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PARLIAMENT OF VICTORIA
Constitution Amendment (Judicial Pensions) Bill
2007
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--CONSTITUTION ACT 1975 3
3 New section 5A inserted 3
5A Definitions relating to pensions 3
4 Amendment of references to spouses 7
5 Amendment of section 7A to apply subsections (8) to (22)
of section 83 8
6 Amendment of references to spouses 8
7 Amendment of section 83 to include child of partner 9
8 New subsections (8) to (22) inserted in section 83 9
PART 3--COUNTY COURT ACT 1958 16
9 New section 3AA inserted 16
3AA Definitions relating to pensions 16
10 References to spouses 20
11 Amendment of section 14 to include child of partner 21
12 New subsections (7) to (21) inserted in section 14 21
13 Amendment of references to spouses 27
14 Amendment of section 17B to include child of partner 28
15 Amendment of section 17B to apply subsections (7) to (21)
of section 14 28
PART 4--SUPREME COURT ACT 1986 29
16 Amendment of references to spouses 29
17 Amendment of section 104A to include child of partner 29
18 Amendment of section 104A to apply subsections (8) to (22)
of section 83 of the Constitution Act 1975 30
561022B.I-4/12/2007 i BILL LA INTRODUCTION 4/12/2007
Clause Page
PART 5--AMENDMENTS TO OTHER ACTS 31
19 Amendment of sections 4 and 6 of the Attorney-General and
Solicitor-General Act 1972 31
20 Amendment of section 10A of the Magistrates' Court
Act 1989 31
21 Amendment of sections 18 and 35 of the Public Prosecutions
Act 1994 31
PART 6--AMENDMENTS CONSEQUENTIAL ON THE
RELATIONSHIPS ACT 2007 33
22 Amendment of Constitution Act 1975 33
23 Amendment of County Court Act 1958 34
PART 7--REPEAL OF AMENDING ACT 35
24 Repeal of amending Act 35
ENDNOTES 36
561022B.I-4/12/2007 ii BILL LA INTRODUCTION 4/12/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Constitution Amendment (Judicial
Pensions) Bill 2007
A Bill for an Act to amend the Constitution Act 1975, the County
Court Act 1958, the Supreme Court Act 1986, the Attorney-
General and Solicitor-General Act 1972, the Magistrates' Court
Act 1989 and the Public Prosecutions Act 1994 and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to--
(a) amend the Constitution Act 1975, the
5 County Court Act 1958, the Supreme
Court Act 1986, the Attorney-General and
Solicitor-General Act 1972, the
Magistrates' Court Act 1989 and the
Public Prosecutions Act 1994 to make
561022B.I-4/12/2007 1 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 1--Preliminary
s. 2
further provision in relation to judicial
pensions; and
(b) further amend the Constitution Act 1975
and the County Court Act 1958
5 consequential on the enactment of the
Relationships Act 2007.
2 Commencement
(1) Subject to subsection (2), this Act (except Part 6)
comes into operation on the day after the day on
10 which it receives the Royal Assent.
(2) Part 6 comes into operation on the day on which
section 73 of the Relationships Act 2007 comes
into operation.
__________________
561022B.I-4/12/2007 2 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 3
PART 2--CONSTITUTION ACT 1975
3 New section 5A inserted
After section 5 of the Constitution Act 1975 See:
Act No.
insert-- 8750.
Reprint No. 18
5 "5A Definitions relating to pensions as at
31 October
(1) For the purposes of section 83-- 2006
and
approved deposit fund has the meaning amending
Act No.
given by section 10(1) of the 24/2007.
Superannuation Industry (Supervision) LawToday:
www.
