1. This Act may be cited as the Superannuation Legislation Amendment Act 1991.

Commencement

3. In this Part, “Principal Act” means the Superannuation 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 Superannuation Act 1990;”;section 6a of the

(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:

(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:

(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 the Occupational Superannuation Standards Act 1987;”.

5. Section 4b of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph:

“(a) the person:

(i) was a contributor under the superseded Act; or

(ii) has ceased to be an eligible employee; and”.

Retirement on ground of invalidity

7. Section 13a of the Principal Act is amended:

(a) by omitting “or the superseded Act” from subparagraph (a) (i);

“(iii) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or”.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:

“(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:

“(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”.

10. Section 16 of the Principal Act is amended by inserting after subsection (4) the following subsections:

“(4a) Subsection (4) does not apply after 31 March 1991 in relation to a person:

“(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).”.

11. Section 16aa of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

12. Section 17 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:

“(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

(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)”.

14. Section 27r of the Principal Act is amended 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.”.

15. Section 47 of the Principal Act is amended:

Leave of absence without pay

17. Section 54d of the Principal Act is amended by inserting the following definitions:

“ ‘administering authority’ has the same meaning as in the Commonwealth Employees’ Rehabilitation and Compensation Act 1988;

‘employee’, in relation to an administering authority, means a person who under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 is an employee of the administering authority;”.

18. Section 54g of the Principal Act is repealed and the following section is substituted:

Board to seek recommendations

“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 Commonwealth Employees’ Rehabilitation and Compensation Act 1988, the Board must, subject to subsection 54h (1):

19. Section 54h of the Principal Act is amended by inserting in subsection (1) “or an administering authority, as the case may be,” after “Comcare”.

20. Section 54k of the Principal Act is amended by inserting after paragraph (a) the following paragraph:

“(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”.

Repeal of Division

22. Section 55 of the Principal Act is amended by adding at the end the following subsection:

“(4) Payment of benefit to which a person becomes entitled under this section may be postponed under Part VIb.”.

23. Section 59 of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

25. Section 64 of the Principal Act is amended by adding at the end the following subsection:

“(2) If a pension to which this Division applies becomes, or is about to become, payable on a date worked out under the Commissioner, an election to commute that pension into a lump sum benefit payable to him or her.”.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

Reduction of invalidity pensions because of earnings

Reduction of invalidity pensions because of pre-assessment payments

“73b. Where:

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.”.

28. Section 93 of the Principal Act is amended by omitting paragraph (1) (b) and substituting the following paragraph:

“(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.”.

29. Division 5 of Part VI of the Principal Act is repealed and the following Division is substituted:

“Division 5—Miscellaneous

Eligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse

“109ab. (1) Where a person (in this section called the ‘deceased person’) who is an eligible employee or a retirement pensioner dies and is survived by one spouse and by an eligible child or eligible children, or a partially dependent child or partially dependent children, not in the custody, care and control of the spouse, benefit is only payable under Division 1, 2, 3 or 3a in accordance with this section.

“(2) The amount of spouse’s pension payable to the spouse must not exceed:

“(3) The applicable percentage mentioned in subsection (2) is:

“(4) The Commissioner must, having regard to:

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:

“(6) The applicable percentage mentioned in subsection (5) is:

“(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:

“(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.

Eligible employee or retirement pensioner survived by more than one spouse

“110. (1) Where a person (in this section called the ‘deceased person’) who is an eligible employee or a retirement pensioner dies and is survived by more than one spouse, benefit is only payable under Division 1, 2, 3 or 3a in accordance with this section.

“(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:

(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

“(5) The applicable percentage mentioned in subsection (4) is:

“(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:

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:

“(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:

“(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:

then:

“(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.

Spouse ’ s pension to be increased in certain circumstances

“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

the spouse’s pension is increased under this section.

“(2) The increase in the annual rate of spouse’s pension is:

whichever is less.

“(3) Where, at any time, the spouse’s pension is increased under this section, the applicable percentage is:

30. After section 110e of the Principal Act the following section is inserted:

Interest payable to employer in certain circumstances

“110ea. Where:

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.”.

31. Section 110k of the Principal Act is, amended by inserting in paragraph (1) (b) “and the amount of any interest accruing on that benefit while preserved in the fund” after “benefit” (second occurring).

