Part 3Contributions, pensions and
benefits
18Deductions from salaries of
members
From each instalment of salary payable to a
member, commencing with the first instalment paid after the commencement of
the Parliamentary Contributory Superannuation (Amendment) Act
1979, there shall be deducted an amount equal to 12½
per cent of the gross amount of the instalment before any
deductions.
s 18: Subst 1979 No
132, Sch 1 (4).
18AAcceptance of
contributions
(1)
Despite any other provision of this Act,
deductions from a member’s salary are not required to be made during any
period specified by the trustees for which the trustees determine that they
must not accept contributions in respect of the member.
(2)
The trustees may make such a determination only
if they are of the opinion that it is necessary to do so in order to be
consistent with a relevant Commonwealth superannuation
standard.
(3)
A period in respect of which deductions are not
made under this section is not to be taken into account when determining the
member’s superannuation benefit under section 19.
s 18A: Ins 1993 No
111, Sch 7. Am 1997 No 42, Sch 1.2 [7].
18BElection to cease salary
deductions on reaching age 65
(1)
A member may elect, by notice in writing served
on the trustees, to cease to have deductions from salary instalments made
under section 18 if:
(a)
the member is 65 years or more of age,
and
(b)
the member has been entitled to salary in respect
of an aggregate period of 20 years or more (including any period before the
commencement of this section).
(2)
A member may not revoke an election made under
this section.
(3)
An election made under this section takes effect
when it is approved by the trustees.
(4)
On the election taking effect, deductions from
the member’s salary are not required to be made under this
Act.
(5)
An election under this section continues to have
effect if, after ceasing to be a member, the person again becomes a
member.
(6)
A benefit payable under this Act to or in respect
of a member who makes an election under this section is to be calculated as if
the member ceased to be entitled to receive salary on the day the election
took effect.
(7)
A benefit is not payable under this Act to or in
respect of a member who makes an election under this section until it is
payable under another provision of this Act.
s 18B: Ins 2005 No
110, Sch 1 [2].
19Members’ superannuation
benefit
(1)
Subject to this Act, a person who has been
entitled to salary (either after or partly before and partly after the
commencement of this Act) in respect of an aggregate period of 7 years or more
shall, on ceasing to be a member and to be entitled to salary, be entitled to
be paid out of the Fund until death an annual pension at the rate ascertained
in accordance with the formula:
where:
A is an amount calculated at the
rate equal to the aggregate of 48.8 per cent of current basic salary and, in
respect of each month during which the person was entitled to receive salary
as a member exceeding in the aggregate 7 years, 0.2 per cent of current basic
salary, or the rate of 80 per cent of current basic salary, whichever is the
lesser,
B is the total salary received by
that person, and
C is the total basic salary in
respect of that person.
(1A), (1B)
(2)
For the purpose of calculating any instalment of
pension payable under subsection (1) at any particular time, current
basic salary means:
(a)
where the person entitled to the instalment last
served as a member in the Legislative Council—the salary payable at that
particular time to a member of the Legislative Council (other than a Minister
of the Crown or a recognised office holder within the meaning of the Parliamentary
Remuneration Tribunal Act 1975 and other than a recognised
office holder within the meaning of the Parliamentary
Remuneration Act 1989) and expressed at an annual rate,
or
(b)
where the person entitled to the instalment last
served as a member in the Legislative Assembly—the salary payable at
that particular time to a member of the Legislative Assembly (other than a
Minister of the Crown or a recognised office holder within the meaning of the
Parliamentary Remuneration Tribunal Act
1975 and other than a recognised office holder within the
meaning of the Parliamentary Remuneration Act
1989) and expressed at an annual
rate.
(3)
For the purpose of subsection (1), the total
salary received by a person shall not include any salary which that person
received in respect of any period before the first day of January, one
thousand nine hundred and fifty-two.
(4)
For the purpose of subsection (1), the total
basic salary of a person who is entitled to a pension and who last served in
the Legislative Council is the sum of the following amounts:
(a)
the total amount (if any) that, during any period
(not being a period before 1 January 1952) during which that person was
entitled to salary, was payable from time to time as salary or allowances to a
member of the Legislative Council under section 17G of the Constitution Act 1902 other than:
(i)
any expense allowance or living away from home
allowance, or
(ii)
any amount payable as an allowance to that member
only in his or her capacity as the person recognised as the principal
representative of the members of the Legislative Council not being supporters
of the Government or as salary to that member only in his or her capacity as
the President, or Chairman of Committees, of the Legislative Council,
and
(b)
the total amount (if any) that, during any period
during which that person was entitled to salary, was payable from time to time
as remuneration under the Parliamentary Remuneration Tribunal
Act 1975 to a member of the Legislative Council (other
than a Minister of the Crown or a recognised office holder within the meaning
of that Act), excluding any portion thereof specified under section 7A of that
Act as being in the nature of an allowance for expenses,
and
(c)
the total amount (if any) that, during any period
during which that person was entitled to salary, was payable from time to time
as remuneration by way of basic salary or additional salary under the Parliamentary Remuneration Act 1989 to a
member of the Legislative Council (other than a recognised office holder
within the meaning of that Act).
(4A)
For the purpose of subsection (1), the total
basic salary of a person who is entitled to a pension and who last served in
the Legislative Assembly is the sum of the following amounts:
(a)
the total amount (if any) that, during any period
(not being a period before 1 January 1952) during which that person was
entitled to salary, was payable from time to time as salary or allowances to a
member of the Legislative Assembly under section 28 of the Constitution Act 1902, other than any
electoral allowance, special expenses allowance or additional allowance,
and
(b)
the total amount (if any) that, during any period
during which that person was entitled to salary, was payable from time to time
as remuneration under the Parliamentary Remuneration Tribunal
Act 1975 to a member of the Legislative Assembly (other
than a Minister of the Crown or a recognised office holder within the meaning
of that Act), excluding any portion thereof specified under section 7A of that
Act as being in the nature of an allowance for electoral or other expenses,
and
(c)
the total amount (if any) that, during any period
during which that person was entitled to salary, was payable from time to time
as remuneration by way of basic salary or additional salary under the Parliamentary Remuneration Act 1989 to a
member of the Legislative Assembly (other than a recognised office holder
within the meaning of that Act).
(5)
Notwithstanding anything contained in this
section, other than this subsection, where the annual pension of a former
member who last served in the Legislative Council would, but for this
subsection, be greater than his or her entitlement to the annual pension
ascertained on the basis of this subsection, he or she shall be entitled to an
annual pension at the rate to which he or she would have been entitled:
(a)
had he or she been a member of the Legislative
Assembly during the whole of the period he or she was a member of the
Legislative Council,
(b)
had he or she held an office in the Legislative
Assembly of the like nature to that which he or she held in the Legislative
Council (the office of Vice-President of the Executive Council being regarded
for the purpose of this paragraph as the office of a Minister) for any period
during which he or she held such an office in the Legislative Council,
and
(c)
had his or her total salary included, if he or
she held at any time the office of Leader or Deputy Leader of the Government
in the Legislative Council, any salary which he or she was entitled to receive
as the holder of that office.
(6)
If the trustees have made a determination under
section 26D in relation to a benefit provided by this section, the amount of
the benefit is reduced by the amount specified in the trustees’
determination.
(7)
(8)
Where by the operation of section 13A of the
Constitution Act 1902 the seat of a
member becomes vacant, the member shall not be entitled to a pension under
this Act but shall be entitled to have refunded to him or her the amounts
deducted under this Act or the former Act from salary paid to him or her less
any amount previously refunded to him or her under this subsection or under
the former Act and the amount of any reduction resulting from a determination
under section 26D.
