Superannuation Legislation Amendment Act 1991 (Cth)
PART 1—PRELIMINARY
Section | |
| Short title |
| Commencement |
PART 2—AMENDMENTS OF THE SUPERANNUATION ACT 1976 | |
| Principal Act |
| Interpretation |
| Meaning of “re-employed former contributor with preserved rights” |
| Retirement on ground of invalidity |
| Sections 11 and 13 not applicable to certain persons employed on or after 1 July 1990 |
| Statutory office holders |
| Persons excluded from definition of “eligible employee” |
| Medical examination, and issue of benefit classification certificate, on becoming eligible employee |
| Benefit event happening before section 16 procedures completed |
| Commissioner for Superannuation |
| Functions |
| Indemnification of members of the Board |
| Decreases in salary |
| Leave of absence without pay |
| Interpretation |
| Repeal of section and substitution of new section: |
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| Board to decide whether to approve retirement |
| Determination of requests, payments and rehabilitation programs to be in accordance with the Rules for the administration of the Superannuation (1990) Scheme |
| Repeal of Division |
TABLE OF PROVISIONS—
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| Entitlement to age retirement benefit |
| Entitlement to early retirement benefit |
| Election for lump sum benefit in case of involuntary retirement |
| Election to commute |
| Reduction of invalidity pensions because of earnings |
| Insertion of new section: |
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| Entitlement to spouse’s benefit on death of pensioner |
| Repeal of Division and substitution of new Division: |
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| Insertion of new section: |
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| Repayment of interim benefits |
| Payments of certain benefits to Fund by new productivity employees |
| Productivity benefit |
| Accumulated employer contributions |
| Payment of productivity benefit |
| Insertion of new Part: |
PART VIb—POSTPONEMENT OF BENEFITS OF RETIREMENT PENSIONERS | |
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| Payment of accumulated contributions where no other benefit payable etc. |
| Payments into and out of Consolidated Revenue Fund |
| Instalments of pension |
| Payment of part of a spouse’s pension etc. attributable to children |
| Payment of orphan benefit |
| Transfer value payable in respect of previous employment |
| Payment of transfer values to Commissioner |
| Insertion of new section: |
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| Interpretation |
| Public employment |
| Eligible superannuation schemes |
| Deferred benefits |
| Circumstances in which person entitled to deferred benefits |
| Election for transfer value by persons in relation to whom deferred benefits are applicable |
| Person who is entitled to rights under Division not entitled to rights under other provisions of Act |
| Certain former eligible employees not entitled to benefits under Division |
| Special provisions affecting certain contributors under certain superannuation schemes |
| Interpretation |
TABLE OF PROVISIONS—
Section | |
| Insertion of new Part: |
PART Xa—REVIEW OF DECISIONS MADE BY THE BOARD | |
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| General provisions applicable to elections under Act |
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PART XIIIa—TRANSFERS TO AUTHORISED SUPERANNUATION SCHEMES | |
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| Election to join Superannuation (1990) Scheme |
| Loss of entitlement to benefits |
PART 3—AMENDMENTS OF THE SUPERANNUATION ACT 1990 | |
| Principal Act |
| Interpretation |
| Membership of Superannuation Scheme |
| Insertion of new section: |
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TABLE OF PROVISIONS—
Section | |
| Repeal of section and substitution of new section: |
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| Member not to be retired on grounds of invalidity without certificate from Board |
| Payment by approved authorities etc. to the Commonwealth in respect of benefits payable to members employed etc. by authorities |
| Insertion of new section: |
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| Insertion of new Part: |
PART 8a—TRANSFERS TO APPROVED AND AUTHORISED SUPERANNUATION SCHEMES | |
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| Certain authorities to pay part of costs of administration |
| Cost of medical examination on entry into Superannuation Scheme |
| Indemnification of trustees etc. |
| Disallowable instruments |
PART 4—AMENDMENT OF THE SUPERANNUATION BENEFITS (SUPERVISORY MECHANISMS) ACT 1990 | |
| Principal Act |
| Provision of superannuation in accordance with Ministerial guidelines |
PART 5—AMENDMENTS OF THE SUPERANNUATION (PRODUCTIVITY BENEFIT) ACT 1988 | |
| Principal Act |
| Interpretation |
| Insertion of new section: |
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| Interest |
[
The Parliament of Australia enacts:
(2) Section 26 is taken to have commenced on 18 December 1986.
Sections 82, 83 and 84 are taken to have commenced on 1 July 1990.
Sections 10, 11 and 60 are taken to have commenced on 1 April 1991.
Sections 13, 16, 21, 34, 46, 47, 50, 53 and 55 commence on the day on which this Act receives the Royal Assent or immediately after the commencement of section 53 of the
3. In this Part,“Principal Act” means theSuperannuation Act 1976 1.
4. Section 3 of the Principal Act is amended:
(a) by inserting after paragraph (ea) in the definition of “eligible employee” in subsection (1) the following paragraph:“(eb) a person who has made an election under section 6a of the
Superannuation Act 1990 ;”;
(b) by omitting paragraph (a) from the definition of “final annual rate of salary” in subsection (1) and substituting the following paragraph:“(a) if paragraph (b), (c) or (d) does not apply in relation to the person—the person’s annual rate of salary on his or her last day of service; or”;
(c) by adding at the end of the definition of “final annual rate of salary” in subsection (1) the following word and paragraph:“or (d) if the person on his or her last day of service had, or would have had if that last day of service were the anniversary of his or her birth, an imputed annual rate of salary within the meaning of paragraph 47(1)(b) that was higher than the rate mentioned in paragraph (a), (b) or (c) — that imputed annual rate of salary;”;
(d) by omitting from subsection (1) the definition of “retirement pensioner” and substituting the following definition:“
‘retirement pensioner’ means:
(a) a person to whom age retirement pension, early retirement pension or invalidity pension is payable; or
(b) a person who has ceased to be an eligible employee and has made an election under section 110t;”;
(e) by inserting in subsection (1) the following definitions:
“
‘deferred annuity’ means an annuity that cannot be surrendered or assigned by the person in respect of whom it was purchased until that person attains the age of 55 years and under which benefits are payable to, or in respect of, the person only in one or more of the following circumstances:
(a) the person retired from the workforce and attained an age of not less than 55 years;
(b) the retirement of the person from the workforce before attaining the age of 55 years on the ground of permanent invalidity;
(c) the death of the person;
(d) the permanent departure of the person from Australia;
(e) such other circumstances as the Insurance and Superannuation Commissioner within the meaning of the
Occupational Superannuation Standards Act 1987 approves;(f) such circumstances as are prescribed;
‘extra spouse’s pension’ means pension payable under Division 3a of Part VI;
‘preservation fund’ means a fund that preserves benefits paid into it in accordance with standards prescribed under theOccupational Superannuation Standards Act 1987 ;”.
“(a) the person:
(i) was a contributor under the superseded Act; or
(ii) has ceased to be an eligible employee; and”.
7. Section 13a of the Principal Act is amended:
(a) by omitting “or the superseded Act” from subparagraph (a) (i);
(b) by inserting in subparagraph (a) (ii) “or the superseded Act” after “this Act”;
(c) by inserting after subparagraph (a) (ii) the following subparagraph:
“(iii) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or”.
8. Section 14 of the Principal Act is amended:
(a) by omitting “or the superseded Act” from subparagraph (5) (a) (i);
(b) by inserting in subparagraph (5) (a) (ii) “or the superseded Act” after “this Act”;
(c) by inserting after subparagraph (5) (a) (ii) the following subparagraph:
“(iii) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or”.
9. Section 15a of the Principal Act is amended:
(a) by omitting “or the superseded Act” from subparagraph (2) (c) (ii);
(b) by inserting in subparagraph (2) (c) (iii) “or the superseded Act” after “this Act”;
(c) by inserting after subparagraph (2) (c) (iii) the following subparagraph:
“(iv) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or”.
“(4a) Subsection (4) does not apply after 31 March 1991 in relation to a person:
(a) in respect of whom a benefit classification certificate was not in force on that date; and
(b) who was on 30 June 1990, and continued to be until 31 March 1991, an eligible employee.
“(4b) Despite subsection (4a), subsection (4) applies to a person mentioned in subsection (4a) who, after 31 March 1991, ceases to be an eligible employee and again becomes an eligible employee.
