Alert Digest No. 6 of 2003

Tuesday, 16 September 2003

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Aerodrome Landing Fees Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. J. Brumby MLA
Portfolio responsibility: Minister for State and Regional Development

Purpose

The Bill gives a legislative base for aerodrome operators to charge landing, departure and parking fees. The Bill also gives legislative force to the pursuit and recovery of fees incurred by airfield users and provides avenues for recovering these funds without resorting to common-law remedies.

Content and Committee comment

[Clauses]

[2]. Provides for the Bill to come into operation on a day to be proclaimed, but no later than 1 January 2004.

[5]. Explains that the Bill does not affect an aerodrome operators powers, rights and obligations to charge fees.

[6]. Outlines the services and activities an aerodrome operator may fix fees for. Additionally, it outlines the obligation for aerodrome operators to notify aircraft owners of changes in their fees.

[7]. Specifies the liability for fees owing to an aerodrome and provides for transfer of liability.

[8]. Expresses the aerodrome operator's legal right to recover debts through court proceedings from the liable party.

[9]. Provides powers to the Governor-in-Council to make regulations.

The Committee makes no further comment.

Cemeteries and Crematoria Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The purpose of the Bill is to provide for the management and operation of cemeteries and crematoria and to repeal the Cemeteries Act 1958.

Content and Committee comment

[Clauses]

[2]. The Act comes into operation on 1 July 2005.

[4]. Provides that a public cemetery is established by an order of the Governor in Council published in the Government Gazette.

[5]. Provides that a cemetery trust is established by order of the Governor in Council published in the Government Gazette.

[8]. Provides that the Governor in Council may make orders about the management of public cemeteries.

[11]. Provides that membership of a cemetery trust is not an office of profit under the Crown for the purposes of the Constitution Act 1975.

[12 and 13]. Provides for the functions and obligations of cemetery trusts and outlines the general powers of cemetery trusts.

[15]. Provides that a cemetery trust may delegate its powers (saving the specified powers and the power to delegate) to a member of the trust or an employee of the trust. Delegations must be in writing and the trust must record all delegations made by it.

[16]. Provides that a member of a cemetery trust is not personally liable for the acts or omissions he or she committed in good faith in the exercise of powers or functions under the Act or regulations.

Liability attaches instead to a cemetery trust for the acts or omissions of its members committed in good faith in the exercise of powers or functions under the Act or regulations.

[25]. The regulations may prescribe model rules with respect to the operation and management of a public cemetery by a cemetery trust. The model rules apply except where the cemetery trust had made trust rules approved and published under clause 27.

[26]. A cemetery trust may make rules for the general care and operation of a public cemetery but such rules may not be inconsistent with any Act or statutory rules but may be inconsistent with the model rules (made under the regulations).

[30]. With the approval of the Minister, a cemetery trust may purchase land. The Minister may direct a cemetery trust to purchase or acquire land with the trust's own funds.

Compulsory acquisition of land

[31]. The Minister may purchase or compulsorily acquire land.

[32]. Land purchased or compulsorily acquired is subject to the compensation provisions of the Land Acquisition and Compensation Act 1986 and is deemed to be unalienated Crown land under that Act.

[39]. A cemetery trust may fix fees and charges or a scale of fees and charges for its services, and that those fees and charges must be approved by the Secretary.

[53]. If a municipal council is responsible for the management of a public cemetery, the Act applies in respect of that cemetery and that municipal council as if the municipal council were a cemetery trust.

[62 to 64]. Deals with the closure of a public cemetery.

[66]. A cemetery trust may make application to the Minister for approval to convert a public cemetery or part of a public cemetery to a historic cemetery park.

[73 and 74]. A cemetery trust may grant a right of interment on payment of the relevant cemetery trust fee and may make the grant of a right of interment subject to conditions. A right of interment is perpetual unless otherwise provided for.

[85]. A cemetery must notify the holder of a limited right of interment for interring cremated human remains that the right will expire 25 years after it was granted, and that the trust must do this at least 12 months before the expiry of the right.

[95]. Creates an offence of desecration of a memorial but allows a cemetery trust to carry out any function under the Act. [96]. Creates an offence of desecration of a place of interment, but allows a cemetery trust to carry out its functions.

[114]. It is an offence to inter bodily remains somewhere other than in a public cemetery, unless the Secretary has granted interment approval for that interment.

[115]. It is an offence to inter bodily remains in a public cemetery if an interment authorisation has not been granted by the responsible cemetery trust.

