Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2017 [F2017L00471]-Response required [2017] AUSStaCSDLM 177 (14 June 2017)

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Instrument	Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2017 [F2017L00471]
Purpose	Adjusts entitlements of divorced or separated spouses, or of separated de facto couples (except in Western Australia), under certain orders or agreements splitting particular kinds of future superannuation benefits made in property settlements under the Family Law Act 1975
Authorising legislation	Family Law (Superannuation) Regulations 2001
Department	Attorney-General's
Disallowance	Exempt (tabled Senate 9 May 2017)
Scrutiny principle	Standing Order 23(3)(a)

Background

The Legislation (Exemptions and Other Matters) Regulation 2015 [F2015L01475] (exemption regulation)^[1] exempts particular instruments from disallowance, including, by virtue of table item 3 in section 9, instruments (other than regulations) relating to superannuation.

The ES to the exemption regulation provides the following justification for the exemption:

This exemption exists because exposure of superannuation instruments to disallowance would cause commercial uncertainty, as well as uncertainty for superannuation fund members and providers. These instruments are intended to have enduring operation and are not suitable for the disallowance process.

Classification of legislative instrument as exempt from disallowance

The Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2017 [F2017L00471] (the determination) adjusts entitlements of divorced or separated spouses, or of separated de facto couples (except in Western Australia), under certain orders or agreements splitting particular kinds of future superannuation benefits made in property settlements under the Family Law Act 1975.

As set out above, by virtue of table item 3 in section 9 of the exemption regulation, the committee understands the determination to be exempt from disallowance,

as it is an instrument (other than a regulation) which relates to superannuation.

However, the committee notes that the statement of compatibility to the determination refers to the determination as a 'Disallowable Legislative Instrument'.

The committee seeks to confirm whether the determination has been properly classified as exempt from disallowance (and thereby removed from the effective oversight of the Parliament).

The committee requests the advice of the minister in relation to the above.

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[1] The exemption regulation replaced the former Legislative Instruments Regulations 2004, and was part of a suite of changes to the regime governing legislative instruments implemented by the Acts and Instruments (Framework Reform) Act 2015 (including changing the name of the Legislative Instruments Act 2003 to the Legislation Act 2003).