“(4c) Nothing in subsection (4a) affects the operation of section 16ac or subsections 184 (5) to (5c) (inclusive).”.
“(10) Nothing in this section applies in relation to a person who on 30 June 1990 was, and until the time of the benefit event in relation to the person, being a benefit event that occurred after 31 March 1991, continued to be, an eligible employee.”.
“(2) Except as otherwise provided by this Act, the Commissioner is to have the general administration of this Act and the superseded Act.”.
13. Section 27c of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:“(1) The functions of the Board are:
(a) to manage and invest the Fund so as to maximise the return earned on the Fund, having regard to:
(i) the need to make provision for payments out of the Fund under this Act; and
(ii) the need for equity among eligible employees; and
(iii) the need to exercise reasonable care and prudence in order to maintain the integrity of the Fund; and
(b) to give directions under subsection 7 (2); and
(c) to give directions for the purposes of subsection 51 (1); and
(d) to give certificates for the purposes of section 54c; and
(e) to make decisions relating to the retirement of eligible employees as provided by Part IVa including decisions relating to the making of pre-assessment payments; and
(f) to make determinations in respect of income tax as provided by subsection 110q (1a); and
(g) to make declarations under subsection 133 (1); and
(h) to make declarations under subsection 134 (1); and
(i) to give directions under subsection 139a (1a); and
(j) to make declarations under subsection 145 (11); and
(k) to reconsider decisions in accordance with Part Xa; and
(l) to make determinations in respect of interest as provided by section 154a.”;
(b) by omitting from subsection (2) “paragraph (1) (aa)” (wherever occurring) and substituting “paragraph (1) (a)”.
“(3) Any money becoming payable by the Board in respect of an action, liability, claim or demand is to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.”.
15. Section 47 of the Principal Act is amended:
(a) by inserting in subsection (1) “such rate as is relevant to the eligible employee under the regulations or if there is no such rate” after “of this subsection, to be”;
(b) by omitting from paragraph (1) (a) “that highest rate” and substituting “that highest annual rate of salary”;
(c) by inserting in subsection (3) “such rate as is relevant to the eligible employee under the regulations or if there is no such rate” after “be deemed to be”;
(d) by omitting from paragraph (3) (c) “that highest rate” and substituting “that highest annual rate of salary”.
16. (1) Section 51 of the Principal Act is amended:
(a) by omitting from subsection (1) “Minister” and substituting “Board”;
(b) by omitting from subsection (1a) “Minister” and substituting “Board”;
(c) by omitting from subsection (2) “Minister” and substituting “Board”;
(d) by inserting after subsection (2) the following subsections:
“(2a) The Minister may, in writing, formulate principles with respect to the giving by the Board of directions for the purposes of subsection (1).
“(2b) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (2a).
“(2c) In considering whether to give a direction for the
purposes of subsection (1) and whether to give a direction subject to conditions, the Board must have regard to any such principles that are in force.”;
(e) by omitting subsection (6) and substituting the following subsection:“(6) A person who is on leave of absence without pay for reasons related to:
(a) the birth of a child of the person or of the spouse of the person; or
(b) the termination (otherwise than by child-birth) of a pregnancy of the person; or
(c) the adoption of a child by the person;
is taken, for the purposes of this section, not to be absent during that period on leave of absence without pay.”.
“
“54g. If the request to the Board was made in relation to a condition in respect of which the eligible employee is entitled to receive compensation under the
(a) if the eligible employee is an employee of an administering authority—also ascertain whether or not the administering authority recommends that the eligible employee be retired because he or she is totally and permanently incapacitated; or
(b) if the eligible employee is not an employee of an administering authority—also ascertain whether or not Comcare recommends that the eligible employee be retired because he or she is totally and permanently incapacitated.”.
“(aa) any reference in those Divisions to an approved medical practitioner were a reference to an approved medical practitioner within the meaning of this Act; and”.
21. (1) Division 5 of Part IVa of the Principal Act is repealed.
A person who, immediately before the commencement of this section, was entitled to make an application under a provision of Division 5 of Part IVa of the Principal Act for reconsideration of a decision may, after that commencement, make an application for reconsideration of that decision under the corresponding provision of Part Xa of that Act as amended by this Act.
Where, immediately before the commencement of this section, the Board mentioned in Part IVa of the Principal Act had not determined:
(a) an application made under Division 5 of that Part; or
(b) a matter that it had, of its own motion, referred to a Reconsideration Advisory Committee under that Division;
the application is taken to have been made or the matter referred, as the case may be, under the corresponding provision of Part Xa of that Act as amended by this Act and anything done in relation to the application or matter under that Division is taken to have been done under Part Xa.
“(4) Payment of benefit to which a person becomes entitled under this section may be postponed under Part VIb.”.
“(2) Payment of benefit to which a person becomes entitled under this section may be postponed under Part VIb.”.
24. Section 62 of the Principal Act is amended:
(a) by omitting from subsection (1) “a lump sum”;
(b) by inserting in subsection (2) “being a person who ceases to be an eligible employee before 1 July 2000,” after “under subsection (1),”;
(c) by inserting after subsection (2) the following subsection:“(2a) Where a person makes an election under subsection (1), being a person who ceases to be an eligible employee on or after 1 July 2000, the person is entitled, instead of pension and lump sum benefit to which, but for the election, the person would be entitled under section 55 or 59:
(a) if the person has attained the age of 55 years at the time he or she ceases to be an eligible employee and provides the Commissioner with a statement to the effect that he or she has retired from the workforce upon so ceasing—to payment of a lump sum benefit equal to the sum of:
(i) 3½ times the amount of the person’s accumulated basic contributions; and
(ii) the amount of the person’s accumulated supplementary contributions (if any); or
(b) if the person has not attained that age or provided the Commissioner with such a statement—to have either of the following subparagraphs apply as specified in his or her election under subsection (1):
(i) to have an amount equal to the lump sum benefit mentioned in paragraph (a) paid into a preservation fund nominated by the person or applied to the purchase of a deferred annuity selected by the person; or
(ii) to payment of an amount equal to the amount of the person’s accumulated contributions and to have an amount equal to the balance of the lump sum benefit mentioned in paragraph (a) paid into a preservation fund nominated by the person or applied to the purchase of a deferred annuity selected by the person.”.
“(2) If a pension to which this Division applies becomes, or is about to become, payable on a date worked out under section 110tb to a person who elected to postpone payment of that pension under Part VIb, the person may, not later than 3 months after but not earlier than 3 months before, the pension becomes so payable, make, by notice in writing to the Commissioner, an election to commute that pension into a lump sum benefit payable to him or her.”.
Section 73a of the Principal Act is amended by omitting “annual rate of salary” from paragraph (b) of the definition of “relevant maximum rate” in subsection (1) and substituting “final annual rate of salary”.
After section 73a of the Principal Act the following section is inserted:
“73b. Where:
(a) a person is entitled to receive payments of a kind mentioned in section 54l (in this section called
‘pre-assessment payments’ ); and(b) the person is retired on the ground of invalidity with effect from a day occurring during the period of the person’s entitlement to pre-assessment payments;
the person is entitled to invalidity pension in respect of a pension pay day immediately preceding a contribution day occurring during that period only to the extent (if any) by which the amount of pension that, but for this section, would be payable exceeds the amount of pre-assessment payment payable on that contribution day.”.
“(b) if the pensioner:
(i) did not make an election under section 64; or
(ii) made an election under subsection 64 (2) but died before a lump sum benefit became payable;
to spouse’s additional pension under section 95.”.
“109ab. (1) Where a person (in this section called the
“(2) The amount of spouse’s pension payable to the spouse must not exceed:
(a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or
(b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or
(c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.
“(3) The applicable percentage mentioned in subsection (2) is:
(a) if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or
(b) if there is one such eligible child—78%; or
(c) if there are 2 such eligible children—89%; or
(d) if there are 3 or more such eligible children—100%.
“(4) The Commissioner must, having regard to:
(a) the needs of the spouse; and
(b) the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and
(c) such other matters as the Commissioner considers relevant;
subject to the limitations set out in subsections (5) and (7), determine the part of a benefit to which the spouse is entitled under Division 1, 2, 3 or 3a that is attributable to each such child.
“(5) Benefit attributed under subsection (4) to an eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate:
(a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or
(b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or
(c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.