[128]. Cremated human remains may be interred or disposed of in a public cemetery for perpetuity or for a limited tenure. It also provides that human remains do not have to be interred or disposed of in a public cemetery.

[129]. A person must not cremate or assist in the cremation of bodily remains at any place other than a crematorium in a public cemetery.

[143 and 144]. A Magistrates' Court may make orders requiring a cemetery trust to cremate or inter the bodily remains of a deceased poor person free of charge and to place a plaque on the interment site of such a person unless the Court is satisfied that the wishes or religious beliefs of the person in relation to cremation was contrary to the beliefs of that person or that it is not practicable for the bodily remains to be cremated.

[155]. A person must not exhume or remove human remains from any place of interment unless authorised to do so under this Act.

[179]. Enables the holder of a right of interment to apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of a decision of a cemetery trust to grant or to refuse to grant an approval to establish or alter a memorial or a place of interment in the cemetery or a decision to make the approval subject to conditions.

Regulations

[180]. Provides that the Governor in Council may make regulations for various matters under this Bill, including the model rules.

[181]. Repeals the Cemeteries Act 1958.

[184]. Amends Schedule 4 to the Magistrates' Court Act 1989 this will permit all of the indictable offences in the Cemeteries and Crematoria Act 2003 to be triable summarily.

Crimes Act 1958

[185]. Inserts new offences of interference with a corpse of a human being into the Crimes Act 1958 (new section 34B) dealing with intentional sexual interference with a corpse or the commission of an indecent act with a corpse (necrophilia) or the unlawful removal of body parts from a corpse.

The Committee makes no further comment.

Grain Handling and Storage (Amendment) Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bob Cameron MLA
Portfolio responsibility: Minister for Agriculture

Purpose

The Bill amends the Grain Handling and Storage Act 1995 (the 'Act') to –

• ensure that disputes relating to access to grain handling and storage services at the ports of Geelong and Portland are primarily resolved by an arbitrated access regime;

• ensure that a price determination by the Essential Services Commission under section 15 of the Act may only occur with the approval of the Minister administering Part 3 of that Act and after completion of an inquiry by the Commission;

• expand the scope of the Act to all facilities related to the export shipping of grain at the ports of Geelong and Portland, rather than only those facilities previously owned by the Grain Elevators Board;

• clarify the role of the Essential Services Commission regarding disputes over access to grain handling and storage services at those ports;

• allow for a further inquiry into this industry to be completed by 30 June 2006 with further inquiries, if necessary, every subsequent 5 years from that date.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

[13]. Amends section 23 of the Act to require the Commission to conduct an inquiry into the scope of regulation by 30 June 2006 and every 5 years thereafter.

[14]. Inserts new section 23A into the Act providing that the Commission must publish guidelines as to how it will exercise its discretion not to make a determination and confirming the Commission's power to make guidelines in relation to other matters.

The Committee makes no further comment.

Heritage (Amendment) Bill

Introduced: 26 August 2003
Second Reading Speech: 27 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Mary Delahunty MLA
Portfolio responsibility: Minister for Planning

Purpose

The Bill amends the Heritage Act 1995 (the ‘Act) to improve the enforcement of the Act by increasing penalties and introducing the ability for a Court to make an order to remedy or restrain a contravention in addition to the penalty for the offence.

The Bill also clarifies entry provisions in cases where an occupier of a residence will not consent to entry or is not available to provide consent to entry for the purposes of investigating the cultural heritage significance of that residence.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on the day after Royal Assent.

Court order for entry to residence

[8]. Inserts new sections 150E, 150F and 150G into the Act to clarify powers of inspectors to facilitate entry into a residence for the purpose of investigating the residence's cultural heritage significance.

New section 150E provides that where an occupier of the residence refuses to give written consent to entry or where the occupier of the residence cannot be located and the inspector is satisfied that the residence is unoccupied that person may apply to a magistrate for an order permitting entry. An inspector must serve a copy of the application on an occupier at least 14 days before the hearing of the application.

New section 150F sets out what an inspector or authorised person, or a person assisting an inspector or authorised person, must do (announcement, identification and copy of order) before attempting to enter a residence under an order under section 150E. New section 150G sets out that on gaining entry an inspector or authorised person may take photographs, make measurements and sketches or use any other means to record information for the purposes of the Act.

[11]. Inserts new section 183A in the Act to enable a court to make any order it considers appropriate to remedy or restrain the contravention that constitutes the offence under the Act where a person has been found guilty or convicted of the offence.

