Wednesday, 14 June 2017
Regulations and Determinations
Family Law (Superannuation) (Provision of Information — Military Superannuation and Benefits Scheme) Amendment Determination 2016; Disallowance
As a servant to the people of Queensland and Australia, I want to highlight this issue and the injustice of the family law decision that military disability payments are to be divided in Family Law Court decisions. I move:
That the Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Amendment Determination 2016, made under the Family Law Act 1975, be disallowed.
We would like to put on record our opposition within Pauline Hanson's One Nation party to this splitting of payments in cases of disability, since one recipient is not disabled. We understand that this disallowance motion will not resolve the larger problem. We support it as an expression of our opposition to the orderly disbursement of moneys rightly due to disabled veterans who have not suffered disability as a result of service to our country. We will work with the government to help ensure our disabled veterans are given the financial support and dignity that their sacrifices greatly merit. I urge senators to follow the advice of the RSL and vote for a disallowance of the determination by the Attorney-General.
I just want to provide the Senate with some information in relation to this issue, but first I indicate that the government will be opposing the disallowance motion. In doing so, that does not reflect at all on the genuineness of the concerns which Senator Roberts and his colleagues in the One Nation party hold. Senator Hanson has raised this issue with me, and I am happy to work with her and with others—I see Senator Lambie has arrived in the chamber, and I also acknowledge her interest in this issue—but the way to do this is not by supporting this disallowance motion this evening.
Let me explain to the Senate what the position is. As you know, superannuation can be a significant portion of the property pool in family law proceedings. The family law superannuation splitting regime is set out in the Family Law Act and the Family Law (Superannuation) Regulations. That regime allows superannuation interests to be split between parties when a relationship breaks down. It has been in operation since 2002.
The Family Law Act prohibits the courts from adjusting property interests, including superannuation interests, unless they are satisfied that in all the circumstances it is just and equitable to do so. Family law courts split invalidity pensions between parties, just as they split other superannuation interests where it is just and equitable to do so. Family law courts consider the form, nature and characteristics of superannuation interests in deciding what is just and equitable. The Federal Court of Australia in its decision in Campbell v Superannuation Complaints Tribunal in 2016 confirmed that military super invalidity pensions are superannuation interests for the purposes of the superannuation splitting regime.
I made the Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Determination 2016 on 15 November 2016. That determination amended the existing Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Determination 2004. The purpose of the 2004 information determination was to authorise the trustee to provide to parties to family law proceedings the information necessary to allow them to value their superannuation interests. A scheme-specific superannuation information determination was necessary in 2004 because military superannuation interests are valued using scheme-specific methods and factors. The methods and factors for valuing military super interests are contained in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, another legislative instrument. That 2003 instrument has not been amended.
The 2016 determination clarifies that the 2004 information determination is to be taken to have been made under both regulation 63, the source of power for accumulation interests, and regulation 64, the source of power for defined benefit interests. It was necessary to make that clarification because the Campbell decision concluded that military super invalidity pensions are accumulation interests for the purposes of the regulations. The characterisation of a military super interest as either an accumulation interest or a defined benefit interest has no impact on how the interest is valued or split. As I have noted, the valuation method is determined in accordance with the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, and, as I said, that instrument has not been amended. It remains unchanged and the valuation methods and factors remain the same. The 2016 determination does not change whether military super interests are splitable; it merely removes the potential for uncertainty about the authority under which the trustee can provide the most useful information to facilitate valuation of the superannuation interest.
It is important to note that compensation for workplace injury is paid to ADF members under separate legislation—the Safety, Rehabilitation and Compensation Act 1988 and the Military Rehabilitation and Compensation Act 2004. These incapacity payments are economic loss compensation to ADF members and former members for lost capacity to earn due to a service injury or disease. The operation of that legislation, likewise, is unaffected by the 2016 determination.
For those reasons the government will not be supporting the disallowance motion, but, as I said, we will continue to work with colleagues to ensure that the legitimate concerns that have been raised are appropriately addressed. I thank the Senate.