“(6) The applicable percentage mentioned in subsection (5) is:
(a) if there is one eligible child not in the custody, care and control of the spouse—45%; or
(b) if there are 2 such eligible children—80%; or
(c) if there are 3 such eligible children—90%; or
(d) if there are 4 or more such eligible children—100%.
“(7) Benefit attributed under subsection (4) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of:
(a) the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or
(b) the maximum benefit that, under subsection (5), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of the spouse.
“(8) The Commissioner must not determine that a part of spouse’s additional pension, being such pension mentioned in sections 89 and 93, is attributable to a partially dependent child or partially dependent children.
“(9) Where the Commissioner makes a determination under subsection (4), the spouse may make any election under this Act in relation to the part of a benefit that, under the determination, is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as if the part of the benefit were the whole of the benefit to which the spouse had become entitled.
“(10) Where a determination is made under subsection (4), the Commissioner, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as the Commissioner considers relevant, may vary the determination from time to time.
“(11) A reference in subsection (2) to spouse’s pension does not include a reference to spouse’s additional pension mentioned in sections 89 and 93.
“110. (1) Where a person (in this section called the
“(2) Subject to this section and section 110ab, benefit payable under Division 1, 2, 3 or 3a to those spouses is such benefit as would be payable in respect of the deceased person if the deceased person had had only one spouse who survived him or her.
“(3) The Commissioner must, having regard to:
(a) the respective needs of the surviving spouses; and
(b) the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and
(c) such other matters as the Commissioner considers relevant; allocate any benefit payable in respect of the deceased person under Division 1, 2, 3 or 3a (other than a benefit payable in accordance with section 91) among those spouses, subject to the limitations set out in subsections (4) and (5), and benefit is payable accordingly.
“(4) The amount of spouse’s pension payable to a spouse must not exceed:
(a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the
invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or
(b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or
(c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.
“(5) The applicable percentage mentioned in subsection (4) is:
(a) if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or
(b) if there is one such eligible child—78%; or
(c) if there are 2 such eligible children—89%; or
(d) if there are 3 or more such eligible children—100%.
“(6) Where, under subsection (3), the Commissioner allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children, or a partially dependent child or partially dependent children, of the deceased person, the Commissioner must determine the part of the benefit that is attributable to each such child other than, in the case of a benefit payable under section 91 or 95, a partially dependent child.
“(7) Benefit attributed under subsection (6) to an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses must not exceed in the aggregate:
(a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or
(b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible
employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or
(c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death.
“(8) The applicable percentage mentioned in subsection (7) is:
(a) if there is one eligible child not in the custody, care and control of any of the surviving spouses—45%; or
(b) if there are 2 such eligible children—80%; or
(c) if there are 3 such eligible children—90%; or
(d) if there are 4 or more such eligible children—100%.
“(9) Benefit attributed under subsection (6) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of:
(a) the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or
(b) the maximum benefit that, under subsection (7), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of any of the surviving spouses.
“(10) Where the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age:
(a) the Commissioner, having regard to:
(i) the respective needs of the surviving spouses; and (ii) the respective needs of any eligible child or eligible children; and
(iii) such other matters as the Commissioner considers relevant;
must, for the purposes of ascertaining the benefit payable in accordance with section 91, allocate the accumulated contributions of the deceased person among such spouses; and
(b) section 91 applies in relation to a spouse of the deceased person as if:
(i) the deceased person had had only one spouse who survived him or her and that person were that spouse; and
(ii) the accumulated contributions of the deceased person
were the part of those contributions allocated to that spouse under paragraph (a); and
(iii) each reference in that section to 13.4 per centum were a reference to such percentage as bears to 13.4 per centum the same proportion as the part of the accumulated contributions of the deceased person allocated to that spouse under paragraph (a) bears to the accumulated contributions of the deceased person.
“(11) Where, under subsection (10), the Commissioner allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses, the Commissioner must determine the part of the benefit that is attributable to each such child.
“(12) Each of the surviving spouses of a deceased person may make such elections under this Act in relation to the part of a benefit allocated to the spouse that is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as could be made by the spouse in relation to the benefit if the deceased person had had only one spouse who survived him or her and that person were that spouse.
“(13) Where a benefit is payable in accordance with an allocation made under subsection (3) or (10), the Commissioner, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as the Commissioner considers relevant, may vary the allocation from time to time.
“(14) Where:
(a) benefit is payable to the surviving spouses of a deceased person under subsection 81 (1) or (2); and
(b) the spouses are entitled under subsection (12) of this section to make an election under section 84 or 87; and
(c) one or more, but not all, of the surviving spouses make such an election;
then:
(d) unless the Commissioner otherwise directs, orphan pension is not payable in respect of a child (including an adopted child, an ex-nuptial child, a foster child, a step-child or a ward) of a spouse who makes such an election; and
(e) if orphan pension becomes payable in respect of a child or children of the deceased person, the rate of the pension is such rate as the Commissioner determines, being a rate equal to such rate as the Commissioner considers would have been the rate of pension payable to, or for the benefit of, that child or those children but for paragraph (d).
“(15) Orphan benefit is not payable under section 102, 103, 104, 107 or 108 in respect of the children of a deceased person until the death of the last of the surviving spouses entitled to pension under this section.
“(16) A reference in subsection (4) to spouse’s pension does not include a reference to spouse’s additional pension mentioned in sections 89 and 93.
“110ab. (1) If, at any time:
(a) spouse’s pension is payable:
(i) to the spouse of a deceased eligible employee under section 82, 83, 85, 86 or 90; or
(ii) to the spouse of a deceased pensioner under section 94 or 96; and
(b) the sum of the spouse’s pension and extra spouse’s pension (if any) is less than the annual rate of the pension by reference to which the rate of spouse’s pension is calculated under whichever is applicable of section 82, 83, 85, 86, 90, 94 or 96 (in this section called the
‘base amount’ ); and(c) there is more than one spouse of the deceased eligible employee or pensioner;
the spouse’s pension is increased under this section.
“(2) The increase in the annual rate of spouse’s pension is:
(a) the applicable percentage of the base amount; or
(b) the amount by which the base amount exceeds the sum of the spouse’s pension and the extra spouse’s pension;
whichever is less.
“(3) Where, at any time, the spouse’s pension is increased under this section, the applicable percentage is:
(a) if there are 2 spouses—11%; or
(b) if there are 3 spouses—22%; or
(c) if there are 4 or more spouses—33%.”.
30. After section 110e of the Principal Act the following section is inserted:
“110ea. Where:
(a) the Minister makes a declaration under section 110e with retrospective effect; and
(b) as a result of the making of the declaration, productivity contributions are refunded to an employer;
interest in respect of the amount refunded is payable to the employer at the time of refunding the productivity contributions or as soon as practicable afterwards.”.
“(2) Payment of a productivity benefit that becomes payable in respect of a person under this section may be postponed under Part VIb.”.
“(1) For the purposes of this Act, the accumulated employer contributions in respect of a person who ceases to be an eligible employee are the sum of:
(a) an amount equal to the difference between the sum of the productivity contributions paid or payable in respect of the person and the sum of any amounts in the nature of income tax relevant to those contributions; and
(b) interest on the amount mentioned in paragraph (a); and
(c) where the person:
(i) was an eligible employee on, and at all times after, 30 June 1990; and
(ii) was a productivity employee on 1 July 1990;
an amount equal to his or her notional interim benefit; and
(d) interest on the amount mentioned in paragraph (c); and
(e) where an amount has been paid or transferred to the Commissioner under section 110k, 110l or 110m in respect of the employee, other than an amount to which subsection 110n (2) applies—the amount paid or transferred less such amount (if any) in the nature of income tax that is relevant to that amount; and
(f) interest on the paid or transferred amount mentioned in paragraph (e).
“(1a) For the purposes of subsection (1), an amount in the nature of income tax relevant to a productivity contribution or to an amount paid or transferred to the Commissioner to which paragraph (1) (e) applies is such amount as is calculated in accordance with a determination made by the Board for the purposes of this section.