(9)
Notwithstanding anything contained in this Part,
other than this subsection, where a former member has served in both the
Legislative Council and the Legislative Assembly and the trustees are
satisfied that the annual pension (in this subsection referred to as basic
annual pension) of that former member is less than the
annual pension to which he or she would have been entitled under this Part,
other than this subsection, had that former member not served in the
Legislative Council, the trustees may in their absolute discretion direct
payment to that former member of an annual pension, additional to his or her
basic annual pension, of such amount as the trustees think fit, but so that
the aggregate of the amount of the basic annual pension and the amount of the
additional annual pension under this subsection does not exceed the annual
pension that would have been payable to him or her under this Part had that
former member not served in the Legislative Council.
s 19: Am 1975 No 67,
secs 12 (a), 13 (b); 1979 No 6, sec 3; 1979 No 132, Sch 1 (5); 1981 No 86, Sch
1 (2), 1989 No 160, Sch 3 (2); 1991 No 95, Sch 3 (18); 1997 No 149, Sch 1.2
[5] [6].
19AAPerson ceasing to be a member
while criminal proceedings pending
(1)
This section applies in respect of a person who
ceases to be a member while proceedings for a serious offence are pending
against the person.
(2)
Any entitlement of such a person as a former
member to receive a pension under this Part is suspended while proceedings for
the serious offence are pending against the former
member.
(3)
If the finalisation of the proceedings results in
the person not being convicted of any serious offence, the suspension of
pension entitlement is lifted and the person’s entitlement to a pension
is reinstated.
(4)
If the finalisation of the proceedings results in
the person being convicted of a serious offence:
(a)
the person ceases to have any entitlement to
receive a pension under this Part, and
(b)
the person’s net contributions are to be
refunded to him or her.
(5)
If proceedings for a serious offence cease to be
pending before the proceedings are finalised, the suspension of pension
entitlement is lifted and the person’s entitlement to a pension is
reinstated.
(6)
If a person’s entitlement to a pension is
reinstated following the lifting of a suspension:
(a)
the reinstatement has effect from immediately
before the suspension began and as if the entitlement had not been suspended,
and
(b)
an election may be made under section 20 (2)
within 3 months after the entitlement is
reinstated.
(7)
While a former member’s entitlement to a
pension is suspended under this section, the trustees may authorise payment to
the former member from the Fund of an advance on the refund of the former
member’s net contributions under subsection (4) (b). However, if the
suspension of the former member’s entitlement to a pension is lifted,
any such advance is to be repaid or recouped by the trustees by deduction from
any pension or other payment due to the former member on the lifting of the
suspension.
(8)
Criminal proceedings are not considered finalised for the purposes of this
section until the end of the appeal period and until any appeal against
conviction or acquittal, lodged within the appeal period, has been determined
or has lapsed or been withdrawn. The appeal
period is the period within which an appeal may be lodged,
but does not include any extension of a period that a court may
grant.
(9)
This section extends to proceedings taken outside
New South Wales.
(10)
In this section:
net
contributions means the amounts deducted under this Act or
the former Act from salary paid to the person less any amount previously
refunded to him or her (under this section or otherwise) and less the amount
of any reduction resulting from a determination under section
26D.
serious
offence means:
(a)
an offence committed in New South Wales that is
punishable by imprisonment for life or for a term of 5 years or more or an
offence committed elsewhere than in New South Wales that, if committed in New
South Wales, would be an offence so punishable, or
(b)
an infamous crime.
s 19AA: Ins 2006 No
93, Sch 1 [1].
19AVariation of certain annual
pensions
(1)
In this section:
former
member means a person who:
(a)
last served as a member of the Legislative
Council, and
(b)
ceased to be such a member on or before 6
November 1978.
prescribed time means:
(a)
1 January 1980, and
(b)
any time after 1 January 1980 at which the salary
payable to a member of the Legislative Assembly (other than a Minister of the
Crown or a recognised office holder within the meaning of the Parliamentary
Remuneration Tribunal Act 1975 and other than a recognised
office holder within the meaning of the Parliamentary
Remuneration Act 1989) is
varied.
(2)
Notwithstanding anything in section 19 or 23,
where:
(a)
a former member is entitled to an annual pension
under section 19, or
(b)
the spouse or de facto partner of a former member
is entitled to an annual pension under section 23,
the amount of the annual pension payable from the Fund
to that former member or to that spouse or de facto partner, as the case may
be, immediately before a prescribed time is varied at and from that prescribed
time in the same manner and by the same percentage as the variation at that
prescribed time of the salary payable to a member of the Legislative Assembly
other than a Minister of the Crown or a recognised office holder within the
meaning of the Parliamentary Remuneration Tribunal Act
1975 and other than a recognised office holder within the
meaning of the Parliamentary Remuneration Act
1989.
(3)
The amount of the annual pension payable from the
Fund to a person to whom subsection (2) applies may be varied only in
accordance with that subsection.
s 19A: Ins 1980 No
18, sec 3. Subst 1981 No 86, Sch 1 (3). Am 1989 No 160, Sch 3 (3); 1996 No 92,
Sch 1.4 (2).
19BDeferral of certain
pensions
(1)
Despite any other provision of this Act, a
pension, or part of a pension, payable under section 19 to a former member is
payable by the trustees to the former member only if:
(a)
the former member has attained the age of 55
years, or
(b)
a pension is payable under section 19D or
19E.
(2)
(3)
In this section, and sections 19C–19F, a
pension, or part of a pension, that is not payable because of this section is
a deferred
pension.
(4)
This section applies to a former member who first
becomes a member after the date of assent to the Parliamentary Contributory
Superannuation Amendment Act 1999.
s 19B: Ins 1999 No
89, Sch 1 [5]. Am 2005 No 110, Sch 1 [3].
19CCalculation of deferred
pension
(1)
The value of a deferred pension when it first
becomes payable is to be calculated in accordance with section 19 as at the
date the former member ceased to be a member, except that the current basic
salary for the purpose of that section is to be calculated as at the date the
deferred pension becomes payable under section 19B.
(2)
If a former member in respect of whom a pension
has been deferred under section 19B dies:
(a)
section 23 (2) applies in respect of the spouse
or de facto partner of the former member in the same way as it applies in
respect of the spouse or de facto partner of a member who has been entitled to
salary for an aggregate period of 7 years or more, and
(b)
section 23B applies in respect of a dependent
child of the former member in the same way as it applies in respect of a
dependent child of a deceased member or former
member.
ss 19C–19F: Ins
1999 No 89, Sch 1 [5].
19DPayment of deferred pension in
cases of hardship
(1)
The trustees may, on the written application of a
former member, pay the former member the former member’s deferred
pension on the ground of the former member’s financial
hardship.
(2)
In determining whether a pension is payable to a
former member under this section, the trustees must have regard to the
following matters:
(a)
the financial circumstances of the former member
and his or her capacity to meet reasonable and immediate financial
commitments,
(b)
any other matters the trustees think relevant and
appropriate.
ss 19C–19F: Ins
1999 No 89, Sch 1 [5].
19EPayment on grounds of
ill-health or incapacity
(1)
The trustees may, on the written application of a
former member, pay the former member the former member’s deferred
pension on the ground of the former member’s ill-health or physical or
mental incapacity.
(2)
The trustees must not determine that a pension is
payable under this section unless the trustees are satisfied that the former
member would, if still a member, be incapable of performing the duties of a
member because of ill-health or physical or mental
incapacity.
(3)
For the purposes of satisfying the trustees that
a pension is payable under this section, the former member must provide such
medical and other evidence or information as the trustees
require.
(4)
In particular, the medical evidence must include
a certificate or certificates acceptable to the trustees, signed by 2 medical
practitioners, certifying that the former member would, if still a member, be
incapable of performing the duties of a member due to ill-health or physical
or mental incapacity.
ss 19C–19F: Ins
1999 No 89, Sch 1 [5].
19FApplications for payment of
deferred pensions
(1)
A former member may, at any time, lodge with the
trustees an application to vary or revoke an application under section 19D or
19E.