10 Act 1993 of the Commonwealth; legislation.
vic.gov.au
domestic partner of a person means a person
to whom the person is not married but
with whom, in the opinion of the
Minister, the person is, or was at the
15 time of the person's death, living as a
couple on a genuine domestic basis
(irrespective of gender);
eligible rollover fund means a fund within
the meaning of section 242 of the
20 Superannuation Industry (Supervision)
Act 1993 of the Commonwealth;
eligible superannuation plan means--
(a) a regulated superannuation fund;
or
25 (b) an approved deposit fund; or
(c) an exempt public sector
superannuation scheme; or
(d) an RSA;
561022B.I-4/12/2007 3 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 3
exempt public sector superannuation
scheme means a public sector
superannuation scheme within the
meaning of section 10(1) of the
5 Superannuation Industry (Supervision)
Act 1993 of the Commonwealth;
flag lifting agreement has the meaning given
by section 90MN of the Family Law
Act 1975 of the Commonwealth;
10 flagging order means an order mentioned in
section 90MU(1) of the Family Law
Act 1975 of the Commonwealth;
interest has the meaning given by section
90MD of the Family Law Act 1975 of
15 the Commonwealth;
member means a Judge of the Supreme
Court;
member spouse, in relation to a
superannuation interest, means the
20 spouse who has the superannuation
interest;
non-member spouse, in relation to a
superannuation interest, means the
spouse who is not the member spouse
25 in relation to that interest;
partner of a person means--
(a) in relation to a person who
became entitled to benefits under
this Act before the
30 commencement of section 3 of the
Constitution Amendment
(Judicial Pensions) Act 2007--
(i) the person's husband, wife,
widower or widow; or
561022B.I-4/12/2007 4 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 3
(ii) a person of the opposite sex
who, though not married to
the person, in the opinion of
the Minister lives with the
5 person, or lived with the
person at the date of the
person's death, on a bona
fide domestic basis as the
person's husband or wife;
10 (b) in any other case, the person's
spouse or domestic partner;
payment flag has the meaning given by
section 90MD of the Family Law Act
1975 of the Commonwealth;
15 regulated superannuation fund means a
superannuation fund which complies
with section 19 of the Superannuation
Industry (Supervision) Act 1993 of the
Commonwealth;
20 relevant condition of release means a
condition of release mentioned in item
101, 102, 103 or 106 of Schedule 1 to
the Superannuation Industry
(Supervision) Regulations 1994 of the
25 Commonwealth;
reversionary interest has the meaning given
by section 90MF of the Family Law
Act 1975 of the Commonwealth;
RSA means a retirement savings account
30 within the meaning of the Retirement
Savings Accounts Act 1997 of the
Commonwealth;
specified period means the period which is
specified to be the specified period in
35 the specified standards;
561022B.I-4/12/2007 5 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 3
splitting order means an order mentioned in
section 90MT of the Family Law Act
1975 of the Commonwealth;
spouse of a person means a person to whom
5 the person is, or was at the time of the
person's death, married;
superannuation agreement has the meaning
given by section 90MH of the Family
Law Act 1975 of the Commonwealth;
10 superannuation fund has the same meaning
as in the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth;
superannuation interest means an interest
15 that a person has as a member of an
eligible superannuation plan, but does
not include a reversionary interest;
unsplittable interest has the meaning given
by section 90MD of the Family Law
20 Act 1975 of the Commonwealth;
value at a particular time of the non-
member spouse's entitlement in
respect of the superannuation interest
means the value as determined in
25 accordance with regulation 14G(8) of
the Family Law (Superannuation)
Regulations 2001 of the
Commonwealth;
value of the member spouse's interest in the
30 Fund means the value as determined in
accordance with Part 5 of the Family
Law (Superannuation) Regulations
2001 of the Commonwealth.
561022B.I-4/12/2007 6 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 4
(2) For the purposes of the definition of
domestic partner in subsection (1), in
determining whether persons are or were
domestic partners of each other, all the
5 circumstances of their relationship are to be
taken into account, including any one or
more of the matters referred to in section
275(2) of the Property Law Act 1958 as
may be relevant in a particular case.
10 (3) For the purposes of section 83, a reference to
the transfer of an amount is to be construed
as including a reference to the rollover of an
amount.".
4 Amendment of references to spouses
15 (1) In section 7A of the Constitution Act 1975--
(a) in subsections (3), (4) and (5) for "spouse"
(wherever occurring) substitute "partner";
(b) in subsection (3) for "spouse's death or
re-marriage" substitute "partner's death or
20 marriage or until the partner becomes the
domestic partner of another person";
(c) in subsection (5) after "married" insert
"or became the domestic partner of".
(2) In sections 7B, 7C, 7D, 7E, 7F, 7G, 7H, 7I and 7J
25 of the Constitution Act 1975 for "spouse"
(wherever occurring) substitute "partner".
(3) In sections 7D(1), 7E(2), 7H(2)(a) and 7J(3)(a)(ii)
of the Constitution Act 1975 for "spouse's"
(wherever occurring) substitute "partner's".
561022B.I-4/12/2007 7 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 5
5 Amendment of section 7A to apply subsections (8)
to (22) of section 83
After section 7A(5) of the Constitution Act 1975
insert--
5 "(5A) Subsections (8) to (22) of section 83 apply
with such modifications as are necessary to
and in respect of a pension under this section
in the same circumstances and to the same
extent as those subsections apply to and in
10 respect of a pension under section 83.".
6 Amendment of references to spouses
(1) Insert the following heading to section 83 of the
Constitution Act 1975--
"As to pensions of Judges of the Supreme
15 Court and their partners and children".
(2) In section 83 of the Constitution Act 1975--
(a) in subsections (2), (2B) and (7) for "spouse"
(wherever occurring) substitute "partner";
(b) in subsection (2) for "remarriage" substitute
20 "marriage or until the partner becomes the
domestic partner of another person".
(3) For section 83(3) of the Constitution Act 1975
substitute--
"(3) Notwithstanding subsection (2), no pension
25 is payable to the partner of any former Judge
in any case where that partner married or
became the domestic partner of the former
Judge after that Judge's resignation or
retirement, unless in the case of marriage, the
30 spouse was the domestic partner of the Judge
immediately prior to that Judge's resignation
or retirement.".