“(1b) A determination by the Board under subsection (1) takes effect from:
(a) a specified day; or
(b) if no day is specified in the determination—the day of the making of the determination;
and must be published in the
35. Section 110r of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:“(1) Subject to subsection (2), where a productivity benefit becomes payable in respect of a person:
(a) because the person:
(i) ceased to be an eligible employee on or after attaining the age of 60 years; or
(ii) where the person has attained the age of 55 years—is deemed, under subsection 58 (2), to have retired voluntarily; or
(iii) where the person has attained the age of 55 years and has not made an election under section 137—is deemed, under subsection 58 (3), to have retired involuntarily; or
(b) because of the person’s retirement on the ground of invalidity;
then:
(c) in the case of a person who ceased to be an eligible employee on or after attaining the age of 65 years or who retired on the ground of invalidity—the benefit is payable to the person; and
(d) in the case of a person other than a person mentioned in paragraph (c)—the benefit is payable to the person if the person provides the Commissioner with a statement to the effect that he or she has retired from the workforce.”;
(b) by omitting from subsection (4) “, (7) and (9)” and substituting “and (7)”;
(c) by inserting after subsection (4) the following subsection:“(4a) Subject to subsections (5), (6) and (7), where:
(a) a productivity benefit becomes payable in respect of a person to whom paragraph (1) (d) applies; and
(b) the person does not provide the Commissioner with a statement mentioned in that paragraph;
the benefit:
(c) if the amount of the benefit is less than $500—is payable to the person; or
(d) if the amount of the benefit is $500 or more—must, in accordance with a nomination made by the person:
(i) by preserved in a preservation fund nominated by the person; or
(ii) be applied to the purchase of a deferred annuity nominated by the person.”;
(d) by inserting in subsection (5) “or (4a) (c)” after “paragraph (4) (c)”;
(e) by inserting in subsection (6) “or (4a) (d)” after “paragraph (4) (d)”;
(f) by inserting in subsection (7) “or (4a) (d)” after “paragraph (4) (d)”;
(g) by omitting from subsection (8) “subsection (1) or (4)” and substituting “subsection (1), (4) or (4a)”;
(h) by omitting subsection (9).
“PART VI b —POSTPONEMENT OF BENEFITS OF RETIREMENT PENSIONERS
“110t. (1) A person who is, or is about to become, a person who:
(a) has attained his or her minimum retiring age but has not attained the age of 65 years; and
(b) has become entitled to benefits under section 55 or 59;
may, not later than 3 months after but not earlier than 3 months before becoming such a person, by notice in writing given to the Commissioner, elect that this Part apply to him or her.
“(2) An election under subsection (1) is only valid if the person provides the Commissioner, not later than 3 months after, but not earlier than, the day on which the person becomes a person mentioned
in that subsection, with a statement to the effect that he or she has not retired from the workforce.
“110ta (1) If a person makes an election under section 110t, payment to the person of:
(a) standard age retirement pension or standard early retirement pension, as the case may be, to which the person is, or is about to become, entitled; and
(b) any productivity benefit which is, or is about to become, payable in respect of the person under section 110p;
is postponed until a date worked out under section 110tb.
“(2) If a person who makes an election under section 110t specifies in that election that payment of the additional age retirement pension or additional early retirement pension, as the case may be, to which the person is, or is about to become, entitled, is to be postponed, payment of that pension is postponed until a date worked out under section 110tb.
“110tb. A benefit, the payment of which has been postponed under this Part, becomes payable on the earlier of the following dates:
(a) the date on which the person attains the age of 65 years;
(b) if the person provides the Commissioner with a statement to the effect that he or she has retired from the workforce—the date on which the statement is so provided.
“110tc. (1) For the purposes of calculating the rate or amount of a benefit payable on a date worked out under section 110tb:
(a) if the benefit became payable on the date on which the person attained the age of 65 years—the person is taken to be entitled to standard age retirement pension under subsection 55 (1); and
(b) if the benefit did not become payable on the date mentioned in paragraph (a)—the person’s age on the date on which the benefit became payable is substituted for the person’s age on his or her last day of service; and
(c) the person’s period of contributory service at the date of ceasing to be an eligible employee continues to be the person’s period of contributory service; and
(d) the amount worked out under subsection (2) is taken to be the person’s final annual rate of salary.
“(2) The amount mentioned in paragraph (1) (d) is an amount equal to the amount per annum that the Commissioner determines would
have been the final annual rate of salary of the person on the day immediately before the date on which the benefit became payable if:
(a) the person had not ceased to be an eligible employee; and
(b) the person had continued to occupy the office or position in respect of which the person’s final annual rate of salary was calculated; and
(c) account were taken of any increase in salary that would have been received had the person continued to be an eligible employee and continued to occupy that office or position, other than an increase resulting from the person progressing to a higher level of salary within a graduated range of salaries applicable to the office or position held by the person; and
(d) there were excluded any allowance or part of a salary (other than an increase in salary mentioned in paragraph (c) that is to be taken into account) that would have been included in the person’s final annual rate of salary had the person been an eligible employee on that day but was not included in the person’s final annual rate of salary when the person ceased to be an eligible employee.
“110td. Where a person who, under this Part, has postponed the payment of benefits dies before the benefits become payable:
(a) Part VI applies in relation to those benefits as if the benefits became payable immediately before the person’s death; and
(b) Part VIa applies in relation to those benefits as if the benefits became payable because of the person’s death.
“110te. (1) Where:
(a) payment of a pension to a person is postponed under subsection 110ta (2); and
(b) the person dies before the pension becomes payable; and
(c) the person is survived by a spouse;
then, whether or not the person made an election under subsection 64 (2), the spouse may make, not later than 3 months after the death of the person, by notice in writing to the Commissioner, an election to commute that pension into a lump sum benefit payable to him or her.
“(2) If a spouse makes an election under subsection (1) to commute a pension, a lump sum benefit equal to the amount of the accumulated contributions of the deceased person is payable to the spouse and spouse’s additional pension is not payable under paragraph 93 (1) (b) to the spouse.
“110tf. Where:
(a) payment of a pension to a person is postponed under subsection 110ta (2); and
(b) the person dies before the pension becomes payable; and
(c) the person is not survived by a spouse but is survived by the person’s child or children;
then, whether or not the person made an election under subsection 64 (2), if the surviving child or one or more of the surviving children are, immediately after his or her death, an eligible child or eligible children or, in the opinion of the Commissioner, are likely to become an eligible child or eligible children—a lump sum benefit equal to the sum of the amount of the accumulated contributions of the deceased person and the accumulated employer contributions in respect of the deceased person is payable in respect of that child or those children.
“110tg. (1) Where a person has been paid:
(a) an amount or amounts by way of pension or by way of pension and lump sum benefit to which the person has become entitled under section 55 or 59 or Part VIa or an amount by way of lump sum benefit to which the person has become entitled under section 62 or Part VIa; and
(b) after that amount was, or those amounts were, paid, the person makes an election under section 110t;
the election does not have effect unless an amount equal to that amount or to the aggregate of those amounts, as the case requires, is paid to the Commissioner within 7 days after the date of the election or within such further period as the Commissioner, in special circumstances, allows.
“(2) Where an amount is paid to the Commissioner by a person under subsection (1), the Commissioner must pay that amount into the Consolidated Revenue Fund and there must be paid out of the Consolidated Revenue Fund (which is appropriated accordingly) into the Superannuation Fund an amount equal to so much of the amount paid to the Commissioner as is equal to the amount that was paid to the Consolidated Revenue Fund under section 112 at the time that the person ceased to be an eligible employee.”.
“(1) Where:
(a) a person ceases to be an eligible employee because of death; or
(b) payment of a pension to a person is postponed under subsection 110ta (2) and the person (including a person who made an election under subsection 64 (2)) dies before the pension becomes payable;
being a person in respect of whom benefit is not payable under Part VI, a lump sum benefit of an amount equal to the person’s accumulated contributions must be paid out of the Fund to his or her personal representatives or to such person or persons (if any) as the Commissioner determines.”.
38. Section 112 of the Principal Act is amended:
(a) by omitting from subsection (1) “sub-section (3) and (4a)” and substituting “subsections (3), (4a) and (10a)”;
(b) by inserting after subsection (10) the following subsections:
“(10a) Where payment of a pension to a person is postponed under subsection 110ta (2), subsection (1) does not apply in relation to the person.
“(10b) Subject to subsection (10c), where a pension, being a pension the payment of which has been postponed under subsection 110ta (2), becomes payable to or in respect of a person, the accumulated contributions of the person must be paid out of the Superannuation Fund into the Consolidated Revenue Fund.