(2)
An application under section 19D or 19E is to be
in a form approved by the trustees for the purposes of this
section.
ss 19C–19F: Ins
1999 No 89, Sch 1 [5].
20Right to convert pension to
lump sum entitlement
(1)
In this section:
entitled to a pension means that a
pension is payable by the trustees under this Part.
former
member does not include a person who is entitled to a
pension under section 22.
(2)
Despite anything in this Act, except subsection
(2A), the following former members may elect, by notice in writing served on
the trustees, to convert the whole or part of the former members’
pension entitlements to lump sum entitlements determined in accordance with
subsection (3):
(a)
a former member who is entitled to a pension
under this Part but who is not a former member referred to in paragraph (b) or
(c),
(b)
a former member who becomes, on ceasing to be a
person whose right to a pension is suspended under section 25 (2), entitled to
a pension under this Part,
(c)
a former member who is entitled to a pension as a
result of a direction given by the trustees under section 26
(2).
(2A)
Notwithstanding subsection (2), a former member
referred to in subsection (2) (b) or (c) is not entitled to make an election
under subsection (2) if he or she has in respect of any previous event had an
opportunity to make an election under subsection (2) since he or she last
ceased to be a member.
(2B)
For the purposes of subsection (2A), where any
event has occurred which entitled a former member to make an election under
subsection (2) within the period of three months after the occurrence of that
event, as referred to in subsection (11), that former member shall be deemed
to have had, in respect of that event, an opportunity to make an election
under subsection (2) if:
(a)
his or her right to receive a pension under this
Part was not suspended under section 25 (2) or section 26 (1) within the
period of three months after the occurrence of that event,
or
(b)
having made an election under subsection (2)
within the period of three months after the occurrence of that event, that
election was not, by subsection (9), deemed never to have been
made.
(3)
A lump sum payment referred to in subsection (2)
shall be the amount that is ten times the amount of the annual pension
entitlement in respect of which the election is made.
(3A)
For the purposes of subsection (2), the maximum
amount of pension entitlement that may be the subject of an election under
that subsection by a former member referred to in subsection (2) (c), is the
lesser of the following amounts:
(a)
the pension entitlement of the former member, if
the entitlement had not been suspended under section 26
(1),
(b)
the annual pension entitlement directed to be
paid to the former member under section 26 (2) as at the date from which a
pension is first payable to the former member under section 26
(2),
(c)
the annual pension entitlement of the former
member as at the date immediately before the election under this section is
received by the trustees.
(4)
A former member who makes an election under
subsection (2) shall be entitled to receive from the trustees a lump sum
payment calculated under subsection (3) and any pension payable under this
Part to that former member in respect of any period which commenced on or
after the day on which the election is received by the trustees shall (except
a pension payable pursuant to a pension entitlement arising by virtue of a
direction given under section 26 (2) the amount of which has been reduced by
reason of his or her having received that lump sum) be reduced in accordance
with section 21B.
(5)
Notwithstanding any other provision of this
section, any lump sum payment under this section shall first be applied by the
trustees in or towards paying into the Fund the outstanding amount of any
repayment under section 24 by the former member who made the election under
this section in respect of that lump sum.
(6)
Notwithstanding anything in this section, where
the trustees are of the opinion that a former member:
(a)
who has become entitled to a pension under this
Part, and
(b)
who has, under subsection (2), made an election
in respect of a prescribed part of his or her pension
entitlement,
would, within twelve months after his or her so becoming
entitled, be likely to have his or her pension cease or suspended under
section 25, the operation of that election shall, subject to subsection (7),
be deferred for such period not exceeding twelve months as the trustees may
determine.
(7)
The trustees may at any time reduce the period of
deferment of an election under subsection (6).
(8)
During the period of deferment of his or her
election, a former member is entitled to payment of his or her annual pension
entitlement under this Part.
(9)
If, during the period of deferment of his or her
election, the pension of a former member ceases or is suspended under section
25, that election shall be deemed never to have been
made.
(10)
Where, during the period of deferment of his or
her election, the pension of a former member does not cease or is not
suspended under section 25, the lump sum that would have been payable under
subsection (3) but for the deferment shall become payable to him or her less
payments made to him or her pursuant to subsection (8) in respect of that part
of his or her annual pension entitlement that was the subject of his or her
election.
(11)
An election under subsection (2) must be
made:
(a)
in the case of a former member referred to in
subsection (2) (a)—not later than 3 months after the former member
becomes entitled to a pension under this Part,
(b)
in the case of a former member referred to in
subsection (2) (b)—not later than 3 months after the former member
ceases to be a person whose right to a pension is suspended under section 25
(2),
(c)
in the case of a former member referred to in
subsection (2) (c)—not later than 3 months after the giving of the
direction under section 26 (2) that resulted in the former member first
becoming entitled to a pension under section 26 (2) and that was given after
the former member’s pension was last suspended under section 26
(1).
s 20: Am 1972 No 71,
sec 2 (1) (a); 1979 No 132, Sch 1 (6); 1981 No 86, Sch 1 (4); 1989 No 159, Sch
1 (1); 1991 No 95, Sch 3 (19); 1999 No 89, Sch 1 [6]–[13]; 2005 No 110,
Sch 1 [4] [5].
21Provisions applicable when the
person becomes a member after receiving a pension as a former
member
Notwithstanding anything in this Act where a
person who on ceasing to be a member converted part of his or her pension
entitlement to a lump sum payment under section 20 and again becomes a member
and that person again becomes entitled to a pension under this Part, the
amount of the annual pension payable to him or her shall be reduced in
accordance with section 21B.
s 21: Am 1989 No 159,
Sch 1 (2).
21AInterpretation of annual
pension entitlement for purposes of secs 20, 21 and 25
For the purposes of sections 20, 21 and
25:
(a)
the total annual pension to which a former member
referred to in subsection (9) of section 19 is entitled,
or
(b)
the annual pension for the time being directed to
be paid to a person under subsection (2) of section
26,
shall be deemed to be the annual pension entitlement of
that former member or that person, as the case may be.
s 21A: Ins 1972 No
71, sec 2 (1) (b).
21BCalculation of pensions
following conversion to lump sum
(1)
This section applies where the amount of pension
payable to a person is to be reduced, under section 20 (4) or 21, because of
an election under section 20 to convert part of a pension entitlement to a
lump sum.
(2)
The annual pension is to be reduced:
(a)
in the case of a person who, immediately before
the commencement of the Parliamentary Contributory Superannuation (Amendment) Act
1989, was a member or in receipt of a pension under this
Part—by the amount of annual pension in respect of which the election
was made, or
(b)
in any other case—by an amount calculated
in accordance with the following formula:
where:
R represents the amount of the
reduction.
C represents the amount of annual
pension in respect of which the election concerned was made.
E represents the annual pension
entitlement immediately before the election concerned was made.
F represents the amount that would
be the current annual pension entitlement of the former member if he or she
had not made the election concerned.
(3)
In the event that any person:
(a)
by becoming a member on a second or subsequent
occasion, has become for a second or subsequent time entitled to a pension
under this Part, and
(b)
has made an election or elections under section
20,
the person’s pension is to be reduced in
accordance with subsection (2) in respect of the first and any subsequent
election made.
(4)
In the case of a person to whom subsection (3)
applies who makes more than one election:
(a)
successive reductions of pension are to be
calculated using the formula given in subsection (2) (a), in the case of a
member referred to in subsection (2) (a), or subsection (2) (b), in the case
of a member referred to in subsection (2) (b), and
(b)
for the purposes of any such calculation, the
values to be assigned to the symbols E and F in that formula are to reflect
any reduction of annual pension entitlement resulting from previous
calculations.
s 21B: Ins 1989 No
159, Sch 1 (3). Am 1993 No 111, Sch 7.
