when the associate deferred annuity first becomes payable, to the member spouse’s gender and age in completed years (represented by y).m is the number of completed months of the member spouse’s age, when the associate deferred annuity first becomes payable, that are not included in the member spouse’s age in completed years.Fy+1 is:(a) if the associate deferred annuity is not payable on permanent incapacity — the valuation factor mentioned in Table 2A in Schedule 3, applicable, when the associate deferred annuity first becomes payable, to the member spouse’s gender and age in completed years if the person’s age in completed years was one year more than it was at that time; and(b) if the associate deferred annuity is payable on permanent incapacity — the valuation factor mentioned in Table 2B in Schedule 3, applicable, when the associate deferred annuity first becomes payable, to the member spouse’s gender and age in completed years if the person’s age in completed years was one year more than it was at the operative time.
Step 3
Multiply the annual rate of associate deferred annuity by the annuity factor worked out in step 2.
Step 4
Subtract the transfer amount from the amount worked out in step 3.
Step 5
Divide the amount worked out in step 4 by the annuity factor worked out in step 2.The result is the annual rate of associate deferred annuity payable after the operative time in respect of the original interest.
Step 6
The annual rate is to be increased in the same way, and at the same time, as the rate of parliamentary allowance is increased.
Note If there is a decrease in the rate of parliamentary allowance, section 22T of the Act deals with the relationship between a member’s retiring allowance and the member’s parliamentary allowance. This is also relevant to the member spouse’s annual rate of associate annuity.
(6) However, if it is not possible to reduce the annual rate of associate deferred annuity using subsection (5), the reduction of the annual rate of associate deferred annuity is to be calculated by an actuary appointed by the Secretary for this section.
Part 3 Application, saving and transitional provisions
3.01 Amendment made by the Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Amendment Orders 2023
(1) This section applies to an agreement or court order made under Part VIIIB or VIIIC of the Family Law Act 1975 on or after the commencement of the Superannuation (Family Law — Parliamentary Contributory Superannuation Act 1948) Amendment Orders 2023.
(2) Schedule 1, as amended by that instrument, applies in relation to the determination of the value of an interest in the Scheme identified in the agreement or order, whether the operative time in relation to the relevant payment split is before, on or after that commencement.