“(10c Where a person who has postponed payment of a pension under subsection 110ta (2) dies and a benefit by way of a lump sum benefit equal to the person’s accumulated contributions becomes payable in respect of the person out of the Superannuation Fund, subsection (10b) does not apply in relation to the person.”.
39. (1) Section 113 of the Principal Act is amended:
(a) by omitting from subsection (1) “Pensions” and substituting “Subject to subsection (1a), pensions”;
(b) by inserting after subsection (1) the following subsection:
“(1a) Partial invalidity pensions are to be paid in fortnightly instalments on contribution days.”;
(c) by adding at the end the following subsection:“(5) The Commissioner may enter into an arrangement with a person’s employer in relation to the payment of an instalment of partial invalidity pension to the person on a contribution day.”.
(a) if that commencement is after a contribution day but on or before the next pension pay day, the person is entitled on that next pension pay day to the full amount of a fortnightly instalment and on the following contribution day to an amount equal to 6/14ths of a fortnightly instalment; or
(b) if that commencement is after a pension pay day but on or before the next contribution day, the person is entitled on that next contribution day to an amount equal to 6/14ths of a fortnightly instalment.
40. Section 114 of the Principal Act is amended:
(a) by inserting after subsection (1) the following subsection:“(1a) If:
(a) the Commissioner determines under Division 5 of Part VI that part of a lump sum benefit to which a spouse is entitled is attributable to an eligible child or eligible children or a partially dependent child or partially dependent children; and
(b) because of the child or children not being in the custody, care and control of the spouse, or for any other reason that the Commissioner thinks proper, the Commissioner is of the opinion that payment of that part, or a portion of that part, of the lump sum benefit should be made to a person other than the spouse;
the Commissioner may authorise payment of that part, or a portion of the part, to be made to the other person, and payment must be made to the other person accordingly.”;
(b) by omitting subsection (2) and substituting the following subsection:“(2) A payment of the part, and a payment of a portion of the part, of an instalment of pension or of a lump sum benefit that, under this section, is paid to a person other than the child to which that part or portion is attributable, must be applied for the maintenance, education or other benefit of the child.”.
“
(a) orphan pension or a lump sum benefit payable under Division 4 of Part VI; or
(b) a lump sum benefit payable under section 110tf.”.
“(1aa) For the purposes of subsection (1), an amount that is a productivity related benefit within the meaning of Part VIa is not to be treated as a transfer value if the productivity related benefit would be the whole of the transfer value.
“(1ab) If a transfer value, after becoming payable to or in respect of a person under a superannuation scheme, was paid into a preservation fund, the amount of the transfer value is taken, for the purposes of this Division, to be the sum of the amount of the transfer value and the amount of any interest accruing on that amount while paid into the preservation fund.”.
43. Section 128 of the Principal Act is amended:
(a) by adding at the end of subsection (2) the following word and paragraph:“; and (c) so much of the transferred amount as is equal to the sum of:
(i) the amount of any productivity related benefit within the meaning of Part VIa and interest on that amount; and
(ii) the amount of the person’s accumulated employer contributions (if any) included in a transfer value (if any) that was payable to the person under Division 3 of Part IX and interest on that amount;
must be paid by the Commissioner into the Superannuation Fund, and, for the purposes of this Act, the amount so paid is taken to be productivity contributions within the meaning of Part VIa.”;
(b) by omitting paragraph (6) (b) and substituting the following paragraph:“(b) the employer component of a transfer value payable to or in respect of a person is the part of that transfer value that was based upon contributions by an employer or employers of the person other than:
(i) an amount that was a productivity related benefit within the meaning of Part VIa; or
(ii) an amount that was the person’s accumulated employer contributions included in a transfer value that was payable under Division 3 of Part IX to the person.”.
“128aa. (1) Where:
(a) a person becomes an eligible employee by making an election under section 6a of the
Superannuation Act 1990 ; and(b) the person’s accumulated funded contributions are paid to the Commissioner under subsection 6a (4) of that Act;
the Commissioner must pay an amount equal to the person’s accumulated funded contributions into the Superannuation Fund.
“(2) There is to be added to the period that, apart from this subsection, would be the person’s period of contributory service, a period equal to:
(a) the period during which the person was a member of the Superannuation (1990) Scheme; or
(b) such lesser period as is determined by the Commissioner, in writing, having regard to any time during which the person was engaged in part-time employment or was on leave of absence without pay.
“(3) The Commissioner is to determine those parts of the amount so paid into the Superannuation Fund that, for the purposes of this Act, are to be regarded as:
(a) the person’s accumulated basic contributions; and
(b) the person’s accumulated supplementary contributions; and
(c) the person’s productivity contributions.”.
45. Section 131 of the Principal Act is amended:
(a) by omitting subparagraph (c) (ii) of the definition of “former eligible employee with benefits from previous employment” in subsection (4) and substituting the following subparagraph:“(ii) to whom, immediately before becoming an eligible employee, a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; and”;
(b) by omitting “invalidity pension” from subparagraph (c) (iii) of that definition in subsection (4) and substituting “that pension”.
46. (1) Section 133 of the Principal Act is amended:
(a) by omitting from subsection (1) “Minister may, by instrument under his hand” and substituting “Board may, by instrument”;
(b) by inserting after subsection (1) the following subsections:
“(1a) The Minister may, by instrument, formulate principles with respect to the making of declarations by the Board under subsection (1).
“(1b) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (1a).
“(1c) In considering whether to make a declaration under subsection (1), the Board must have regard to any such principles that are in force.”;
(c) by omitting from subsection (2) “the last preceding sub-section” and substituting “subsection (1)”;
(d) by omitting from subsection (3) “Minister” and substituting “Board”.
47. (1) Section 134 of the Principal Act is amended:
(a) by omitting from subsection (1) “Minister may, by instrument under his hand” and substituting “Board may, by instrument”;
(b) by inserting after subsection (1) the following subsections:
“(1a) The Minister may, by instrument, formulate principles with respect to the making of declarations by the Board under subsection (1).
“(1b) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (1a).
“(1c) In considering whether to make a declaration under subsection (1), the Board must have regard to any such principles that are in force.”;
(c) by omitting from subsection (3) “Minister” and substituting “Board”.
48. Section 136 of the Principal Act is amended:
(a) by inserting after paragraph (2) (e) the following paragraph:“(ea) if:
(i) a deferred benefit by way of invalidity pension is payable to the person under section 67 or 70 but a deferred benefit by way of a lump sum benefit is not so payable; and
(ii) productivity benefit became payable in respect of the person when he or she ceased to be an eligible employee;
the deferred benefit is to include a lump sum benefit equal to the person’s accumulated employer contributions;”;
(b) by inserting after paragraph (2b) (b) the following paragraph:“(ba) if:
(i) a deferred benefit by way of spouse’s pension is payable in respect of the person under section 82 or 85 but a deferred benefit by way of a lump sum benefit is not so payable; and
(ii) productivity benefit became payable in respect of the person when he or she ceased to be an eligible employee;
the deferred benefit is to include a lump sum benefit equal to the person’s accumulated employer contributions;”;
(c) by inserting after paragraph (2b) (r) the following paragraph:“(ra) if:
(i) a deferred benefit by way of orphan pension is payable in respect of the person under section 98 or 100 but a deferred benefit by way of a lump sum benefit is not so payable; and
(ii) productivity benefit became payable in respect of the person when he or she ceased to be an eligible employee;
the deferred benefit is to include a lump sum benefit
equal to the person’s accumulated employer contributions;”.
49. Section 139 of the Principal Act is amended:
(a) by omitting from paragraph (2) (a) all the words from and including “incapable (otherwise than temporarily)” to and including “considers relevant)” and substituting “totally and permanently incapacitated within the meaning of Part IVa”;
(b) by omitting from subparagraph (2) (a) (i) “so incapable” and substituting “so incapacitated”;
(c) by omitting from paragraph (3) (a) “incapable of performing the duties referred to in that paragraph” and substituting “totally and permanently incapacitated”.
50. (1) Section 139a of the Principal Act is amended:
(a) by omitting from subsection (1a) “Minister” and substituting “Board”;
(b) by inserting after subsection (1a) the following subsections:
“(1b) The Minister may, by instrument, formulate principles with respect to the giving of directions by the Board under subsection (1a).
“(1c) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (1b).
“(1d) In considering whether to give a direction under subsection (1a), the Board must have regard to any such principles that are in force.”.