22Pension on retirement on
grounds of ill-health
(1)
Where a member produces to the trustees such
medical and other evidence as satisfies them that he or she has ceased to be a
member because he or she has been rendered incapable of performing the duties
of a member by reason of ill-health or physical or mental incapacity, he or
she shall if he or she is not entitled to a pension under this Part other than
this section, be entitled to a pension calculated in accordance with the
formula specified in subsection (1) of section 19.
(1A)
The medical evidence referred to in subsection
(1) must include a certificate or certificates acceptable to the trustees,
signed by 2 medical practitioners, certifying that the member is incapable of
performing the duties of a member due to ill-health or physical or mental
incapacity.
(2)
Notwithstanding the provisions of subsection (1),
a person who, after the commencement of this Act, becomes, on any occasion, a
member otherwise than by reason of his or her re-election at a general
election immediately before which he or she was a member shall not be entitled
to a pension under that subsection upon his or her next ceasing after that
occasion to be a member unless between that occasion and his or her so next
ceasing to be a member he or she has furnished to the trustees a certificate
approved by the trustees of a medical practitioner so approved certifying that
a medical practitioner authorised by the trustees for the purposes of this
subsection has reported to the medical practitioner so approved that the
medical practitioner so authorised has examined that person in accordance with
the requirements of the trustees and that the medical practitioner so approved
is satisfied that that person is not suffering from any physical or mental
condition that is likely to render him or her incapable, before the expiration
of 7 years from the date of the certificate, of performing the duties of a
member.
(3)
If the trustees have made a determination under
section 26D in relation to a benefit provided by this section, the amount of
the benefit is reduced by the amount specified in the trustees’
determination.
s 22: Am 1972 No 71,
sec 2 (1) (c); 1979 No 132, Sch 1 (7); 1981 No 86, Sch 1 (5); 1991 No 95, Sch
3 (3) (20); 1997 No 149, Sch 1.2 [7].
22AContributors not entitled to
pension
(1)
In this section:
refund of
contributions, in relation to a person who ceases to be a
member, means a refund of that person’s contributions and any
contributions made by the person under the former Act less any amount (not
being an amount which that person has contracted to repay to the Fund pursuant
to section 24) previously paid to the person under this Act or under the
former Act as a refund of contributions.
supplementary benefit, in relation
to a person who ceases to be a member, means the amount that is two and
one-third times:
(a)
in the case of a person who has been entitled to
salary for an aggregate period of less than 7 years—the amount of the
refund of contributions in relation to that person, or
(b)
in any other case—the amount that would be
the amount of the refund of contributions in relation to that person if the
last 7 years during which the person was entitled to salary was the only
period during which the person was entitled to
salary.
(2)
A person who ceases to be a member after the date
of assent to the Parliamentary Contributory Superannuation (Amendment) Act
1981, otherwise than by reason of death or by reason of
the operation of section 13A of the Constitution Act
1902, and who is not entitled to a pension under this Part
shall be entitled to a refund of contributions and:
(a)
where the person ceases to be a member
involuntarily within the meaning of subsection (3)—payment of the
supplementary benefit, or
(b)
in any other case—payment of one-half of
the supplementary benefit.
(3)
For the purposes of subsection (2), a person
ceases to be a member involuntarily if:
(a)
notwithstanding anything in this subsection, the
person has attained the age of 60 years at the time when the person ceases to
be a member,
(b)
the person ceases to be a member by reason of
resignation for reasons which to the trustees appear to be good and
sufficient, or
(c)
the person ceases to be a member by reason of the
termination, either by dissolution or expiry, of a Legislative Assembly and
the person:
(i)
does not become a candidate at the general
election next following that termination by reason of not securing the support
of the political party to which the person belonged immediately before so
ceasing to be a member,
(ii)
becomes a candidate but is defeated at that
general election, or
(iii)
does not stand for election at that general
election for reasons which to the trustees appear to be good and
sufficient.
(4)
Where:
(a)
a person ceases to be a member after the date of
assent to the Parliamentary Contributory Superannuation (Amendment) Act
1981 by reason of death,
(b)
that person is not survived by a widow or widower
or, if that person died on or after the commencement of Schedule 1.4 [3] to
the Superannuation Legislation Amendment Act
1996, by a spouse or de facto partner,
and
(c)
no pension is payable under section 23B in
respect of a dependent child of that person,
the personal representative of that person shall be
entitled to the amount, if any, by which the aggregate of the refund of
contributions and payment of the supplementary benefit in relation to that
person exceeds the aggregate of any instalments of pension and any other
benefit (except a refund of contributions and any interest thereon) paid or
payable under this Part in relation to that person.
(5)
Notwithstanding any other provision of this
section, any payment under this section shall first be applied by the trustees
in or towards paying into the Fund the outstanding amount of any repayment
under section 24 by the person to whom or in respect of whom that payment is
required to be made.
(6)
If the trustees have made a determination under
section 26D in relation to a benefit provided by this section, the amount of
the benefit is reduced by the amount specified in the trustees’
determination.
s 22A: Ins 1979 No
132, Sch 1 (8). Subst 1981 No 86, Sch 1 (6). Am 1996 No 92, Sch 1.4 (3); 1997
No 149, Sch 1.2 [8].
22BCompulsory preservation of
benefits
(1)
The trustees must, when a lump sum becomes
payable under this Act, preserve all or so much of the lump sum as is required
to be preserved so as to be consistent with a relevant Commonwealth
superannuation standard.
(2)
The amount of the lump sum that must be preserved
under this section in respect of a former member is the amount determined by
the trustees, after obtaining actuarial advice.
(3)
The amount of a benefit that must be preserved
under this section is to be preserved in the Fund together with interest from
the member’s exit date to the date of payment at a rate determined by
the trustees.
(4)
The trustees may establish and maintain within
the Fund such accounts and reserves as, in the opinion of the trustees, are
necessary or convenient for the administration of this
section.
(5)
The trustees may, from time to time, adjust any
account or reserve established under this section by:
(a)
deducting amounts for the trustees’
administration costs in respect of the preserved benefit,
and
(b)
adjusting it for interest at a rate determined by
the trustees, having regard to the income of the Fund and such other matters
as the trustees consider relevant.
s 22B: Ins 1993 No
111, Sch 7. Am 1995 No 99, Sch 1; 1996 No 92, Sch 1.4 (4); 1997 No 42, Sch 1.2
[8]–[10]; 1997 No 149, Sch 1.2 [9]. Subst 1999 No 89, Sch 1
[14].
22BAPayment of compulsorily
preserved benefit
(1)
The whole or part of a benefit preserved under
section 22B is payable by the trustees in the circumstances in which the whole
or part of a benefit may be paid under a relevant Commonwealth superannuation
standard.
(2)
The whole or part of a benefit preserved under
section 22B must be paid by the trustees, if it is required to be paid under a
relevant Commonwealth superannuation standard.
(3)
The benefit is payable:
(a)
unless the former member has died—to the
former member, or
(b)
if the former member has died and is survived by
a spouse or de facto partner—to the surviving spouse or de facto
partner, or
(c)
if the former member has died and is not survived
by a spouse or de facto partner—to the personal representatives of the
former member or such other persons as the trustees
direct.
(4)
Nothing in this section affects payment of a
benefit under section 28A or 28B.
(5)
Without limiting subsection (1) or (2), the whole
or part of a benefit preserved under section 22B may, at any time, on the
election of the former member in respect of whom it is preserved, be paid in
one or more of the following ways:
(a)
to a regulated superannuation
fund,
(b)
to an approved deposit fund,
(c)
to an RSA,
(d)
to a life insurance company or a registered
organisation, for the purchase of a deferred annuity, if the conditions set
out in subsection (6) are satisfied.