561022B.I-4/12/2007 8 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 7
(4) In sections 83AA, 83AB, 83AC, 83AD, 83AE,
83AF, 83AG, 83AH and 83AI of the Constitution
Act 1975 for "spouse" (wherever occurring)
substitute "partner".
5 (5) In sections 83AD(2), 83AG(2) and 83AI(3) of the
Constitution Act 1975 for "spouse's" (wherever
occurring) substitute "partner's".
(6) In the headings to sections 83AG, 83AH and 83AI
of the Constitution Act 1975 for "spouses"
10 (wherever occurring) substitute "partners".
7 Amendment of section 83 to include child of partner
In section 83(2C) of the Constitution Act 1975
after "the judge" insert "or his or her partner".
8 New subsections (8) to (22) inserted in section 83
15 After section 83(7) of the Constitution Act 1975
insert--
"(8) For the purpose of regulation 65 of the
Family Law (Superannuation) Regulations
2001 of the Commonwealth, the Minister on
20 the advice of an actuary appointed by the
Minister may from time to time determine
the accrued benefit multiple.
(9) Subject to subsections (13) and (14), the
Minister must comply with subsections (11)
25 and (12) if--
(a) a superannuation agreement which
provides for a payment split; or
(b) a flag lifting agreement which provides
for a payment split; or
30 (c) a splitting order--
is served on the Minister under Part VIIIB of
the Family Law Act 1975 of the
Commonwealth.
561022B.I-4/12/2007 9 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
(10) Subsections (11) and (12) also apply to--
(a) a superannuation agreement which
provides for a payment split; or
(b) a flag lifting agreement which provides
5 for a payment split; or
(c) a splitting order--
which was served on the Minister under
Part VIIIB of the Commonwealth Family
Law Act 1975 before the commencement of
10 section 3 of the Constitution Amendment
(Judicial Pensions) Act 2007 if the non-
member spouse's entitlements in respect of
the superannuation interest have not been
satisfied as at that commencement.
15 (11) If the non-member spouse has not satisfied a
relevant condition of release and the member
spouse is not receiving a pension under this
Act, the Minister must if the value of the
non-member spouse's entitlement in respect
20 of the superannuation interest at the
particular time does not exceed the value of
the member spouse's interest in the Fund--
(a) transfer a lump sum amount equal to
the value of the non-member spouse's
25 entitlement in respect of the
superannuation interest at the time of
the payment to an eligible
superannuation plan nominated in
writing by the non-member spouse
30 within the specified period; or
(b) if the non-member spouse fails to
nominate in writing an eligible
superannuation plan within the
specified period, transfer a lump sum
35 amount equal to the value of the non-
member spouse's entitlement in respect
561022B.I-4/12/2007 10 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
of the superannuation interest at the
time of the payment to an eligible
rollover fund selected by the Minister.
(12) If the non-member spouse has satisfied a
5 relevant condition of release or the member
spouse is receiving a pension under this Act,
the Minister must if the value of the non-
member spouse's entitlement in respect of
the superannuation interest at the particular
10 time does not exceed the value of the
member spouse's interest in the Fund--
(a) if so requested in writing by the non-
member spouse within the specified
period, pay the non-member spouse a
15 lump sum amount equal to the value of
the non-member spouse's entitlement in
respect of the superannuation interest at
the time of the payment; or
(b) if so requested in writing by the non-
20 member spouse within the specified
period, transfer a lump sum amount
equal to the value of the non-member
spouse's entitlement in respect of the
superannuation interest at the time of
25 the payment to an eligible
superannuation plan nominated in
writing by the non-member spouse; or
(c) if no request is received from the non-
member spouse within the specified
30 period, transfer a lump sum amount
equal to the value of the non-member
spouse's entitlement in respect of the
superannuation interest at the time of
the payment to an eligible rollover fund
35 selected by the Minister.
561022B.I-4/12/2007 11 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
(13) Subsections (11) and (12) do not apply if--
(a) the member spouse's superannuation
interest is an unsplittable interest; or
(b) a payment flag is operating in respect
5 of the member spouse's superannuation
interest; or
(c) the non-member spouse has served a
waiver notice on the Minister under
section 90MZA of the Family Law Act
10 1975 of the Commonwealth in respect
of the member spouse's superannuation
interest; or
(d) the member spouse's superannuation
interest is a payment that is not a
15 splittable payment under Part 2 of the
Family Law (Superannuation)
Regulations 2001 of the
Commonwealth.
(14) If the member spouse's superannuation
20 interest is a pension under this Act due to a
disability which is a splittable payment, the
Minister may determine that subsections (11)
and (12) do not apply.
