Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Hansard source

The Nick Xenophon Team will be voting against the disallowance motion, which has been taken up by Senator Roberts, with respect to the Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Amendment Determination 2016. I and my colleague Senator Lambie had initially lodged the disallowance motion on 15 February this year, following an urgent meeting with the Queensland Returned and Services League to provide them with time to consider the determination and its implications. The day of our meeting was the final day notice could be given to disallow the instrument.

The Queensland RSL and other stakeholders have expressed concern about the way the family law superannuation splitting regime is being applied with respect to military invalidity pensions; however, this determination does not alter the means of dealing with the family law superannuation splitting regime with respect to military invalidity pensions, which are considered superannuation interests and remain splitable. This was affirmed by Judge Logan in the decision of Campbell v Superannuation Complaints Tribunal 2016. In Campbell's case the court considered the definitions of 'superannuation interest' and 'defined benefit interest' in the Family Law Act and regulations respectively and ultimately held that, contrary to the approach taken by the trustee in the tribunal, the applicant's invalidity pension should not have been valued as a defined benefit interest as defined in the family law regulations. However, as noted, the court held that the invalidity pension was still a superannuation interest for the purposes of the relevant provisions of the Family Law Act and should have been valued for family law purposes as an accumulation interest.

The Federal Court's characterisation of military super interests as accumulation interests gave rise to potential uncertainty about the trustee's authority to provide specific information for the valuation of military super interests as prescribed under the 2004 determination.

The Campbell decision created some doubt about whether the 2004 determination was made under the correct regulation. The consequence was that it was not clear whether the trustee was authorised to provide the most targeted information for the purposes of valuing military invalidity pensions. To that end, the 2016 determination amends the 2004 determination to provide that the 2004 determination is made under both regulations 63 and 64 of the Family Law (Superannuation) Regulations. This ensures that the trustee can provide the prescribed specific information that is most useful for valuing military superannuation interests.

I reiterate that the 2016 determination does not affect whether military super interests are splittable. Consequently, I gave notice of our intention to withdraw the disallowance motion earlier today. Notwithstanding the giving of our notice of our intention to withdraw the disallowance motion, Senator Lambie and I understand the concerns from the veteran community and have written to the government to ask it to provide us with a written assurance that it will consider the underlying policy concerning whether military invalidity pensions should form part of the family law superannuation-splitting regime in circumstances where those pensions are reviewable. Thank you.