(6)
A deferred annuity may be purchased if it is
issued by a life insurance company or a registered organisation for the
benefit of the person or for the benefit of the dependants of the person in
the event of the death of the person and:
(a)
the annuity cannot be surrendered or assigned
before the person is aged 55 years, and
(b)
the annuity does not provide for the payment of
amounts except in the following circumstances:
(i)
the person retires from the workforce after
reaching 55 years,
(ii)
the person retires from the workforce before
reaching 55 years on the ground of permanent incapacity or
invalidity,
(iii)
the person dies,
(iv)
in such other circumstances as are approved by
the trustees.
(7)
In this section:
approved
deposit fund has the same meaning as in the Superannuation
Industry (Supervision) Act 1993 of the
Commonwealth.
dependant has the same meaning as in
the Superannuation Industry (Supervision) Act
1993 of the Commonwealth.
life
insurance company has the same meaning as in the Superannuation
Industry (Supervision) Act 1993 of the
Commonwealth.
registered organisation has the same
meaning as in the Superannuation Industry (Supervision) Act
1993 of the Commonwealth.
regulated
superannuation fund has the same meaning as in the Superannuation
Industry (Supervision) Act 1993 of the
Commonwealth.
RSA has the same meaning as in the
Retirement Savings Accounts Act 1997 of
the Commonwealth.
s 22BA: Ins 1999 No
89, Sch 1 [14].
22C
s 22C: Ins 1997 No
149, Sch 1.2 [10]. Rep 2002 No 110, Sch 4 [11].
23Pension for spouses or de
facto partners
(1)
On the death of a former member who immediately
before his or her death was receiving, or was entitled to receive, a pension
under this Part, the spouse or de facto partner (not being a person who became
the spouse or de facto partner of the former member after the former member
became entitled to that pension) of the former member shall be entitled to an
annual pension at the rate of:
(a)
three-quarters of the pension that would have
been payable from time to time to the former member but for his or her death
or if the former member, pursuant to section 20, had converted part of his or
her pension entitlement to a lump sum payment, three-quarters of the pension
that would have been payable to the former member but for his or her death and
if the former member had not so converted part of his or her pension
entitlement, or
(b)
forty-five per cent of current basic
salary,
according to whichever rate of pension calculated under
paragraph (a) or (b) would have been greater at the date of the former
member’s death.
(1A)
On the death of a former member who, immediately
before his or her death on or after the commencement of this subsection, was
receiving or was entitled to receive a pension under this Part, an eligible
spouse or de facto partner of the former member is entitled:
(a)
if the former member and the eligible spouse or
de facto partner had been married or living in the relationship for 3 years or
more immediately before the death—to an annual pension calculated in
accordance with subsection (1), or
(b)
if the former member and the eligible spouse or
de facto partner had been married or living in the relationship for less than
3 years immediately before the death—to an annual pension calculated in
accordance with subsection (1), but reduced on a pro rata basis according to
the proportion that the period of the marriage or relationship bears to 3
years.
(2)
On the death of a member who has been entitled to
salary for an aggregate period of 7 years or more, the spouse or de facto
partner of the member shall be entitled to an annual pension at the rate
of:
(a)
three-quarters of the pension that would have
been payable from time to time to the member but for his or her death if the
member had ceased to be a member on the date of his or her death and been
entitled to a pension under section 19 (1), or
(b)
forty-five per cent of current basic
salary,
according to whichever rate of pension calculated under
paragraph (a) or (b) would have been the greater at the date of the
member’s death.
(3)
On the death of a member who has been entitled to
salary for an aggregate period of less than 7 years, the spouse or de facto
partner of the member shall be entitled to an annual pension at the rate of
forty-five per cent of current basic salary.
(3A)
A pension to which the spouse or de facto partner
of a former member or of a member is entitled under this section shall cease
on the death of that spouse or de facto partner.
(4)
For the purposes of subsections (1), (2) and (3),
current
basic salary means:
(a)
where the member who has died last served in the
Legislative Council—the salary payable from time to time to a member of
the Legislative Council (other than a Minister of the Crown or a recognised
office holder within the meaning of the Parliamentary Remuneration Tribunal
Act 1975 and other than a recognised office holder within
the meaning of the Parliamentary Remuneration Act
1989) and expressed at an annual rate,
or
(b)
where the member who has died last served in the
Legislative Assembly—the salary payable from time to time to a member of
the Legislative Assembly (other than a Minister of the Crown or a recognised
office holder within the meaning of the Parliamentary Remuneration Tribunal
Act 1975 and other than a recognised office holder within
the meaning of the Parliamentary Remuneration Act
1989) and expressed at an annual
rate.
(4A)
For the purposes of subsection (1) a former
member shall be deemed to have been entitled to receive a pension under this
Part at any time if he or she would, but for the provisions of section 25 (2)
or 26 (1), have been entitled to receive a pension under this Part at that
time.
(5)
For the purposes of subsection (1A):
eligible
spouse or de facto partner of a former member means a
person:
(a)
who became the spouse or de facto partner of the
former member after the former member became entitled to a pension,
and
(b)
who has or had in his or her marriage or
relationship with the former member a child, being:
(i)
a child of the eligible spouse or de facto
partner and the former member who was, in the opinion of the trustees, wholly
or substantially dependent on the former member at any time during the
marriage or relationship, or
(ii)
a child of the former member who was conceived
before and born alive after the death of the former
member.
(6)
(7)
Where a spouse or de facto partner would, but for
the provisions of this subsection, be entitled under this section to more than
one pension, that spouse or de facto partner shall, subject to this Act, be
entitled to the pension which is the higher or highest, or the equal higher or
highest, of those pensions.
(8)
Where but for this subsection a person entitled
to a pension under this section by reason of being the spouse or de facto
partner of a former member becomes entitled to a pension under section 19 in
respect of service as a member, that person shall, subject to this Act, only
be entitled to receive such one of those pensions as that person elects, by
notice in writing served on the trustees within one month after becoming
entitled to a pension as a former member, to receive.
(9)
Notwithstanding anything contained in this Part,
other than this subsection, where a former member has served in both the
Legislative Council and the Legislative Assembly and the trustees are
satisfied that the annual pension (in this subsection referred to as basic
annual pension) of the spouse or de facto partner of that
former member is less than the annual pension to which that spouse or de facto
partner would have been entitled under this Part, other than this subsection,
had that former member not served in the Legislative Council, the trustees may
in their absolute discretion direct payment to that spouse or de facto partner
of an annual pension, additional to her or his basic annual pension, of such
amount as the trustees think fit, but so that the aggregate of the amount of
the basic annual pension and the amount of the additional annual pension under
this subsection does not exceed the annual pension that would have been
payable to that spouse or de facto partner under this Part had that former
member not served in the Legislative Council.
(10)
Where a member dies before the commencement of
the Parliamentary Contributory Superannuation (Amendment) Act
1979, or a former member who had ceased to be a member
before that commencement dies before the commencement of Schedule 1.4 [5] to
the Superannuation Legislation Amendment Act
1996:
(a)
a pension is not payable under this section to
the widower of the member or former member, and
(b)
the pension payable to the widow of the member or
former member is the pension to which she was entitled under this section, as
in force immediately before the commencement of the Parliamentary Contributory
Superannuation (Amendment) Act
1979.
(11)
Where a former member who had ceased to be a
member before the commencement of the Parliamentary Contributory
Superannuation (Amendment) Act 1979 dies on or after the
commencement of Schedule 1.4 [5] to the Superannuation Legislation Amendment
Act 1996:
(a)
a pension is not payable under the preceding
provisions of this section to the spouse or de facto partner of the former
member, but
(b)
a pension is payable to the spouse or de facto
partner if the spouse or de facto partner became the spouse or de facto
partner of the former member before the former member became entitled to a
pension, being the pension to which a widow of the former member was or would
have been entitled under this section, as in force immediately before the
commencement of the Parliamentary Contributory Superannuation (Amendment) Act
1979.