The Committee makes no further comment.

Human Services (Complex Needs) Bill

Introduced: 26 August 2003
Second Reading Speech: 27 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The purpose of the Bill is to –

• facilitate the delivery of welfare services, health services, mental health services, disability services, drug and alcohol treatment services and housing and support services to certain persons with multiple and complex needs by providing for the assessment of such persons and the development and implementation of appropriate care plans; and

• establish the Multiple and Complex Needs Panel.

Submission

The Committee notes the submission of Mr Philip Grano, Legal Officer, made on behalf of the Office of the Public Advocate. The submission is reproduced as Appendix 4.

Content and Committee comment

[Clauses]

[2]. The Bill comes into operation on a day or days to be proclaimed but not later than on 30 June 2004. The Act will be repealed 3 years after its commencement.

[5]. Establishes the Multiple and Complex Needs Panel (the ‘Panel’).

[14]. Provides that the Secretary may refer a person to the Panel if the Secretary believes that person is an eligible person (defined in clause 15). However, the Secretary must not refer an eligible person to the Panel if the person has refused to be referred.

[18]. Gives the Panel discretion to nominate a referred person for assessment if the Panel believes the person is an eligible person. It also allows the Panel to seek to obtain information from any person or organisation for the purpose of forming a belief as to whether the person is an eligible person. Service providers and certain other persons are authorised to disclose information about the referred person in accordance with a request from the Panel.

[19]. Provides that in assessing a nominated person (‘nominee’), the multidisciplinary assessment agency must consult the nominee in person, and if the nominee agrees, the person's family. In addition, the nominee's carers and any person or organisation that is currently providing specified services to the nominee are also consulted. The assessment agency must also undertake a multi-disciplinary analysis of the nominee's needs and ensure that relevant personal information or health information relating to the nominee is obtained and considered.

[20]. Allows the multi-disciplinary assessment agency to obtain information from other persons and organisations about the referred person and permits those persons and organisations to disclose that information.

[24]. Allows for variation, extension and termination of the care plan by the Panel in accordance with a request from either the person to whom the care plan relates or the person's legal guardian, the care plan co-ordinator, the Secretary or a service provider under the care plan. A care plan may be extended for a maximum of 12 months.

[25]. Provides that service providers identified in a care plan may share personal and health information about a person to whom the care plan relates provided that the information is either disclosed or used on the basis that disclosure is in the best interests of the person and would assist in giving effect to the care plan.

[26]. A person or the person's legal guardian may refuse at any time to be referred to the Panel; assessed by a multidisciplinary agency in accordance with clause 19; or be the subject of a care plan. Refusals may be made orally or in writing. The person or organisation to whom a purported refusal is made must determine whether, in their professional judgement, it constitutes a refusal for the purposes of the Act.

[28]. Provides that any care plan or notice that is required to be given to a person under the Bill must also be given to the person's parent if the person is under 18 or to the person's guardian if one has been appointed.

[31]. Provides a confidentiality provision directed at “relevant persons” (as defined by the Act). A relevant person is not permitted to disclose certain health information unless disclosure is permitted under the provisions of the Bill. One of the permitted disclosure exceptions is section 31(3)(d) - where the disclosure is with the consent of the Minister in accordance with conditions specified by the Minister and the disclosure is determined by the Minister to be in the public interest. This provision is in addition to the obligations placed on persons under the Health Records Act 2001 and the Information Privacy Act 2000.

[32]. Provides that the Bill does not affect obligations imposed on persons or organisations by the Information Privacy Act 2000 and the Health Records Act 2001.

Expiry of Act

[33]. The Act sunsets on the third anniversary of the day on which clause 5 (establishment of the panel) comes into operation.

The Committee makes no further comment.

See also: Appendix 4 - Submission from the Office of the Public Advocate concerning the Human Services (Complex Needs) Bill

Instruments (Enduring Powers of Attorney) Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Instruments Act 1958 to revise the laws relating to enduring powers of attorney and extends the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) in respect to enduring powers of attorney.

Notes:

• An enduring power of attorney – Is a legal document that allows a donor to appoint an attorney to make financial and legal decisions on the donor's behalf, and enables the attorney to continue to make those decisions even after the donor loses legal capacity.

• Model – The Bill inserts a new Part XIA to apply to enduring powers of attorney and is modelled on provisions in the Queensland Powers of Attorney Act 1998.