“(ii) that invalidity or incapacity rendered the person totally and permanently incapacitated within the meaning of Part IVa;”.
53. (1) Section 145 of the Principal Act is amended:
(a) by omitting from subsection (11) “Minister may, by instrument under his hand” and substituting “Board may, by instrument”;
(b) by inserting after subsection (11) the following subsections:
“(11a) The Minister may, by instrument, formulate principles with respect to the making of declarations by the Board under subsection (11).
“(11b) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (11a).
“(11c) In considering whether to make a declaration under subsection (11), the Board must have regard to any such principles that are in force.”;
(c) by omitting from subsection (13) “Minister” and substituting “Board”.
Section 147 of the Principal Act is amended by omitting “(a), (c)” from paragraph (f) of the definition of “pension to which this Part applies” in subsection (1) and substituting “(a), (b), (c)”.
After section 153aaa of the Principal Act the following Part is inserted:
“153aa. (1) In this Part, unless the contrary intention appears:
(a) the giving by the Board of a direction under subsection 7 (2) or the refusal by the Board to give such a direction; or
(b) the giving by the Board of a direction under subsection 51 (1) or the refusal by the Board to give such a direction; or
(c) the giving by the Board of a certificate under subsection 54c (1) or the refusal by the Board to give such a certificate; or
(d) a decision made by the Board relating to the retirement of an eligible employee as provided by Part IVa including a decision relating to the making of pre-assessment payments; or
(e) the making by the Board of a declaration under subsection 133 (1) or the refusal by the Board to make such a declaration; or
(f) the making by the Board of a declaration under subsection 134 (1) or the refusal by the Board to make such a declaration; or
(g) the giving by the Board of a direction under subsection 139a (1a) or the refusal by the Board to give such a direction; or
(h) the making by the Board of a declaration under subsection 145 (11) or the refusal by the Board to make such a declaration; or
(i) a decision of the Board under section 153al.
“(2) Despite subsection 16 (2), 46 (2), 47 (2), 50 (2) or 53 (2) of the
“153ab. The Board must establish such number of Reconsideration Advisory Committees as the Board considers necessary.
“153ac. (1) A Committee comprises such number of persons as the Board determines.
“(2) The qualifications of each member are such as the Board determines.
“153ad. (1) The functions of a Committee are:
(a) to review any decision referred to it under this Part; and
(b) to make recommendations to the Board in relation to the decision.
“(2) When reviewing a decision, a Committee:
(a) must take into account any evidence relevant to the decision that is submitted to it; and
(b) may also take steps to obtain any other evidence that it considers necessary for a proper review of the decision.
“153ae. Subject to any directions given by the Board, a Committee may regulate its proceedings as the Committee thinks fit.
“153af. Any matter or thing done, or omitted to be done, in good faith by a member of a Committee in the performance of functions under this Part does not subject him or her to any action, liability, claim or demand.
“153ag. (1) A member of a Committee is to be paid such remuneration as is determined by the Remuneration Tribunal, but if no determination of that remuneration by the Tribunal is in operation, is to be paid such remuneration as is prescribed.
“(2) A member of a Committee is to be paid such allowances (if any) as are prescribed.
“(3) This section has effect subject to the
“153ah. (1) A person affected by a decision made by a delegate of the Board may apply to the Board for reconsideration of the decision.
“(2) An application may be:
(a) in writing addressed to the Board and setting out the particulars of the decision that the person wishes to be reconsidered; or
(b) in any other form that is acceptable to the Board.
“(3) An application made to the Board before the commencement of this section for the reconsideration of a decision made by a delegate of the Board under subsection 7 (2) is taken to have been duly made under this section.
“153aj. (1) Where the decision of the delegate was made after taking into consideration recommendations made by the members of a panel under subsection 54f (4), the Board must refer the decision to a panel consisting of such number of persons as the Board appoints to assist it in its reconsideration of the decision of the delegate.
“(2) The members of the panel must be persons of a kind mentioned in subsection 54f (2).
“(3) Subsections 54f (3) and (4) apply where the Board refers a decision under subsection (1) as if:
(a) the application for a reconsideration were a request for the approval of the retirement of the person to whom the delegate’s decision relates; and
(b) the period within which the members of the panel are required to make recommendations in writing to the Board under subsection 54f (4) were such period as is specified by the Board.
“153ak. (1) Subject to subsection (2), the Board must refer the decision to which an application relates to a Committee.
“(2) Where, under subsection 153aj (1), the Board is required to refer the decision to a panel of persons, the Board, after receiving the recommendations of the members of the panel, must refer the decision to a Committee together with a copy of those recommendations.
“(3) The Board may also, on its own motion, refer a decision of a delegate to a Committee.
“153al. (1) After taking into account, in relation to a decision referred to a Committee:
(a) the recommendations of the Committee; and
(b) any principles formulated by the Minister that were relevant to the decision; and
(c) any other matter that the Board considers relevant;
the Board must, by instrument setting out the reasons for so doing, affirm or vary the decision or set it aside and substitute another decision for it.
“(2) The Board must make available a copy of an instrument mentioned in subsection (1) to the applicant.
“153am. (1) A person affected by a decision made by the Board may apply to the Board for a reconsideration of that decision.
“(2) An application must:
(a) be in writing addressed to the Board; and
(b) set out the particulars of the decision that the person wishes to be reconsidered; and
(c) specify the grounds for reconsideration of those particulars.
“(3) An application made to the Board before the commencement of this section for the reconsideration of a decision made by the Board under subsection 7 (2) is taken to have been duly made under this section.
“153an. (1) Such fees as are prescribed are payable to the Board by a person who makes an application under section 153am.
“(2) Any fees received by the Board under subsection (1) are to be paid into the Consolidated Revenue Fund.
“(3) The regulations may make provision in relation to the refund of any fees paid under subsection (1).
“153ap. (1) A decision is to be reconsidered only if there is evidence relevant to the decision that was not previously taken into account by the Board in making the decision.
“(2) If an application is not supported by evidence in accordance with subsection (1), the Board must dismiss the application.
“(3) The dismissal of an application in respect of a decision does not preclude the applicant from subsequently submitting another application in respect of the decision.
“153aq. (1) Where a decision of the Board that is to be reconsidered was made after taking into consideration recommendations made by the members of a panel under subsection 54f (4), the Board must refer the decision to a panel consisting of such number of persons as the Board appoints to assist it in its reconsideration of the decision.
“(2) The members of the panel must be persons of a kind mentioned in subsection 54f (2).
“(3) Subsections 54f (3) and (4) apply where the Board refers a decision under subsection (1) as if:
(a) the application for a reconsideration were a request for the approval of the retirement of the person to whom the decision relates; and
(b) the period within which the members of the panel are required to make recommendations in writing to the Board under subsection 54f (4) were such period as is specified by the Board.
“153ar. (1) Subject to subsection (2), if the Board does not under section 153ap dismiss an application made under section 153am, the Board must refer the decision to which the application relates to a Committee.
“(2) Where, under subsection 153aq (1), the Board is required to refer the decision to a panel of persons, the Board, after receiving the recommendations of the members of the panel, must refer the decision to a Committee together with a copy of those recommendations.
“(3) The Board may also, on its own motion, refer any of its decisions to a Committee.
“153as. (1) After taking into account, in relation to a decision referred to a Committee:
(a) the recommendations of the Committee; and
(b) any principles formulated by the Minister that were relevant to the decision; and
(c) any other matter that the Board considers relevant;
the Board must, by instrument setting out the reasons for so doing, affirm or vary the decision or set it aside and substitute another decision for it.
“(2) The Board must make available a copy of an instrument mentioned in subsection (1) to the applicant.”.
56. Section 154 of the Principal Act is amended:
(a) by omitting from subsection (4) “he” and substituting “the Commissioner”;
(b) by omitting subsection (5) and substituting the following subsection:
“(5) Where the Commissioner confirms, revokes or varies a decision, the Commissioner must, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be.”.
57. Section 157 of the Principal Act is amended:
(a) by omitting from subsection (2a) “Where” and substituting “Subject to subsection (2b), where”;
(b) by inserting after subsection (2a) the following subsection:
“(2b) Subsection (2a) does not apply in respect of an election under section 110t.”.