(12)
If the trustees have made a determination under
section 26D in relation to a benefit provided by subsection (1) (paragraph (a)
excepted), (2) or (3), the amount of the benefit is reduced by the amount
specified in the trustees’ determination.
s 23: Am 1972 No 71,
sec 2 (1) (d); 1975 No 67, secs 12 (b), 13 (c); 1979 No 132, Sch 1 (9); 1981
No 86, Sch 1 (7); 1989 No 160, Sch 3 (4); 1991 No 95, Sch 3 (4) (21), 1996 No
92, Sch 1.4 (5)–(13); 1997 No 149, Sch 1.2 [11]; 2002 No 110, Sch 4 [12]
[13]; 2005 No 110, Sch 1 [6].
23ARight of certain spouses or de
facto partners to convert part of pension entitlement to lump sum
entitlement
(1)
In this section, pensioner means a spouse or de facto
partner who is, after the commencement of the Parliamentary Contributory
Superannuation (Amendment) Act 1979, entitled to a pension
under section 19C (2) (a) or 23 (2) or, where that pension is suspended under
section 26, entitled to a pension under section 26 (2).
(2)
The provisions of this Part apply to and in
respect of a pensioner in the same way as they apply to and in respect of a
former member.
(3)
For the purposes of subsection (2), a reference
in section 20 to a former member ceasing to be a member shall be construed as
a reference to a pensioner becoming entitled to a
pension.
s 23A: Ins 1979 No
132, Sch 1 (10). Am 1989 No 159, Sch 1 (4); 1996 No 92, Sch 1.4 (14); 1999 No
89, Sch 1 [15].
23BPension for
children
(1)
In this section:
child means a child:
(a)
who has not attained the age of 18 years,
or
(b)
who has attained the age of 18 years but has not
attained the age of 25 years and who is receiving full-time education from a
school, college or university approved by the
trustees.
current
basic salary means:
(a)
in relation to a deceased member or former member
who last served as a member in the Legislative Council—the salary
payable from time to time to a member of the Legislative Council (other than a
Minister of the Crown or a recognised office holder within the meaning of the
Parliamentary Remuneration Tribunal Act
1975 and other than a recognised office holder within the
meaning of the Parliamentary Remuneration Act
1989) and expressed at an annual rate,
or
(b)
in relation to a deceased member or former member
who last served as a member in the Legislative Assembly—the salary
payable from time to time to a member of the Legislative Assembly (other than
a Minister of the Crown or a recognised office holder within the meaning of
the Parliamentary Remuneration Tribunal Act
1975 and other than a recognised office holder within the
meaning of the Parliamentary Remuneration Act
1989) and expressed at an annual
rate.
dependent
child of a deceased member or former member means:
(a)
a child of a deceased member or former member,
or
(b)
a child of a surviving spouse or de facto
partner, or any former spouse or de facto partner, of the deceased member or
former member,
being:
(c)
a child who was, in the opinion of the trustees,
wholly or substantially dependent on the deceased member immediately before
his or her death or, as the case may be, wholly or substantially dependent on
the deceased former member immediately before he or she last ceased to be a
member, or
(d)
a child of the deceased member who was conceived
before but born after his or her death or, as the case may be, a child of the
deceased former member who was conceived before but born after he or she last
ceased to be a member.
(2)
On the death of:
(a)
a member, or
(b)
a former member who immediately before his or her
death was receiving, or was entitled to receive, a pension under this
Part,
there shall be payable from the Fund in respect of each
dependent child of the deceased member or former member an annual pension at
the rate of:
(c)
where the deceased member or former member is not
survived by a spouse or de facto partner—10 per cent of current basic
salary,
(d)
subject to paragraph (e), where the deceased
member or former member is survived by a spouse or de facto partner—5
per cent of current basic salary, or
(e)
where the deceased member or former member is
survived by a spouse or de facto partner but that spouse or de facto partner
dies—10 per cent of current basic salary.
(3)
A pension payable under this section in respect
of a dependent child shall cease on his or her death or on the day he or she
ceases to be a child.
(4)
For the purposes of subsection (2), a former
member shall be deemed to have been entitled to receive a pension under this
Part at any time if he or she would, but for the provisions of section 25 (2)
or 26 (1), have been entitled to receive a pension under this Part at that
time.
(5)
A pension payable under this section in respect
of a dependent child of a deceased member or former member continues to be
payable notwithstanding that the surviving spouse or de facto partner, if any,
of the deceased member or former member remarries.
(6)
A pension payable under this section in respect
of a dependent child of a deceased member or former member shall be paid
to:
(a)
the surviving spouse or de facto partner, if any,
of the deceased member or former member,
(b)
the guardian of the dependent
child,
(c)
the dependent child, or
(d)
some other person,
as the trustees in their discretion
direct.
(7)
A pension is not payable under this section in
respect of a dependent child of a deceased member or former member if:
(a)
in the case of a deceased member—he or she
died before the date of assent to the Parliamentary Contributory
Superannuation (Amendment) Act 1981,
or
(b)
in the case of a deceased former member—he
or she last ceased to be a member before that date.
s 23B: Ins 1981 No
86, Sch 1 (8). Am 1989 No 160, Sch 3 (5); 1996 No 92, Sch 1.4
(15).
24Repayments where person again
becomes member
Where a person has received under this Act or the
former Act an amount, being a refund of contributions (with or without
interest) or a payment of the whole or a part of a supplementary benefit under
section 22A, or both, and that person again becomes a member, any part of the
period during which the person was entitled to salary before the person became
entitled to that amount shall not be taken into account for the purposes of
determining the person’s or any other person’s entitlement to a
pension under this Part unless, within 3 months, or, if the trustees so allow,
6 months, after the person again becomes a member, the person contracts with
the trustees, in the manner required by the trustees, to repay that amount to
the Fund within 3 years.
s 24: Am 1972 No 71,
sec 2 (1) (e). Subst 1979 No 132, Sch 1 (11); 1981 No 86, Sch 1
(9).
25Termination or suspension of
pension if recipient becomes a member of Parliament
(1)
If a person who is receiving or is entitled to
receive a pension under this Part in respect of his or her service as a
member, or in respect of whom payment of a pension has been deferred under
this Part, again becomes a member his or her right to that pension shall
cease.
(2)
If a person who is receiving or is entitled to
receive a pension under this Part, or in respect of whom payment of a pension
has been deferred under this Part:
(a)
becomes a member of the Parliament of the
Commonwealth or of any other State, or
(b)
becomes a member (not being a person to whom
subsection (1) applies),
the right of that person to receive a pension under this
Part shall be suspended while that person continues to be such a
member.
(3)
s 25: Am 1980 No 14,
sec 3; 1981 No 86, Sch 1 (10); 1999 No 89, Sch 1 [16] [17].
26Suspension of pension where
another parliamentary pension received
(1)
Where any person to whom a pension would be
payable under this Part but for the provisions of this section, or in respect
of whom payment of a pension has been deferred under this Part, has become
entitled to payment of any pension by reason of having been a member or being
the spouse or de facto partner of a member of the Parliament of the
Commonwealth or of any other State, that person’s right to payment of a
pension under this Part shall be suspended while that person is so
entitled.
(2)
Notwithstanding subsection (1), where a person
has received a pension or other benefit pursuant to an entitlement referred to
in subsection (1), the trustees may in their absolute discretion direct
payment to that person of an annual pension of such amount as the trustees
think fit, but so that the aggregate of the amount of the annual pension so
directed to be paid and the amount of the annual pension, or the annual
pension equivalent of the other benefit, that the person has received pursuant
to that entitlement does not exceed the annual pension that would be payable
under this Part but for the provisions of this section.
(3)
A direction given by the trustees under
subsection (2) may be amended or revoked at any time.