(15) If the non-member spouse serves a waiver
25 notice on the Minister under section 90MZA
of the Family Law Act 1975 of the
Commonwealth in respect of the member
spouse's superannuation interest, the
Minister may make a payment to the non-
30 member spouse not exceeding the value at a
particular time of the non-member spouse's
entitlement in respect of the superannuation
interest less any payments previously made
by the Minister to the non-member spouse in
35 accordance with this section.
561022B.I-4/12/2007 12 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
(16) Despite anything to the contrary in this Act,
if under subsection (11), (12) or (15) an
amount is paid by the Minister to a non-
member spouse or transferred by the
5 Minister on behalf of a non-member spouse,
the benefit of a member spouse must be
reduced by the Minister in accordance with a
methodology approved by the Minister, on
the advice of an actuary appointed by the
10 Minister.
(17) On the application of an eligible person
within the meaning of section 90MZB(8) of
the Family Law Act 1975 of the
Commonwealth, the Minister may provide
15 information additional to the information
required to be provided under section
90MZB of that Act if the Minister considers
that the additional information is necessary
to understand the member spouse's benefit
20 entitlements.
(18) The entitlement of a person to convert or
commute a benefit or pension under this Act
is not affected by the making of a payment or
transfer under subsection (11), (12) or (15).
25 (19) The Minister may charge reasonable fees in
respect of--
(a) a payment split;
(b) a payment flag;
(c) flag lifting under a flag lifting
30 agreement that does not provide for a
payment split;
(d) an order under section 90MM of the
Family Law Act 1975 of the
Commonwealth terminating the
35 operation of a payment flag;
561022B.I-4/12/2007 13 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
(e) an application under section 90MZB of
the Family Law Act 1975 of the
Commonwealth for information about a
superannuation interest;
5 (f) any other thing done by the Minister in
relation to a superannuation interest
covered by a superannuation
agreement, flag lifting agreement or
splitting order;
10 (g) the provision of information under
subsection (17).
(20) Fees charged under subsection (19) must not
exceed the maximum levels of fees fixed by
the Minister for the purposes of this section
15 by notice published in the Government
Gazette.
(21) If the Minister charges a fee under
subsection (19), the fee is payable--
(a) unless paragraph (b) applies, in the case
20 of subsection (19)(a), (19)(b), (19)(c),
(19)(d) or (19)(f), by the member
spouse and the non-member spouse in
equal parts;
(b) if the fee is in respect of a payment split
25 under which the non-member spouse is
entitled to be paid the whole of the
amount of each splittable payment that
becomes payable, by the non-member
spouse;
30 (c) in the case of subsection (19)(e) or
(19)(g), by the person who made the
application.
561022B.I-4/12/2007 14 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 2--Constitution Act 1975
s. 8
(22) For the purposes of this section, the Minister
may, with such modifications as are
necessary, adopt any specified standards
made by Order in Council under section 92A
5 of the State Superannuation Act 1988 for
the purposes of Part 7A of that Act.".
__________________
561022B.I-4/12/2007 15 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 9
PART 3--COUNTY COURT ACT 1958
9 New section 3AA inserted
See: After section 3 of the County Court Act 1958
Act No.
6230. insert--
Reprint No. 12
5 as at "3AA Definitions relating to pensions
28 April 2006
and (1) For the purposes of section 14--
amending
Act Nos approved deposit fund has the meaning
22/2006,
50/2006, given by section 10(1) of the
24/2007, Superannuation Industry (Supervision)
26/2007 and
10 28/2007. Act 1993 of the Commonwealth;
LawToday:
www. domestic partner of a person means a person
legislation.