• Specified powers – The Bill includes a specific power which allows a donor to specify how an attorney is to carry out their responsibilities to the donor by including in the document special conditions and instructions about the exercise of the power.

• Legal capacity – A donor can only make an enduring power of attorney while he or she understands the nature and effect of the enduring power. A test (s.118) of legal capacity is included in the legislation.

• Witnesses – The Bill requires that the enduring power of attorney must contain a certificate signed by each of two adult witnesses to the effect that the donor signed freely and voluntarily in the presence of the witness and that, at the time, the donor appeared to have the capacity necessary to make the document. The witnesses must sign and date the certificate in the presence of the donor and each other. A witness cannot be the donor, or the person appointed as attorney, and only one of the witnesses can be a relative of the donor or of the attorney. One of the witnesses must also be authorised by law to witness the signing of statutory declarations.

• Acceptance by attorney – The attorney must sign and date a statement of acceptance of the enduring power of attorney. The attorney must undertake to exercise the powers given under the enduring power of attorney with reasonable diligence to protect the interests of the donor; to avoid acting where there is any conflict of interest between the donor and the attorney; and to exercise the powers given in accordance with the new Part XIA.

• Duty of attorney – The attorney must keep accurate records and accounts of all dealings and transactions made under the power. (see recommendations made by the Victorian Law Reform Commission ‘Report No 35: Enduring Powers of Management (1990)’).

• Medical treatment excluded – An enduring power of attorney does not authorise an attorney to make decisions about the medical treatment of the donor.

• Guardian and enduring guardian’s decisions prevail – Where a decision made by a guardian or enduring guardian under the Guardianship and Administration Act conflicts with a decision by an enduring attorney, then the decision of the guardian or enduring guardian will prevail. Similarly, where VCAT makes an administration order under the Guardianship and Administration Act 1986 in respect of the donor, then the attorney may only exercise the enduring power to the extent authorised by VCAT.

• Revocation of enduring attorney – The donor may revoke or withdraw an enduring power of attorney at any time as long as the donor has legal capacity and is capable of understanding what he or she is doing.

• Persons ineligible to be attorneys – A bankrupt or a person who is insolvent cannot be an eligible person to be appointed as an attorney. Also, where an attorney becomes bankrupt or insolvent then the power is revoked.

• Information package – An information package containing the relevant forms and other essential information will be available to members of the community. This will be combined with a targeted public information campaign.

• VCAT jurisdiction extended and concurrent with Supreme Court powers – At present, the powers of VCAT in relation to enduring powers of attorney are limited to investigating whether an existing enduring power of attorney should be revoked in the 'best interests' of the donor. The bill confers on VCAT the power to make declarations, orders, directions, recommendations or advice in relation to enduring powers of attorney. VCAT will now be enabled to make a declaration that an enduring power of attorney is invalid on the grounds that the donor did not meet the criteria of the test for legal capacity, as specified in the legislation, at the time the document was created. It is intended that these powers conferred on VCAT will operate concurrently with the powers of the Supreme Court.

• Recognition of interstate enduring power of attorney – The bill provides for the recognition of an enduring power of attorney validly made in another jurisdiction. However, the extent of the powers of these interstate enduring powers of attorney will be limited to the powers that could be validly exercised under the Victorian legislation.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation by proclamation but not later than by 1 July 2004.

[4] Inserts new Part XIA providing for laws relating to an enduring power of attorney. The new Part consists of sections 114 to 125 and 125A to 125ZP.

s.118 provides that a donor can only make an enduring power of attorney while they have capacity and understand the nature and effect of the enduring power and that the power continues even if the donor subsequently ceases to have capacity.

ss.123 to 125C provides for formalities in executing an enduring power of attorney - a witness cannot be the donor, or the person appointed as attorney - only one of the witnesses can be a relative of the donor or of the attorney - one of the witnesses must be a person authorised to witness the signing of statutory declarations - the enduring power of attorney must contain a certificate signed by each witness in accordance with section 125A, namely that the donor signed freely and voluntarily in the presence of the witness; and at the time, the donor appeared to the witness to have the capacity necessary to make the enduring power of attorney.

s.125C specifies that an attorney must keep and preserve accurate records and accounts of all dealings and transactions made under the enduring power.

s.125E specifies that an enduring power of attorney does not authorise the attorney to make decisions about the medical treatment of the donor, and that where a decision made by a guardian or enduring guardian appointed under the Guardianship and Administration Act 1986 conflicts with a decision by an enduring attorney then the decision of the guardian or enduring guardian will prevail.