Labor will not be supporting the disallowance for reasons similar to those that the Leader of the Government in the Senate has outlined. We understand the provisions of this instrument are purely for the purposes of facilitating information sharing. Specifically, the instrument requires the trustee to provide eligible persons with information about their superannuation interests upon request. It is this default information which will allow the Family Court to make a just and equitable decision on the splitting of assets. The issues raised with Labor regarding the valuation of superannuation do not go to this instrument, nor does this instrument have the ability to alter the valuation of invalidity pension interests. The characterisation of military super interests as either an accumulation interest or a defined benefit interest has no impact on how the interest is valued or split. The issues raised around the valuation of the invalidity pension, whether it is a defined benefit interest or an accumulation interest, are not represented in the 2016 determination, and, rather, this is a policy argument for the government.
The impact of the 2016 determination is simply to confirm the type of information that a trustee must provide for the purposes of the valuation of military super, not how the valuation is calculated or split. We are certainly willing to have a conversation about the broader policy issue that has been raised as a consequence of this instrument; however, we do not believe this is best dealt with through this instrument.
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.
I will be voting against the disallowance motion with respect to the Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Amendment Determination 2016.
I will be voting against this because it is nothing more than a stunt, plain and simple. Here comes One Nation! It is a stunt! One Nation know that even if it were still able to be disallowed, what they are proposing will not make one single bit of difference in the life of a single veteran in this country. Not one!
When Senator Kakoschke-Moore, the NXT and I originally proposed this disallowance motion it was to provide the Queensland branch of the Returned Services League of Australia some time to consider the Attorney-General's determination and any implications that would be attached to that. RSL Queensland and other ex-service organisations have expressed valid concerns about how the family law superannuation-splitting regime is being applied with respect to military invalidity pensions. These concerns are valid and deserve to be explored, but this disallowance motion does absolutely nothing to explore them. That is because the determination itself does not alter the means of dealing with the family law superannuation-splitting rule as to military invalidity pensions, which under existing law are considered superannuation interests and remain splittable.
When I realised that the determination will not alter the splitting rule I withdrew from the disallowance motion, along with Senator Kakoschke-Moore. I have asked the government to provide a written assurance, as has Senator Kakoschke-Moore, that it will consider the underlying policy of whether military invalidity pensions should form part of the family law superannuation-splitting rule in circumstances where they are reviewable. That is what is actually needed to make a real difference here—a real difference to veterans' lives.
The veteran community is sick of being played for fools like this. Veterans who have served their country deserve better from One Nation than to be treated like pawns in a political stunt, which is all this is this afternoon. It is a political stunt and they are using veterans as pawns. One Nation need to stand up and own the fact that they know that what they are doing here will achieve absolutely nothing. I would expect, further on, that they would apologise for their actions to every Australian veteran out there. Anything less will be more of the same from the party that likes to pretend they care about veterans only when there is a camera trained on them or they can get attention. Cheap votes from veterans!
Not only does this achieve nothing, it promises false hope to those who actually need our help here. It is a disgraceful, cynical and shocking display of One Nation using the veteran community for their own political gain, and it will make absolutely no difference to a veteran. Veterans do not need any more empty promises and useless gestures. They need our help, and this does nothing to help them.
Some of us in this place actually give a damn about making a difference. Some of us take the work we are doing here seriously. Stop wasting our time with these useless stunts and stop using veterans as a chance to get your names in the newspaper. Shame on you! They deserve better and Australia deserves better. You ought to be ashamed of yourselves.
Do you know what blows me away even more? These are the same people who pulled a political stunt on the veterans, pretending they actually cared about them. They did a big thing on Facebook here not that long ago, calling veterans in and pretending that they cared about their PTSD. And yet not one of them has shown up at the veterans' suicide inquiry. Not one!
If this is not a political stunt and using a veteran as a pawn, I do not know what is. But I will tell you what: today, you are an absolute disgrace in my eyes and those of many veterans out there and this will come back to bite you. You deserve everything you get.
This afternoon, we did our research on this and we saw this as a way of showing our support. After contacting the RSL, they urged us to continue this for them. Our office did that this afternoon to show our support for the RSL and 5,000 veterans who are under pressure with this. We know that the government needs to act on this, and that is what we are doing. We are facilitating and driving that. On behalf of 5,000 veterans and the RSL, who have encouraged us to continue this, that is why we speak. I urge all senators to vote in favour of this disallowance motion.