vic.gov.au
to whom the person is not married but
with whom, in the opinion of the
Minister, the person is, or was at the
15 time of the person's death, living as a
couple on a genuine domestic basis
(irrespective of gender);
eligible rollover fund means a fund within
the meaning of section 242 of the
20 Superannuation Industry (Supervision)
Act 1993 of the Commonwealth;
eligible superannuation plan means--
(a) a regulated superannuation fund;
or
25 (b) an approved deposit fund; or
(c) an exempt public sector
superannuation scheme; or
(d) an RSA;
561022B.I-4/12/2007 16 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 9
exempt public sector superannuation
scheme means a public sector
superannuation scheme within the
meaning of section 10(1) of the
5 Superannuation Industry (Supervision)
Act 1993 of the Commonwealth;
flag lifting agreement has the meaning given
by section 90MN of the Family Law
Act 1975 of the Commonwealth;
10 flagging order means an order mentioned in
section 90MU(1) of the Family Law
Act 1975 of the Commonwealth;
interest has the meaning given by section
90MD of the Family Law Act 1975 of
15 the Commonwealth;
member means a judge;
member spouse, in relation to a
superannuation interest, means the
spouse who has the superannuation
20 interest;
non-member spouse, in relation to a
superannuation interest, means the
spouse who is not the member spouse
in relation to that interest;
25 partner of a person means--
(a) in relation to a person who
became entitled to benefits under
this Act before the
commencement of section 9 of the
30 Constitution Amendment
(Judicial Pensions) Act 2007--
(i) the person's husband, wife,
widower or widow; or
561022B.I-4/12/2007 17 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 9
(ii) a person of the opposite sex
who, though not married to
the person, in the opinion of
the Minister lives with the
5 person, or lived with the
person at the date of the
person's death, on a bona
fide domestic basis as the
person's husband or wife;
10 (b) in any other case, the person's
spouse or domestic partner;
payment flag has the meaning given by
section 90MD of the Family Law Act
1975 of the Commonwealth;
15 regulated superannuation fund means a
superannuation fund which complies
with section 19 of the Superannuation
Industry (Supervision) Act 1993 of the
Commonwealth;
20 relevant condition of release means a
condition of release mentioned in item
101, 102, 103 or 106 of Schedule 1 to
the Superannuation Industry
(Supervision) Regulations 1994 of the
25 Commonwealth;
reversionary interest has the meaning given
by section 90MF of the Family Law
Act 1975 of the Commonwealth;
RSA means a retirement savings account
30 within the meaning of the Retirement
Savings Accounts Act 1997 of the
Commonwealth;
specified period means the period which is
specified to be the specified period in
35 the specified standards;
561022B.I-4/12/2007 18 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 9
splitting order means an order mentioned in
section 90MT of the Family Law Act
1975 of the Commonwealth;
spouse of a person means a person to whom
5 the person is, or was at the time of the
person's death, married;
superannuation agreement has the meaning
given by section 90MH of the Family
Law Act 1975 of the Commonwealth;
10 superannuation fund has the same meaning
as in the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth;
superannuation interest means an interest
15 that a person has as a member of an
eligible superannuation plan, but does
not include a reversionary interest;
unsplittable interest has the meaning given
by section 90MD of the Family Law
20 Act 1975 of the Commonwealth;
value at a particular time of the non-
member spouse's entitlement in
respect of the superannuation interest
means the value as determined in
25 accordance with regulation 14G(8) of
the Family Law (Superannuation)
Regulations 2001 of the
Commonwealth;
value of the member spouse's interest in the
30 Fund means the value as determined in
accordance with Part 5 of the Family
Law (Superannuation) Regulations
2001 of the Commonwealth.
561022B.I-4/12/2007 19 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 10
(2) For the purposes of the definition of
domestic partner in subsection (1), in
determining whether persons are or were
domestic partners of each other, all the
5 circumstances of their relationship are to be
taken into account, including any one or
more of the matters referred to in section
275(2) of the Property Law Act 1958 as
may be relevant in a particular case.
10 (3) For the purposes of section 14, a reference to
the transfer of an amount is to be construed
as including a reference to the rollover of an
amount.".
10 References to spouses
15 (1) Insert the following heading to section 14 of the
County Court Act 1958--
"Provision for pensions to County Court judges
and their partners".
(2) In section 14 of the County Court Act 1958--
20 (a) in subsections (3) and (3AB) for "spouse"
(wherever occurring) substitute "partner";
(b) in subsection (3) for "remarriage" substitute
"marriage or until the partner becomes the
domestic partner of another person";
25 (c) for the proviso to subsection (3)
substitute--
"Provided that no pension is payable to the
partner of any former judge in any case
where that partner married or became the
30 domestic partner of the former judge after
that judge's resignation or retirement, unless
in the case of marriage, the spouse was the
domestic partner of the judge immediately
prior to that judge's resignation or
35 retirement.".
561022B.I-4/12/2007 20 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 11
(3) In sections 14AA, 14AB, 14AC, 14AD, 14AE,
14AF, 14AG, 14AH and 14AI of the County
Court Act 1958 for "spouse" (wherever
occurring) substitute "partner".
5 (4) In sections 14AC(1), 14AD(2), 14AG(2)(a) and
14AI(3)(a) of the County Court Act 1958 for
"spouse's" (wherever occurring) substitute
"partner's".
(5) In the heading to sections 14AG, 14AH and 14AI
10 of the County Court Act 1958 for "spouses"
(wherever occurring) substitute "partners".
11 Amendment of section 14 to include child of partner
In section 14(3AC) of the County Court Act
1958 after "the judge" insert "or his or her
15 partner".
12 New subsections (7) to (21) inserted in section 14
After section 14(6) of the County Court Act
1958 insert--
"(7) For the purpose of regulation 65 of the
20 Family Law (Superannuation) Regulations
2001 of the Commonwealth, the Minister on
the advice of an actuary appointed by the
Minister may from time to time determine
the accrued benefit multiple.
25 (8) Subject to subsections (12) and (13), the
Minister must comply with subsections (10)
and (11) if--
(a) a superannuation agreement which
provides for a payment split; or
30 (b) a flag lifting agreement which provides
for a payment split; or
561022B.I-4/12/2007 21 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 12
(c) a splitting order--
is served on the Minister under Part VIIIB of
the Family Law Act 1975 of the
Commonwealth.