32. Section 110l of the Principal Act is amended by inserting in paragraph (1) (b) “and the amount of any interest accruing on that benefit while preserved in the fund” after “benefit” (second occurring).

33. Section 110p of the Principal Act is amended by adding at the end the following subsection:

“(2) Payment of a productivity benefit that becomes payable in respect of a person under this section may be postponed under Part VIb.”.

34. Section 110q of the Principal Act is amended by omitting subsection (1) and substituting the following subsections:

“(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:

(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

(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:

and must be published in the Gazette”.

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:

(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:

the benefit:

(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.”;

(h) by omitting subsection (9).

36. After section 110s of the Principal Act the following Part is inserted:

“ PART VI b —POSTPONEMENT OF BENEFITS OF RETIREMENT PENSIONERS

Circumstances in which benefits may be postponed

“110t. (1) A person who is, or is about to become, a person who:

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.

Effect of election

“110ta (1) If a person makes an election under section 110t, payment to the person of:

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.

Date on which postponed benefits become payable

“110tb. A benefit, the payment of which has been postponed under this Part, becomes payable on the earlier of the following dates:

Rates of pension after postponement of payment

“110tc. (1) For the purposes of calculating the rate or amount of a benefit payable on a date worked out under section 110tb:

“(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:

Application of Parts VI and VI a in relation to postponed benefits

“110td. Where a person who, under this Part, has postponed the payment of benefits dies before the benefits become payable:

37. Section 111 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

“(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 the Commissioner determines.”.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

38. Section 112 of the Principal Act is amended:

“(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.”.

Instalments of pension

40. Section 114 of the Principal Act is amended:

(a) by inserting after subsection (1) the following subsection:

“(1a) If:

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.”.

41. Section 115 of the Principal Act is amended by omitting from subsection (4) the definition of “orphan benefit” and substituting the following definition:

“ ‘orphan benefit’ means:

42. Section 127 of the Principal Act is amended by inserting after subsection (1) the following subsections:

“(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.”.

44. After section 128 of the Principal Act the following section is inserted:

Payment to Commissioner under section 6a of the Superannuation Act 1990

“128aa. (1) Where:

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:

“(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:

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”.

Public employment

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:

Election for transfer value by persons in relation to whom deferred benefits are applicable

51. Section 140 of the Principal Act is amended by inserting in paragraph (3) (a) “less any part of that amount so paid that is an amount of a kind mentioned in paragraph 110q (1) (c) or (d)” after “the Commissioner”.

52. Section 141 of the Principal Act is amended by omitting subparagraph (1) (c) (ii) and substituting the following subparagraph:

“(ii) that invalidity or incapacity rendered the person totally and permanently incapacitated within the meaning of Part IVa;”.

Special provisions affecting certain contributors under certain superannuation schemes

56. Section 154 of the Principal Act is amended:

“(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:

“(2b) Subsection (2a) does not apply in respect of an election under section 110t.”.

59. Section 168 of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

60. Section 184 of the Principal Act is amended by inserting after subsection (2) the following subsection:

“(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.”.

61. Section 237 of the Principal Act is amended by adding at the end the following subsection:

“(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.”.

Loss of entitlement to benefits —eligible employee transferring to an approved superannuation scheme

“ PART XIII a —TRANSFERS TO AUTHORISED SUPERANNUATION SCHEMES

Holders of statutory offices

“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.

Authorisation of superannuation schemes

“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.

Deferred benefits —eligible employee transferring to an authorised superannuation scheme

“242c. (1) Subject to subsection (2), where a person who:

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.

Deferred benefits under this Part

“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).

Circumstances in which deferred benefits become payable

“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;

“(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:

“(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 Public Service Act 1922, or the Officers’ Rights Declaration Act 1928, applies other than such a person who during that period is:Part IV of the

(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 Commonwealth Legal Aid Act 1977.Part IV of the

“(2c) Subject to subsection (2d), an eligible employee:

may only make an election and declaration under subsection (1) after so ceasing if the eligible employee became before 1 July 1991:

as the case may be.

“(2d) Subsection (2c) does not apply to a person to whom Public Service Act 1922 applies if the person immediately before becoming such a person was a person to whom the Officers’ Rights Declaration Act 1928 applied.Part IV of the

“(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”;

“(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”.