“165. The Minister may, by signed instrument, delegate all or any of his or her powers under this Act or the regulations to:
(a) the Board; or
(b) a member of the Board; or
(c) the Commissioner; or
(d) a member of the staff assisting the Commissioner in the performance of his or her functions under this Act; or
(e) an officer of the Department.”.
“(10) Regulations made within a period of 12 months after the commencement of this subsection for the purposes of section 126, 180 or 183 may be expressed to have taken effect from and including a day not earlier than the day of that commencement.”.
“(2a) Subsection (2) does not apply in relation to a person who, on 30 June 1990 was, and until the date the person ceased to be an eligible employee or became entitled to partial invalidity pension, as the case requires, being a date after 31 March 1991, continued to be, an eligible employee.”.
“(2) For the purposes of this Part, the holder of a statutory office whose remuneration is paid by an authority or body is taken to be employed by that authority or body.”.
Section 238 of the Principal Act is amended by omitting from subsection (1) “any benefits under this Act” and substituting “benefits under this Act other than benefits under Part VI, subsection 110s (2) or section 111”.
After section 242 of the Principal Act the following Part is inserted:
“PART XIII a —TRANSFERS TO AUTHORISED SUPERANNUATION SCHEMES
“242a. For the purposes of this Part, the holder of a statutory office whose remuneration is paid by an authority or body is taken to be employed by that authority or body.
“242b. The Minister may, in writing, declare a superannuation scheme that provides benefits for persons who are employed by, or are members of the staff of, an authority or body to be an authorised superannuation scheme for the purposes of this Part.
“242c. (1) Subject to subsection (2), where a person who:
(a) is an eligible employee; and
(b) is employed by, or is a member of the staff of, an authority or body;
ceases, within such period as is determined by the Minister in relation to the person, to be an eligible employee because the person becomes a member of a superannuation scheme declared by the Minister under section 242b to be an authorised superannuation scheme for the purposes of this Part, deferred benefits are applicable in respect of the person.
“(2) Subsection (1) does not apply in relation to a person who, when ceasing to be an eligible employee, had completed a period of
eligible employment as mentioned in subsection 132 (1) of less than one year.
“(3) Where, under subsection (1), deferred benefits are applicable in relation to a person, the person is not entitled to be paid benefits under this Act other than benefits under Part VI, subsection 110s (2) or section 111.
“(4) A determination of the Minister for the purposes of subsection (1) is a disallowable instrument.
“242d. (1) The deferred benefits applicable in respect of a person under section 242c are deferred benefits of the kind mentioned in subsection 136 (1) and, subject to section 242e, this Act (other than section 139 and subsection 141 (1)) applies in respect of those benefits as if they had become applicable in relation to the person under Division 3 of Part IX.
“(2) This Act in its application in respect of deferred benefits applicable in respect of a person under section 242c has effect as if the reference in subsections 143 (1) and (3) to paragraph 139 (2) (a) were a reference to paragraph 242e (1) (c).
“242e. (1) Subject to subsection (2), deferred benefits that are applicable in respect of a person under section 242c become payable on the day immediately after the earliest of the following dates:
(a) if the person, by notice in writing given to the Commissioner, selects a date for the commencement of the payment of the deferred benefits, being a date not earlier than:
(i) the date on which the person attains the age that would have been the person’s minimum retiring age for the purposes of this Act if the person had not ceased to be an eligible employee and had continued to occupy the position held by the person immediately before so ceasing; and
(ii) the date on which the notice is given;
the date so selected;
(b) the date on which the person attains the age of 65 years;
(c) the date the Commissioner is satisfied that the person has, by reason of invalidity or physical or mental incapacity, become totally and permanently incapacitated within the meaning of Part IVa;
(d) the date of the person’s death.
“(2) If, on a date worked out under paragraph (1) (a) or (b), the person has not ceased to be employed by, or to be a member of the
staff of, the authority or body, that paragraph applies as if the date mentioned in the paragraph were the date on which the person so ceased to be employed by, or to be a member of the staff of, the authority or body, as the case may be.”.
64. Section 244 of the Principal Act is amended:
(a) by omitting from subsection (1) “a provision (other than paragraph 6 (2) (a)) of the
Superannuation Act 1990 ” and substituting “or under theSuperannuation Act 1990 (other than by paragraph 6 (2) (a) of that Act)”;(b) by omitting subsection (2) and substituting the following subsections:
“(2) An eligible employee may not make an election and declaration under subsection (1) during any period when the eligible employee is absent from duty on leave of absence without pay.
“(2a) An eligible employee, after the termination of a period mentioned in subsection (2), may only make an election and declaration under subsection (1) if that period commenced before 1 July 1991.
“(2b) An eligible employee may not make an election and declaration under subsection (1) during any period when the eligible employee:
(a) is a person to whom Part IV of the
Public Service Act 1922 , or theOfficers’ Rights Declaration Act 1928 , applies other than such a person who during that period is:(i) employed by the Commonwealth otherwise than under the
Public Service Act 1922 ; or(ii) employed by an approved authority for the purposes of the
Superannuation Act 1990 ; or(iii) the holder of a statutory office; or
(b) is an approved person for the purposes of Part IV of the
Commonwealth Legal Aid Act 1977. “(2c) Subject to subsection (2d), an eligible employee:
(a) mentioned in paragraph (2b) (a) who ceases to be a person to whom Part IV of the
Public Service Act 1922 applies; or(b) who ceases to be an approved person for the purposes of Part IV of the
Commonwealth Legal Aid Act 1977 ;may only make an election and declaration under subsection (1) after so ceasing if the eligible employee became before 1 July 1991:
(c) a person to whom Part IV of the
Public Service Act 1922 applies; or(d) an approved person for the purposes of Part IV of the
Commonwealth Legal Aid Act 1977 ;as the case may be.
“(2d) Subsection (2c) does not apply to a person to whom Part IV of the
Public Service Act 1922 applies if the person immediately before becoming such a person was a person to whom theOfficers’ Rights Declaration Act 1928 applied.“(2e) A person who, immediately before becoming an eligible employee, was a person to whom invalidity pension was, or but for a suspension of payment would have been, payable under the
Superannuation Act 1976 may only make an election and declaration under subsection (1) if the person became entitled to that pension before 1 July 1991.”;
(c) by omitting paragraph (3) (a) and substituting the following paragraph:“(a) if the eligible employee was, until 31 March 1991 or any later day, precluded by or under the
Superannuation Act 1990 (other than by paragraph 6 (2) (a) of that Act) from being a member of the Superannuation (1990) Scheme—after the period of 3 months commencing on the day on which the eligible employee ceased to be so precluded; or”;
(d) by omitting from paragraph (3) (c) “1 April 1991” and substituting “31 March 1991”;
(e) by inserting after paragraph (3) (c) the following paragraph:
“(ca) if the eligible employee is precluded under subsection (2b) from making the election and declaration during a period that ends after 31 March 1991—after the period of 3 months commencing immediately after the termination of that period; or”.
“
“(ba) is a person:
(i) to whom invalidity pension, or a deferred benefit by way of invalidity pension, is, or but for a suspension of payment would have been, payable to him or her under the
Superannuation Act 1976 ; or(ii) to whom a pension of a kind mentioned in section 64a or 65 of the
Superannuation Act 1922 as in force immediately before the repeal of that section, or a deferred benefit by way of a pension payable for the reason mentioned in subsection 119za (1) of that Act, is, or but for a suspension of payment would have been, payable to him or her; or(iii) to whom deferred benefits are applicable under the
Superannuation Act 1976 ; or(iv) to whom deferred benefits are applicable under the
Superannuation Act 1922 and who has not become an eligible employee for the purposes of theSuperannuation Act 1976 ; or(v) who is a re-employed former contributor with preserved rights for the purposes of the
Superannuation Act 1976 and who has not become an eligible employee for the purposes of that Act;other than such a person who is a casual employee within the meaning of the Rules or who became a member of the Superannuation Scheme before the commencement of section 68 of the
Superannuation Legislation Amendment Act 1991 and has continued to be such a member; or”.
“6a. (1) This section applies to a person who:
(a) is a member of the Superannuation Scheme; and
(b) became such a member before the commencement of section 68 of the
Superannuation Legislation Amendment Act 1991 ; and
(c) is a person, other than a casual employee within the meaning of the Rules, mentioned in subparagraph 6 (2) (ba) (i), (ii), (iii), (iv) or (v).