5 (9) Subsections (10) and (11) also apply to--
(a) a superannuation agreement which
provides for a payment split; or
(b) a flag lifting agreement which provides
for a payment split; or
10 (c) a splitting order--
which was served on the Minister under
Part VIIIB of the Family Law Act 1975 of
the Commonwealth before the
commencement of section 9 of the
15 Constitution Amendment (Judicial
Pensions) Act 2007 if the non-member
spouse's entitlements in respect of the
superannuation interest have not been
satisfied as at that commencement.
20 (10) If the non-member spouse has not satisfied a
relevant condition of release and the member
spouse is not receiving a pension under this
Act, the Minister must if the value of the
non-member spouse's entitlement in respect
25 of the superannuation interest at the
particular time does not exceed the value of
the member spouse's interest in the Fund--
(a) transfer a lump sum amount equal to
the value of the non-member spouse's
30 entitlement in respect of the
superannuation interest at the time of
the payment to an eligible
superannuation plan nominated in
writing by the non-member spouse
35 within the specified period; or
561022B.I-4/12/2007 22 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 12
(b) if the non-member spouse fails to
nominate in writing an eligible
superannuation plan within the
specified period, transfer a lump sum
5 amount equal to the value of the non-
member spouse's entitlement in respect
of the superannuation interest at the
time of the payment to an eligible
rollover fund selected by the Minister.
10 (11) If the non-member spouse has satisfied a
relevant condition of release or the member
spouse is receiving a pension under this Act,
the Minister must if the value of the non-
member spouse's entitlement in respect of
15 the superannuation interest at the particular
time does not exceed the value of the
member spouse's interest in the Fund--
(a) if so requested in writing by the non-
member spouse within the specified
20 period, pay the non-member spouse a
lump sum amount equal to the value of
the non-member spouse's entitlement in
respect of the superannuation interest at
the time of the payment; or
25 (b) if so requested in writing by the non-
member spouse within the specified
period, transfer a lump sum amount
equal to the value of the non-member
spouse's entitlement in respect of the
30 superannuation interest at the time of
the payment to an eligible
superannuation plan nominated in
writing by the non-member spouse; or
561022B.I-4/12/2007 23 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 12
(c) if no request is received from the non-
member spouse within the specified
period, transfer a lump sum amount
equal to the value of the non-member
5 spouse's entitlement in respect of the
superannuation interest at the time of
the payment to an eligible rollover fund
selected by the Minister.
(12) Subsections (10) and (11) do not apply if--
10 (a) the member spouse's superannuation
interest is an unsplittable interest; or
(b) a payment flag is operating in respect
of the member spouse's superannuation
interest; or
15 (c) the non-member spouse has served a
waiver notice on the Minister under
section 90MZA of the Family Law Act
1975 of the Commonwealth in respect
of the member spouse's superannuation
20 interest; or
(d) the member spouse's superannuation
interest is a payment that is not a
splittable payment under Part 2 of the
Family Law (Superannuation)
25 Regulations 2001 of the
Commonwealth.
(13) If the member spouse's superannuation
interest is a pension under this Act due to a
disability which is a splittable payment, the
30 Minister may determine that subsections (10)
and (11) do not apply.
561022B.I-4/12/2007 24 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 12
(14) If the non-member spouse serves a waiver
notice on the Minister under section 90MZA
of the Family Law Act 1975 of the
Commonwealth in respect of the member
5 spouse's superannuation interest, the
Minister may make a payment to the non-
member spouse not exceeding the value at a
particular time of the non-member spouse's
entitlement in respect of the superannuation
10 interest less any payments previously made
by the Minister to the non-member spouse in
accordance with this section.
(15) Despite anything to the contrary in this Act,
if under subsection (10), (11) or (14) an
15 amount is paid by the Minister to a non-
member spouse or transferred by the
Minister on behalf of a non-member spouse,
the benefit of a member spouse must be
reduced by the Minister in accordance with a
20 methodology approved by the Minister, on
the advice of an actuary appointed by the
Minister.
(16) On the application of an eligible person
within the meaning of section 90MZB(8) of
25 the Family Law Act 1975 of the
Commonwealth, the Minister may provide
information additional to the information
required to be provided under section
90MZB of that Act if the Minister considers
30 that the additional information is necessary
to understand the member spouse's benefit
entitlements.
(17) The entitlement of a person to convert or
commute a benefit or pension under this Act
35 is not affected by the making of a payment or
transfer under subsection (10), (11) or (14).