s.125F specifies that where the VCAT makes an administration order under the Guardianship and Administration Act 1986 in respect of the donor then the attorney may only exercise the enduring power to the extent authorised by the VCAT.

s.125T provides that where an attorney acts in compliance with advice, directions or recommendations of the Court or the Tribunal then the attorney will be deemed to have complied with Part XIA unless the attorney knowingly gave false or misleading information relevant to the advice, directions or recommendations made by the Court or the Tribunal.

s.125U provides that where an attorney acts in good faith without knowing a power is invalid, then the attorney will be able to rely on the power despite its invalidity as against the donor or any other person; and a person who in good faith and without knowing a power is invalid acts in reliance on the exercise of the power by an attorney is entitled to rely on the power despite its invalidity.

ss.125V to 125ZB extends the jurisdiction of the VCAT without limiting the powers of the Supreme Court, in relation to matters involving enduring powers of attorney including the power to make declarations, orders, directions, recommendations or advice.

The Committee makes no further comment.

Non-Emergency Patient Transport Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. Bronwyn Pike MLA
Portfolio responsibility: Minister for Health

Purpose

The purposes of the Bill are to –

• establish a licensing system for certain persons who operate services providing non-emergency transport to or from medical services using stretcher carrying vehicles or offering specialist clinical care or monitoring during transport; and

• otherwise make provision for the regulation of persons operating non-emergency transport to or from medical services using stretcher carrying vehicles or offering specialist clinical care or monitoring during transport; and

• establish a system of accreditation for non-emergency patient transport licence holders who operate particular stand-by services for participants in public events who suffer unanticipated illness or injury during the events; and

• amend the Ambulance Services Act 1986 and the Transport Act 1983; and

• make other related provisions.

Content and Committee comment

[Clauses]

[2]. The Act to comes into operation by proclamation but not later than 1 February 2006.

[4]. Provides that the Act does not apply to non-emergency patient transport services provided by the Australian Defence forces, a person in an emergency area who is acting under the authorisation of the person who has declared the area to be an emergency area and any other person the Governor in Council has exempted from the operation of the Act. The clause also empowers the Governor in Council to exempt persons from the operation of the Act.

[5]. Unless otherwise exempted from the operation of the Act it is an offence to operate non-emergency patient transport services without a licence.

Appeal against decision

[43]. Allows a person whose interests have been affected by a decision of the Secretary under this Act to apply to the Victorian Civil and Administrative Tribunal for review of the decision.

Inspection and enforcement powers

[45 to 47]. Provides for authorised officers to be appointed by the Secretary, the issue of identity cards to such officers and the necessity to produce such cards when officers are exercising powers under the Act.

[48]. A holder of a non-emergency patient transport licence (or stand-by accreditation) may be required to produce documents or vehicles they use for inspection to an authorised officer.

Privilege against self-incrimination

[49]. Provides that a person cannot refuse to comply with a direction from an authorised officer under section 48 on the grounds that they might incriminate themselves.

The clause also provides that any information obtained from a person in these circumstances cannot be used in evidence against the person except in proceedings relating to the giving of false information. However, any information that the relevant person is required to keep by law or that was obtained without the direct assistance of the person is admissible in evidence against the person in criminal proceedings.

[56 to 63]. Deal with infringement notices served under the Act.

[64]. Empowers the Governor in Council to make Regulations in relation to a number of matters including standards and requirements for the operation of non-emergency transport patient services and for services provided under a stand-by accreditation.

[66]. Amends section 10(7) of the Ambulance Services Act 1986 to ensure that a person must pay the fee for an emergency ambulance service whether or not they consented to the provision of the service. [67]. Inserts a new section 10A in the Ambulance Services Act 1986 to allow a person to disclose relevant information to an emergency ambulance service provider about a person who has used the emergency ambulance service and has not provided such information.

The Committee makes no further comment.

Superannuation Acts (Family Law) Bill

Introduced: 26 August 2003
Second Reading Speech: 28 August 2003
House: Legislative Assembly
Minister introducing Bill: Hon. John Brumby MLA
Portfolio responsibility: Treasurer

Purpose

The Bill amends certain specified Superannuation Acts to give effect to changes made to the Family Law Act 1975 (Cth) allowing the splitting of spouse superannuation entitlements, either by consent or by a court order consequent upon the breakdown of a marriage.