“(2) A person to whom this section applies may in writing addressed to the Board before 1 October 1991 or such later date as the Board allows having regard to all the circumstances of the particular case:
(a) declare that he or she wishes to become an eligible employee for the purposes of the
Superannuation Act 1976 ; and
(b) elect to cease to be a member of the Superannuation Scheme.
“(3) A person who makes an election under subsection (2) is taken to have ceased to be a member of the Superannuation Scheme at the end of the day on which the election is made.
“(4) The Board must, as soon as practicable after a person makes an election under this section, pay to the Commissioner the person’s accumulated funded contributions.”.
“11. Where a person is a director of a company or other body corporate incorporated under a law of the Commonwealth or of a State or Territory (being a company or other body that is an approved authority):
(a) if the person is a full-time director—the person is, unless the Minister in writing otherwise determines, for the purposes of this Act, a person employed by the company or other body; or
(b) if the person is not a full-time director—the person is, for the purposes of this Act, a person employed by the company or other body only if the Minister, in writing, so determines.”.
“(1a) The Board may only give a certificate in respect of a member under subsection (1) if the Board has approved the invalidity retirement of the member under Division 1 of Part 12 of the Rules.”.
72. Section 19 of the Principal Act is amended:
(a) by omitting from paragraph (1) (b) “any other authority” and substituting “an authority (other than an approved authority)”;
(b) by adding at the end of subsection (1) the following word and paragraph:“; and (c) an authority or body (other than a State authority) whose employees include a person or persons mentioned in paragraph 6 (1) (h) or (j).”;
(c) by omitting from subparagraph (2) (a) (ii) “and” and substituting “or”;
(d) by adding at the end of subparagraph (2) (a) (ii) the following subparagraph:
“(iii) in the case of an authority or body mentioned in paragraph (1) (c)—employed by that authority or body; and”.
“28a. The Board may, by signed instrument, delegate all or any of its powers under this Act or the regulations to any of the following:
(a) a member of the Board;
(b) the Commissioner;
(c) a member of the staff assisting the Commissioner in the performance of his or her functions under this Act.”.
74. After Part 8 of the Principal Act the following Part is inserted:
“33a. For the purposes of this Part, the holder of a statutory office whose remuneration is paid by an authority or body is taken to be employed by that authority or body.
“33b. In this Division, unless the contrary intention appears:
(a) choses in action; and
(b) rights, interests and claims of every kind in or to property, whether arising under or because of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing;
“33c. (1) The Minister may approve, in writing, for the purposes of this Division, a superannuation scheme that provides benefits for persons who are employed by, or are members of the staff of, an authority or body.
“(2) Where the Minister gives an approval under subsection (1), the Minister is to determine, in writing, the period within which, for the purposes of this Division, a person who is a member of the Superannuation Scheme and employed by, or a member of the staff of, the authority or body may become a member of the superannuation scheme as so approved.
“33d. The Board must, at such times as the Minister determines, transfer to the person or body administering an approved superannuation scheme:
(a) such assets of the Fund (including investment assets of the Fund) as are determined by the Minister to be assets that fairly and equitably represent the accumulated funded contributions of those persons who:
(i) have become members of the approved superannuation scheme within such period as, in relation to each of those persons, has been determined under subsection 33c (2); and
(ii) immediately before becoming such members, were members of the Superannuation Scheme; and
(b) such liabilities (if any) (including investment liabilities of the Fund) as are determined by the Minister to be liabilities relating to those assets.
“33e. (1) There must be paid to the person or body administering an approved superannuation scheme, at such times as the Minister determines, such amounts (if any) as are determined by the Minister having regard to:
(a) the amount of the payments (if any) made under section 19 by the authority or body that established the scheme in respect of the persons mentioned in paragraph 33d (a); and
(b) the amount of the accumulated member contributions (within the meaning of the Rules) of those persons; and
(c) the method of calculating transfer values under Division 2 of Part 8 of the Rules; and
(d) any relevant actuarial advice obtained by the Minister; and
(e) any other matters that the Minister considers relevant.
“(2) Payments under subsection (1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.
“33f. No tax or charge is payable under any law of the Commonwealth (other than the
“33g. (1) The Minister may, in writing, declare a superannuation scheme that provides benefits for persons who are employed by, or are members of the staff of, an authority or body to be an authorised superannuation scheme for the purposes of Part 6 of the Rules.
“(2) Where the Minister makes a declaration under subsection (1), the Minister is to determine, in writing, the period within which, for the purposes of Part 6 of the Rules, a person who is a member of the Superannuation Scheme and employed by, or a member of the staff of, the authority or body may become a member of the superannuation scheme as so authorised.”.
75. Section 35 of the Principal Act is amended:
(a) by omitting paragraph (2) (b) and substituting the following paragraph:“(b) a declared authority:
(i) whose staff includes or included members; or
(ii) whose employees include or included members;”;
(b) by omitting from subsection (4) the definition of “declared authority” and substituting the following definition:“
‘declared authority’ means:(a) an authority (other than an approved authority) or a body:
(i) whose staff consists of persons appointed or employed under the
Public Service Act 1922 ; and(ii) that has been declared, in writing, by the Minister to be an authority or body to which this subsection applies; or
(b) an authority or body (other than a State authority) whose employees include a person or persons mentioned in paragraph 6 (1) (h) or (j).”.
“or (d) proposes to become, or is, employed by an authority or body (other than a State authority) whose employees include a person or persons mentioned in paragraph 6 (1) (h) or (j);”.
77. Section 43 of the Principal Act is amended:(a) by omitting paragraph (1) (c) and substituting the following paragraphs:
“(c) a member of the staff assisting the Commissioner in the performance of those duties; or
(d) a delegate of the Board in the performance of his or her functions under the Act, the regulations or the Trust Deed; or
(e) a person who is a member of a Reconsideration Advisory Committee established under the Trust Deed in the performance of his or her functions under the Trust Deed;”;
(b) by adding at the end the following subsection:“(3) Any money becoming payable by the Board in respect of an action, liability, claim or demand is to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.”.
“(h) a determination under section 11;
(i) a determination under subsection 33c (2);
(j) a determination under section 33d;
(k) a determination under section 33e;
(l) a determination under subsection 33g (2).”.
“(3a) Where the Minister amends or varies a determination under subsection (3) by:
(a) omitting the reference in the determination to an applicable law or eligible body; or
(b) by adding a reference to an applicable law or an eligible body;
but makes no other change to the determination, the Minister is not required by subsection (3) to serve a copy of the guidelines as so amended or varied on an employer of persons not affected by the amendment or variation.”.
82. Section 3 of the Principal Act is amended:
(a) by omitting “the Superannuation Act” from paragraph (d) of the definition of “qualified employee” in subsection (1) and substituting “the Superannuation Act or the new Superannuation Act”;
(b) by inserting in subsection (1) the following definitions:
“
‘Board’ has the same meaning as in the new Superannuation Act;
‘Fund’ has the same meaning as in the new Superannuation Act;”.
“4ea. Where an interim arrangement employee becomes a scheme employee, his or her designated employer must pay to the Board:
(a) a contribution in respect of the employee equal to the amount of the interim benefit that would have been payable in respect of the employee if he or she had ceased to be a qualified employee on the day immediately before the day on which he or she became a scheme employee; and
(b) where that amount is not paid on the day on which he or she becomes a scheme employee—a contribution in respect of the employee of interest, fixed under section 4g in relation to the Fund, on the amount in respect of each day in the period commencing on the day on which the amount should have been paid and ending on the day immediately before the day when the amount is paid.”.
“(2) For the purpose of section 4ea, the interest fixed under this section in relation to the Fund on a day is the interest calculated in a way determined by the Minister.”.
1. No. 31, 1976, as amended. For previous amendments, see No. 51, 1976; No. 80, 1977; Nos. 17, 134, 169 and 170, 1978; Nos. 52 and 155, 1979; No. 177, 1980; No. 92, 1981; No. 92, 1983; Nos. 63 and 165, 1984; Nos. 80, 93, 151 and 153, 1986; No. 141, 1987; Nos. 38 and 130, 1988; Nos. 71, 97 and 125, 1989; and No. 40, 1990.
No. 38, 1990.
No. 39, 1990.
4. No. 70, 1988, as amended. For previous amendments, see No. 130, 1988; and No. 40, 1990.
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House of Representatives on 29 May 1991
Senate on 6 June 1991
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