561022B.I-4/12/2007 25 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 12
(18) The Minister may charge reasonable fees in
respect of--
(a) a payment split;
(b) a payment flag;
5 (c) flag lifting under a flag lifting
agreement that does not provide for a
payment split;
(d) an order under section 90MM of the
Family Law Act 1975 of the
10 Commonwealth terminating the
operation of a payment flag;
(e) an application under section 90MZB of
the Family Law Act 1975 of the
Commonwealth for information about a
15 superannuation interest;
(f) any other thing done by the Minister in
relation to a superannuation interest
covered by a superannuation
agreement, flag lifting agreement or
20 splitting order;
(g) the provision of information under
subsection (16).
(19) Fees charged under subsection (18) must not
exceed the maximum levels of fees fixed by
25 the Minister for the purposes of this section
by notice published in the Government
Gazette.
(20) If the Minister charges a fee under
subsection (18), the fee is payable--
30 (a) unless paragraph (b) applies, in the case
of subsection (18)(a), (18)(b), (18)(c),
(18)(d) or (18)(f), by the member
spouse and the non-member spouse in
equal parts;
561022B.I-4/12/2007 26 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 13
(b) if the fee is in respect of a payment split
under which the non-member spouse is
entitled to be paid the whole of the
amount of each splittable payment that
5 becomes payable, by the non-member
spouse;
(c) in the case of subsection (18)(e) or
(18)(g), by the person who made the
application.
10 (21) For the purposes of this section, the Minister
may, with such modifications as are
necessary, adopt any specified standards
made by Order in Council under section 92A
of the State Superannuation Act 1988 for
15 the purposes of Part 7A of that Act.".
13 Amendment of references to spouses
(1) Insert the following heading to section 17B of the
County Court Act 1958--
"Pension entitlements of masters, their
20 partners and children".
(2) In section 17B of the County Court Act 1958--
(a) in subsections (2) and (3) for "spouse"
(wherever occurring) substitute "partner";
(b) in subsection (2) for "remarriage" substitute
25 "marriage or until the partner becomes the
domestic partner of another person";
(c) in subsection (3) after "place" insert "or the
domestic partnership was entered into".
(3) In sections 17C, 17D, 17E, 17F, 17G, 17H, 17I,
30 17J and 17K of the County Court Act 1958 for
"spouse" (wherever occurring) substitute
"partner".
561022B.I-4/12/2007 27 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 3--County Court Act 1958
s. 14
(4) In sections 17E(1), 17F(2), 17I(2) and 17K(3) of
the County Court Act 1958 for "spouse's"
(wherever occurring) substitute "partner's".
(5) In the heading to sections 17I, 17J and 17K of the
5 County Court Act 1958 for "spouses" (wherever
occurring) substitute "partners".
14 Amendment of section 17B to include child of
partner
In section 17B(5) of the County Court Act 1958
10 after "the master or former master" insert "or his
or her partner".
15 Amendment of section 17B to apply subsections (7)
to (21) of section 14
After section 17B(10) of the County Court Act
15 1958 insert--
"(10A) Subsections (7) to (21) of section 14 apply
with such modifications as are necessary to
and in respect of a pension under this section
in the same circumstances and to the same
20 extent as those subsections apply to and in
respect of a pension under section 14.".
__________________
561022B.I-4/12/2007 28 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 4--Supreme Court Act 1986
s. 16
PART 4--SUPREME COURT ACT 1986
16 Amendment of references to spouses
(1) Insert the following heading to section 104A of See:
Act No.
the Supreme Court Act 1986-- 110/1986.
Reprint No. 6
5 "Pension entitlements of Masters, their as at
28 April 2006
partners and children". and
amending
(2) In section 104A of the Supreme Court Act Act Nos
1986-- 48/2006 and
24/2007.
(a) in subsections (2) and (3) for "spouse" LawToday:
www.
10 substitute "partner"; legislation.
vic.gov.au
(b) in subsection (2) for "remarriage" substitute
"marriage or until the partner becomes the
domestic partner of another person";
(c) in subsection (3) after "place" insert "or the
15 domestic partnership was entered into".
(3) In sections 104B, 104C, 104D, 104E, 104F, 104G,
104H, 104I and 104J of the Supreme Court Act
1986 for "spouse" (wherever occurring)
substitute "partner".
20 (4) In sections 104D(1), 104E(2), 104H(2) and
104J(3) of the Supreme Court Act 1986 for
"spouse's" (wherever occurring) substitute
"partner's".
(5) In the heading to sections 104H, 104I and 104J of
25 the Supreme Court Act 1986 for "spouses"
(wherever occurring) substitute "partners".
17 Amendment of section 104A to include child of
partner
In section 104A(5) of the Supreme Court Act
30 1986 after "the Master or former Master" insert
"or his or her partner".
561022B.I-4/12/2007 29 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 4--Supreme Court Act 1986
s. 18
18 Amendment of section 104A to apply subsections (8)
to (22) of section 83 of the Constitution Act 1975
After section 104A(10) of the Supreme Court
Act 1986 insert--
5 "(10A) Subsections (8) to (22) of section 83 of the
Constitution Act 1975 apply with such
modifications as are necessary to and in
respect of a pension under this section in the
same circumstances and to the same extent
10 as those subsections apply to and in respect
of a pension under section 83 of the
Constitution Act 1975.".