The Bill amends the following Acts –

• Emergency Services Superannuation Act 1986

• Government Superannuation Act 1999

• Parliamentary Salaries and Superannuation Act 1968

• State Employees Retirement Benefits Act 1979

• State Superannuation Act 1988

• Superannuation (Portability) Act 1989

• Transport Superannuation Act 1988

• Unclaimed Moneys Act 1962

The Committee notes this extract from the Minister’s Second Reading Speech –

The primary purpose of the Bill is to amend the various Acts governing Victoria's public sector superannuation schemes.

These amendments are necessary to ensure that changes to the Commonwealth's family law and superannuation regime are efficiently and effectively applied to Victoria's public sector superannuation schemes - the Emergency Services Superannuation Scheme, the Parliamentary Contributory Superannuation Fund and the State Superannuation Fund.

Changes to the Commonwealth's Family Law Act 1975 came into effect from 28 December 2002. These changes make superannuation arrangements more certain for couples in the event of separation or divorce, in that the superannuation of married couples that have separated or divorced can now be divided either by agreement or court order. Obligations are imposed on superannuation fund trustees to give effect to these changes.

The Commonwealth changes are important as previously superannuation interests could not be divided or transferred to the other party to the marriage. The Family Court has, in the past, had to take existing superannuation into account by adjusting other property when dividing a couple's assets on the breakdown of marriage.

The amendments contained in this Bill will facilitate the splitting of superannuation in Victoria's public sector superannuation schemes on the breakdown of marriage.

The Bill provides that at the time a splitting order or splitting agreement is served on the trustees of these schemes the non-member spouse's entitlement will be immediately paid to the non-member spouse on satisfaction of certain requirements, or transferred to another superannuation fund nominated by the non-member spouse.

The member's benefit will be accordingly reduced to take into account any payments made to, or on behalf of, a non-member spouse. This reduction will be in line with a methodology approved by the Minister for Finance on advice from the fund's actuary.

The Bill provides that the trustee will have discretion to determine whether to immediately transfer and pay out the spouse's entitlement where the member is in receipt of a disability pension.

This approach has been adopted in view of the fact that many disability pensions are subject to a continual review process, and there is a possibility that the disability pensioner may return to gainful employment.

In such cases, immediate transfer or payout to the spouse may result in inequities between the parties to the marriage, and trustee discretion in these circumstances mitigates this risk.

The Bill contains provisions to ensure that the existing pension commutation rights and lump sum conversion options of current members are not affected by the family law changes.

Further, the Bill provides that the trustees of the Emergency Services Superannuation Scheme, the State Superannuation Fund and the Parliamentary Contributory Superannuation Fund will have the discretion to impose reasonable fees on members and their spouses in relation to requirements under the family law regime. Any such fees will be subject to a maximum level approved by the Minister for Finance.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation either on the day after Royal Assent or on certain deemed dates as specified in the Bill.

[5]. Inserts a new Part 4A (Family Law Provisions) into the Emergency Services Superannuation Act 1986 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply to the Emergency Services Superannuation Scheme.

[8]. Inserts section 6(1)(da) into the Government Superannuation Act 1999 and will require the Government Superannuation Office to comply with the provisions under Part VIIIB of the Family Law Act 1975 (Cth) and regulations made under that Act.

[10]. Inserts a new Division 3A (Family Law Provisions) into the Parliamentary Salaries and Superannuation Act 1968 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply to the Parliamentary Contributory Superannuation Fund.

[12]. Amends the State Employees Retirement Benefits Act 1979 and inserts section 2(5a) to provide that a person cannot become a member on or after the commencement of section 72 of the Public Sector Superannuation (Administration) Act 1993. This new section commences on 1 January 1994, the date section 72 became effective. This amendment ensures there is certainty of closure to new members in respect of the State Employees Retirement Benefits (SERB) Scheme.

[15]. Inserts a new Part IVA (Family Law Provisions) into the State Employees Retirement Benefits Act 1979 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply to the SERB Scheme.

[24]. Inserts a new Part 7A (Family Law Provisions) into the State Superannuation Act 1988 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply to the State Superannuation Fund.

[34]. Inserts a new section 9AA (Family Law Provisions) into the Superannuation (Portability) Act 1989 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply.

[38]. Inserts a new Part 7A (Family Law Provisions) into the Transport Superannuation Act 1988 allowing the Family Law Act 1975 (Cth) amendments relating to the splitting of superannuation on breakdown of marriage to apply to the Transport Superannuation Fund.

The Committee makes no further comment.

Committee Room
15 September 2003

Scrutiny of Acts and Regulations Committee
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