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CONSTITUTION AMENDMENT (JUDICIAL PENSIONS) BILL 2007

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