__________________
561022B.I-4/12/2007 30 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 5--Amendments to Other Acts
s. 19
PART 5--AMENDMENTS TO OTHER ACTS
19 Amendment of sections 4 and 6 of the Attorney- See:
Act No.
General and Solicitor-General Act 1972 8305.
Reprint No. 2
(1) In section 4(3)(b) of the Attorney-General and as at
17 June 2003
5 Solicitor-General Act 1972 after "his" (where and
twice occurring) insert "or her". amending
Act No.
(2) In section 6(1) of the Attorney-General and 79/2006.
LawToday:
Solicitor-General Act 1972 for "spouse" (where www.
twice occurring) substitute "partner". legislation.
vic.gov.au
10 20 Amendment of section 10A of the Magistrates' See:
Act No.
Court Act 1989 81/1989.
Reprint No. 13
In section 10A(1) of the Magistrates' Court Act as at
15 August
1989 for "spouse" (where twice occurring) 2007
substitute "partner". and
amending
Act Nos
77/2004 (as
amended by
No. 36/2007),
50/2007,
52/2007 and
53/2007.
LawToday:
www.
legislation.
vic.gov.au
15 21 Amendment of sections 18 and 35 of the Public See:
Act No.
Prosecutions Act 1994 43/1994.
Reprint No. 3
(1) Insert the following heading to section 18 of the as at
21 March
Public Prosecutions Act 1994-- 2007.
LawToday:
"Pension of Chief Crown Prosecutor and of his www.
20 or her partner and children". legislation.
vic.gov.au
(2) In section 18(1) of the Public Prosecutions Act
1994 for "spouse" (where twice occurring)
substitute "partner".
561022B.I-4/12/2007 31 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 5--Amendments to Other Acts
s. 21
(3) Insert the following heading to section 35 of the
Public Prosecutions Act 1994--
"Pensions of Senior Crown Prosecutors and of
their partners and children".
5 (4) In section 35(1) of the Public Prosecutions Act
1994 for "spouse" (where twice occurring)
substitute "partner".
__________________
561022B.I-4/12/2007 32 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 6--Amendments Consequential on the Relationships Act 2007
s. 22
PART 6--AMENDMENTS CONSEQUENTIAL ON THE
RELATIONSHIPS ACT 2007
22 Amendment of Constitution Act 1975
(1) In section 5A(1) of the Constitution Act 1975,
5 for the definition of domestic partner
substitute--
"domestic partner of a person means--
(a) a person who is, or was at the time of
the person's death, in a registered
10 relationship with the person; or
(b) a person to whom the person is not
married but with whom, in the opinion
of the Minister, the person is, or was at
the time of the person's death, living as
15 a couple on a genuine domestic basis
(irrespective of gender);".
(2) For section 5A(2) of the Constitution Act 1975
substitute--
"(2) For the purposes of the definition of
20 domestic partner in subsection (1)--
(a) registered relationship has the same
meaning as in the Relationships Act
2007; and
(b) in determining whether persons who
25 are not or were not in a registered
relationship are or were domestic
partners of each other, all the
circumstances of their relationship are
to be taken into account, including any
30 one or more of the matters referred to in
section 35(2) of the Relationships Act
2007 as may be relevant in a particular
case.".
561022B.I-4/12/2007 33 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 6--Amendments Consequential on the Relationships Act 2007
s. 23
23 Amendment of County Court Act 1958
(1) In section 3AA(1) of the County Court Act 1958,
for the definition of domestic partner
substitute--
5 "domestic partner of a person means--
(a) a person who is, or was at the time of
the person's death, in a registered
relationship with the person; or
(b) a person to whom the person is not
10 married but with whom, in the opinion
of the Minister, the person is, or was at
the time of the person's death, living as
a couple on a genuine domestic basis
(irrespective of gender);".
15 (2) For section 3AA(2) of the County Court Act
1958 substitute--
"(2) For the purposes of the definition of
domestic partner in subsection (1)--
(a) registered relationship has the same
20 meaning as in the Relationships Act
2007; and
(b) in determining whether persons who
are not or were not in a registered
relationship are or were domestic
25 partners of each other, all the
circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
section 35(2) of the Relationships Act
30 2007 as may be relevant in a particular
case.".
__________________
561022B.I-4/12/2007 34 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Part 7--Repeal of Amending Act
s. 24
PART 7--REPEAL OF AMENDING ACT
24 Repeal of amending Act
This Act is repealed on 1 December 2009.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
561022B.I-4/12/2007 35 BILL LA INTRODUCTION 4/12/2007
Constitution Amendment (Judicial Pensions) Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561022B.I-4/12/2007 36 BILL LA INTRODUCTION 4/12/2007
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