65. Section 246 of the Principal Act is amended by omitting “any benefits under this Act” and substituting “benefits under this Act other than benefits under Part VI, subsection 110s (2) or section 111”.

66. In this Part, “Principal Act” means the Superannuation Act 1990².

67. Section 3 of the Principal Act is amended by inserting the following definition:

“ ‘State authority’ means an authority or body, whether corporate or not, established by a State, or by or under a law of a State;”.

68. Section 6 of the Principal Act is amended by inserting after paragraph (2) (b) the following paragraph:

“(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 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; orsection 64a or 65 of the

(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 the Superannuation 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 Superannuation Legislation Amendment Act 1991 and has continued to be such a member; or”.section 68 of the

69. After section 6 of the Principal Act the following section is inserted:

Election by certain persons to join scheme under the Superannuation Act 1976

“6a. (1) This section applies to a person who:

(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:

“(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.”.

70. Section 11 of the Principal Act is repealed and the following section is substituted:

Director of company etc.

“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):

71. Section 13 of the Principal Act is amended by inserting after subsection (1) the following subsection:

“(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).”;

“(iii) in the case of an authority or body mentioned in paragraph (1) (c)—employed by that authority or body; and”.

73. After section 28 of the Principal Act the following section is inserted:

Delegation by Board

“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:

74. After Part 8 of the Principal Act the following Part is inserted:

“ PART 8 a —TRANSFERS TO APPROVED AND AUTHORISED SUPERANNUATION SCHEMES

“ Division 1 — Preliminary

Statutory office holder

“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.

“ Division 2 — Approved superannuation schemes

Interpretation

“33b. In this Division, unless the contrary intention appears:

‘approved superannuation scheme’ means a superannuation scheme approved by the Minister under section 33c;

‘assets’ means property of any kind and, without limiting the generality of the foregoing, includes:

(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;

investment assets of the Fund’ means the assets of the Fund or of the Board arising out of, or otherwise connected with, the exercise or proposed exercise by the Board of its power to invest money of the Fund;

‘investment liabilities of the Fund’ means liabilities of the Fund or of the Board arising out of, or otherwise connected with, the exercise or proposed exercise by the Board of its power to invest money of the Fund;

‘liabilities’ means liabilities of every kind and, without limiting the generality of the foregoing, includes obligations of every kind, whether arising under or because of an instrument or otherwise, and whether liquidated or unliquidated, certain or contingent, accrued or accruing.

Approval of superannuation schemes

“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.

Transfer of assets etc. to approved superannuation schemes

“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.

Payments from Consolidated Revenue Fund

“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:

“(2) Payments under subsection (1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.

Exemption from tax etc.

“33f. No tax or charge is payable under any law of the Commonwealth (other than the Income Tax Assessment Act 1936) or any law of a State or of a Territory in respect of a transfer of assets or liabilities under section 33d.

“Division 3—Authorised superannuation schemes

Authorisation of superannuation schemes for the purposes of Part 6 of the Rules

“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).”.

76. Section 36 of the Principal Act is amended by adding at the end of paragraph (c) the following word and paragraph:

“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

(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.”.

78. Section 45 of the Principal Act is amended by adding at the end of subsection (1) the following paragraphs:

“(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).”.

79. In this Part, “Principal Act” means the Superannuation Benefits (Supervisory Mechanisms) Act 1990³.

80. Section 6 of the Principal Act is amended by inserting after subsection (3) the following subsection:

“(3a) Where the Minister amends or varies a determination under subsection (3) by:

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.”.

81. In this Part, “Principal Act” means the Superannuation (Productivity Benefit) Act 1988⁴.

82. Section 3 of the Principal Act is amended:

“ ‘Board’ has the same meaning as in the new Superannuation Act;

‘Fund’ has the same meaning as in the new Superannuation Act;”.

83. After section 4e of the Principal Act the following section is inserted:

Payments of equivalent benefit to Board

“4ea. Where an interim arrangement employee becomes a scheme employee, his or her designated employer must pay to the Board:

84. Section 4g of the Principal Act is amended by inserting at the end the following subsection:

“(2) For the purpose of the Minister.”.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

NOTES

[Minister’s second reading speech made in—

House of Representatives on 29 May 1991

Senate on 6 June 1991]