(4)
This section does not apply so as to suspend a
person’s rights under this Part on account of the person’s
entitlement to a pension under the Parliamentary Contributory
Superannuation Act 1948 of the Commonwealth if the person
(or the person’s spouse or de facto partner, in a case where the
entitlement concerned is that of a spouse or de facto partner):
(a)
made an election under section 20A (1AC) of that
Act, or
(b)
became a federal member on or after 1 July
1994.
(5)
This section does not apply so as to suspend a
person’s rights under this Part on account of the person’s
entitlement to a retiring allowance under the Parliamentary Contributory
Superannuation Act 1948 of the Commonwealth if the person
pays an amount under section 26B in respect of the commuted value of the
retiring allowance.
s 26: Am 1972 No 71,
sec 2 (1) (f); 1979 No 132, Sch 1 (12); 1991 No 95, Sch 3 (22); 1995 No 99,
Sch 1; 1996 No 92, Sch 1.4 (15) (16); 1999 No 89, Sch 1 [18].
26A
s 26A: Ins 1995 No
99, Sch 1. Am 1997 No 149, Sch 1.2 [12]. Rep 2005 No 110, Sch 1
[7].
26BPayment of benefit to Fund by
former federal members
(1)
This section applies to a member:
(a)
who is entitled to, or has received, a retiring
allowance or other benefit under a superannuation scheme applicable to federal
members, and
(b)
who became a member on or after 1 January
1996.
(2)
A member may elect, not later than 3 months after
the date of becoming a member, or within such further period as the trustees
may determine in respect of the member, to pay to the Fund an amount of lump
sum benefit received by the member as a federal member under a superannuation
scheme applicable to federal members. The amount must be paid within the
period of 3 months or the further period determined by the
trustees.
(3)
A member who was a member on the commencement of
this section may elect, not later than 3 months after that commencement, or
within such further period as the trustees may determine in respect of the
member, to pay to the Fund an amount of lump sum benefit received by the
member as a federal member under a superannuation scheme applicable to federal
members. The amount must be paid within the period of 3 months or the further
period determined by the trustees.
(4)
The election must be in writing and given to the
trustees.
s 26B: Ins 1996 No
92, Sch 1.4 (17).
26BAOther payments to Fund by
former federal members
(1)
This section applies to a member:
(a)
whose combined years of actual service as a
member and former federal member will be at least 7 years on the day for the
taking of the poll at the next general election following the date when the
member became a member (the general
election day), and
(b)
who, under section 26B, paid into the Fund an
amount of lump sum benefit received by the member as a federal member,
and
(c)
whose period of service as a member for the
purposes of this Act (including any additional period as referred to in
section 26C (2)) as at the general election day is less than 7
years.
(2)
On the written application of a member to whom
this section applies, the trustees must determine, after receiving actuarial
advice, the additional amount that would be payable (the additional amount) in order to
increase the aggregate period of service of the member as a member to 7 years
on the general election day.
(3)
A member to whom this section applies may pay to
the Fund an amount that is, or amounts that in total are, equal to the
additional amount.
(4)
A payment under this section must be made:
(a)
if the member was a member on the commencement of
this section—not later than 3 months after that commencement,
or
(b)
if the member was not a member on the
commencement of this section—not later than 3 months after the date of
becoming a member, or
(c)
within such further period as the trustees may
determine in respect of the member.
s 26BA: Ins 2002 No
110, Sch 4 [14].
26CCalculation of benefits for
former federal members
(1)
On payment of an amount under section 26B or
26BA, the trustees must determine, after receiving actuarial advice and, for
the purposes of paragraph (b), after obtaining the advice of the trustees of
the member’s former superannuation scheme:
(a)
the additional period of service as a member
attributable to the member in respect of the amount paid,
and
(b)
the amounts attributable to employee-financed and
employer-financed components of the amount paid for the purposes of this
Act.
(2)
For the purposes of this Act, the period of
service of the member is taken to be increased by the additional period
attributable to the member under this section.
(3)
For the purposes of section 19:
(a)
the total salary of the member in respect of the
additional period of service is taken to be the same as the total basic salary
attributable to that member for that period, and
(b)
the amount of total basic salary calculated in
respect of a member under section 19 is to be increased by the amount of total
basic salary under this subsection.
(4)
For the purposes of section 22A, a member to whom
section 26B or 26BA applies who is entitled to a benefit under section 22A or
any other person to whom the benefit in respect of the member is
payable:
(a)
is not entitled to receive a supplementary
benefit in respect of any amount paid under section 26B or 26BA,
but
(b)
is entitled to be refunded the whole of any
amount paid under section 26B or 26BA.
s 26C: Ins 1996 No
92, Sch 1.4 (17). Am 2002 No 110, Sch 4 [15] [16].
26DPower of trustees to adjust
benefits in relation to certain liabilities
(1)
Whenever:
(a)
a right to a benefit under this Act accrues to or
in respect of a member or former member, and
(b)
the trustees have paid or are liable to pay an
amount of superannuation contributions surcharge in respect of the employer
contributions paid to the Fund on behalf of the member or former
member,
the trustees must determine in writing the surcharge
deduction amount that, in the opinion of the trustees, it would be fair and
reasonable to take into account in working out the amount of the benefit and
must make a determination reducing the benefit
accordingly.
(2)
In determining the surcharge deduction amount in
respect of a benefit payable to a member or former member, the trustees may
have regard to any or all of the following matters:
(a)
the amount of superannuation contributions
surcharge payable or paid by the trustees in respect of the member or former
member,
(b)
the amount by which the member’s or former
member’s surcharge debt account is in debit when the benefit emerges or
commences to be paid,
(c)
the value of the employer-financed portion of the
benefit,
(d)
the value of the benefits that, for the purpose
of working out (under the Superannuation Contributions Tax
(Assessment and Collection) Act 1997 of the Commonwealth)
the notional surchargeable contribution factors applicable to the member or
former member, were assumed to be likely to be payable to the member or former
member on his or her ceasing to hold office as a member of the Legislative
Council or Legislative Assembly,
(e)
whether the member or former member has qualified
for a benefit after having been a member for an aggregate period of 7 years or
more,
(f)
the amount of any payments under section
31A,
(g)
any other matter the trustees consider
relevant.
(3)
The surcharge deduction amount determined by the
trustees must not exceed:
(a)
an amount that is 15% of the employer-financed
portion of that part of the benefit payable to the member or former member
that accrued after 20 August 1996, or
(b)
such other amount of the employer-financed
portion of a benefit as is prescribed by the regulations in relation to the
period when the benefit payable to the member or former member
accrued.
(4)
For the purpose of determining the surcharge
deduction amount, the trustees may obtain actuarial advice or advice from any
other persons, as the trustees think fit.
(5)
The balance of any additional amount payable by
the trustees for superannuation contributions surcharge in respect of a member
or former member, after payment of the balance of the relevant surcharge debt
account, is to be paid by the trustees from the Fund under section 6
(2).
(6)
Subsection (1) does not authorise the reduction
of a benefit as a result of a liability for superannuation contributions
surcharge unless the benefit is a benefit under section 19, 22, 22A, 23 (1)
(paragraph (a) excepted), (2) or (3) or 27.
(7)
In this section:
surcharge
debt account, in relation to a member or former member,
means the surcharge debt account kept for the member or former member (while
holding office as a member) under section 16 of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997 of
the Commonwealth.
(8)
Despite subsection (1), the benefit of a former
member who has commenced to be paid that benefit may be adjusted by the
trustees in accordance with the regulations if the former member receives
(before, on or after the commencement of this subsection) notice of an
assessment of superannuation contributions surcharge under the Superannuation
Contributions Tax (Assessment and Collection) Act 1997 of
the Commonwealth in respect of the employer contributions paid to the Fund on
behalf of the former member.
(9)
The regulations may make provision for or with
respect to the following:
(a)
the circumstances in which the trustees may or
may not pay superannuation contributions surcharge on behalf of a former
member,
(b)
adjusting the amounts of benefits that have
commenced to be paid or paying amounts in relation to a surcharge deduction
amount or an assessment of superannuation contributions surcharge received by
a former member before, on or after the commencement of this
subsection.
(10)
Without limiting subsection (9), the regulations
may make provision for the payment by the trustees of an amount of additional
surcharge payable by a former member above the amount determined under
subsection (3).
s 26D: Ins 1997 No
149, Sch 1.2 [13]. Am 2002 No 110, Sch 4 [17]–[19]; 2005 No 110, Sch 1
[8].
27Minimum
benefit
(1)
Where the aggregate of instalments of pension and
any other benefit paid or payable under this Part in respect of any member who
ceased to be a member after the date of assent to the Parliamentary Contributory
Superannuation (Amendment) Act 1981 is less than the
amount to which his or her personal representative would have been entitled
under section 22A (4) had he or she ceased to be a member in the circumstances
specified in section 22A (4), the difference shall, as soon as practicable
after the death of the member and the member’s spouse or de facto
partner (if any) and after any pensions under section 23B in respect of the
dependent children of the member cease to be payable, be paid out of the Fund
to such person or persons as the trustees direct.
(1A)
(2)
A reference in subsection (1) to a member is, in
the case of instalments of pension or other benefit paid or payable as
determined under subsection (7) or (8) of section 23, a reference only to the
member in respect of whom those instalments or that other benefit are or is
paid or payable.
s 27: Am 1972 No 71,
sec 2 (1) (g); 1979 No 132, Sch 1 (13); 1981 No 86, Sch 1 (11); 1996 No 92,
Sch 1.4 (15).
27APower of trustees to adjust
benefits to comply with certain standards relating to
superannuation
(1)
If:
(a)
a member or former member becomes entitled to
receive a pension under this Act, other than a pension under section 22,
and
(b)
payment of the pension to the member or former
member would, but for this subsection, not be consistent with relevant
Commonwealth superannuation standards,
the member or former member may, by notice in writing
given to the trustees before the pension starts to be paid, elect to receive
the pension:
(c)
in a form that complies with those standards,
or
(d)
in a form that is in accordance with this Act
(apart from this section).
(2)
Even after such a pension has started to be paid
to a member or former member in a form that is not consistent with relevant
Commonwealth superannuation standards, the member or former member is, by
notice in writing given to the trustees, entitled to make an election or a
further election to receive payment of the pension in a form that is
consistent with any relevant Commonwealth superannuation
standards.
(3)
An election made and notified to the trustees in
accordance with this section is sufficient authority for the trustees to pay a
pension in accordance with the election of the member or former member
concerned.
(4)
An election under this section to receive a
pension in a form that is consistent with any relevant Commonwealth
superannuation standards is irrevocable.
(5)
A member or former member who does not notify the
trustees of an election made by the member or former member under this section
before the pension concerned starts to be paid is, subject to subsection (2),
to be regarded as having elected to receive payment of the pension in the form
provided by this Act (apart from this section).
(6)
If a member or former member makes an election
under this section to receive a pension in a form that is consistent with any
relevant Commonwealth superannuation standards, the trustees must ensure that
the pension is varied only to the extent necessary to comply with those
standards.
(7)
An election under this section to receive a
pension in a form that is consistent with any relevant Commonwealth
superannuation standards is binding not only on the member or former member
who made the election but also on any person claiming a benefit under this Act
through that member or former member.
(8)
If an election is made under this section to
receive a pension in a form that is consistent with any relevant Commonwealth
superannuation standards, the pension is payable in that form despite any
other provision of this Act to the contrary.
s 27A: Ins 1991 No
95, Sch 3 (5). Am 1997 No 42, Sch 1.2 [11]–[15]; 1997 No 149, Sch 1.2
[14].
27B, 27C
s 27B: Ins 1991 No
95, Sch 3 (5). Am 1997 No 42, Sch 1.2 [16]. Rep 1997 No 149, Sch 1.2
[15].
s 27C: Ins 1991 No
95, Sch 3 (5). Rep 1997 No 42, Sch 1.2 [17].
28Pensions to be paid by
instalments
Pensions payable under this Part shall be paid by
instalments at such intervals as the trustees may from time to time
determine.
s 28: Am 1991 No 95,
Sch 3 (23).
28APayment or release of benefit
in other circumstances
(1)
The trustees may, on the written application of a
former member who has preserved a benefit in the Fund, and who is not
otherwise entitled to be paid a benefit under this Act, pay the former member
a benefit on the grounds of the former member’s severe financial
hardship.
(2)
The trustees may only pay the benefit if they are
satisfied that the circumstances are such that a benefit would be payable on
the grounds of severe financial hardship if the former member were a member of
a regulated superannuation fund within the meaning of the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth.
(3)
The amount of the benefit:
(a)
is to be the amount payable for the purpose of
complying with the requirements of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth for payment of such a benefit
from a regulated superannuation fund, and
(b)
is not to exceed the amount of any benefit
preserved by the former member.
(4)
A former member may, at any time, lodge with the
trustees an election to vary or revoke an election under this
section.
(5)
An election under this section is to be in a form
approved by the trustees for the purposes of this
section.
s 28A: Ins 1997 No
149, Sch 1.2 [16].
28BPayment or release of benefit
on compassionate grounds
(1)
The trustees may, on the written election of a
former member who has preserved a benefit in the Fund, and who is not
otherwise entitled to be paid a benefit under this Act, pay the former member
a benefit on compassionate grounds.
(2)
The trustees may only pay the benefit if they are
satisfied that the circumstances are such that the Australian Prudential
Regulation Authority would be entitled to determine that the amount could be
released on compassionate grounds if the former member were a member of a
regulated superannuation fund within the meaning of the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth.
(3)
The amount of the benefit:
(a)
is to be the amount payable for the purpose of
complying with the requirements of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth for payment of such a benefit
from a regulated superannuation fund, and
(b)
is not to exceed the amount of any benefit
preserved by the former member.
(4)
A former member may, at any time, lodge with the
trustees an election to vary or revoke an election under this
section.
(5)
An election under this section is to be in a form
approved by the trustees for the purposes of this
section.
s 28B: Ins 1997 No
149, Sch 1.2 [16]. Am 1999 No 89, Sch 1 [19].
28CAdjustment of
benefit
If a benefit is paid to a person under section
28A or 28B, and the person subsequently becomes entitled to another benefit
under this Act, the trustees must make a determination reducing the amount of
the subsequent benefit to take into account any benefits previously paid under
section 28A or 28B. The trustees may for that purpose obtain actuarial
advice.
s 28C: Ins 1997 No
149, Sch 1.2 [16].
28DCommutation of pensions for
adjustment of benefit
(1)
If a determination reducing a benefit that may be
taken in the form of a pension is made under section 26D, the trustees may, at
their discretion and with the consent of the member or former member
concerned, commute part of the pension to a lump sum for the purposes of
payment to the trustees of the amount of the reduction.
(2)
Commutation of part of a pension under this
section:
(a)
does not affect any other right that the member
or former member has to commute the pension under this Act,
and
(b)
is not to be taken into account for the purpose
of determining whether, and to what extent, any such other right may be
exercised, and
(c)
is to be done on a basis determined by the
trustees for the purposes of this section.
(3)
The trustees may obtain actuarial advice for the
purpose of determining the basis on which part of a pension is to be commuted
under this section.
(4)
This section has effect despite any other
provision of this Act.
s 28D: Ins 1997 No
149, Sch 1.2 [16].
28EPayment of benefit to members
who have attained 65 years
Despite any provision of this Act, the trustees
must pay a member who has attained the age of 65 years the whole or part of
the member’s benefit under this Act if the trustees are of the opinion
that it is necessary to do so in order to be consistent with a relevant
Commonwealth superannuation standard.
s 28E: Ins 2002 No
110, Sch 4 [20].