Part 1Preliminary
1Name of Act
This Act may be cited as the State Authorities Superannuation Act
1987.
2Commencement
This Act shall commence on 1 April
1988.
2AClosure of scheme to new entrants on and from 19 December
1992
(1)
Despite any other provision of this Act, an
employee is not entitled to make an election to contribute to the Fund on or
after 19 December 1992 (the closure
date).
(2)
However, a person who lodged an election to
contribute to the Fund with the Board, or with the person’s employer,
before the closure date is taken to have elected to contribute to the Fund
before that date and this Act applies accordingly.
(3)
An election that was sent to the Board or
employer, by post or otherwise, before the closure date is taken to have been
lodged with the Board before that date.
s 2A: Ins 1992 No
101, Sch 1 (1).
2BEmployee may resume contributions after break in
employment
(1)
Despite section 2A, an employee who resumes
employment as an employee in the circumstances set out in section 30 may make
an application under that section and may resume
contributions.
(2)
Section 2A does not prevent an employee from
exercising a transfer option conferred under section 128A of the Superannuation Administration Act
1996.
s 2B: Ins 1992 No
101, Sch 1 (1). Am 1998 No 144, Sch 2.4 [1].
2CEmployee over 55 years may contribute after election to
preserve benefit after salary reduction
(1)
Despite section 2A, an employee who has elected
under Part 2 of Schedule 5 to make provision for a preserved benefit before
the commencement of this section, or who so elects after the commencement of
this section, is entitled to elect to contribute to the
Fund.
(2)
Despite section 2A, an employee who has elected
under Division 3B of Part 4 of the Superannuation
Act 1916 to defer or preserve a benefit before the
commencement of this section, or who so elects after the commencement of this
section, is entitled to elect to contribute to the Fund.
(3)
The election to contribute to the Fund must be
made when the employee elects to make provision for a preserved benefit or to
defer or preserve a benefit.
(4)
Despite subsection (3), an employee who elected
to make provision for a preserved benefit or to defer or preserve a benefit
before the commencement of that subsection may elect to contribute to the Fund
at any time within 3 months after the commencement of that
subsection.
s 2C: Ins 1992 No
101, Sch 1 (1). Am 1993 No 42, Sch 3; 1994 No 32, Sch 2; 2005 No 52, Sch 5 [1]
(am 2005 No 98, Sch 2.58).
3Definitions
(1)
In this Act—
additional benefit
has the meaning given by section 36.
additional benefit
levy means the levy that, in order to attract the additional
benefit for a contributor, is paid to the Fund by transfer from the
contributor’s account under section 22 (2) (b).
Administration
Account means the STC Administration Account maintained
under the Superannuation Administration Act
1996.
applicable contribution
period has the meaning given by section 36.
appointed day means 1
April 1988.
attributed salary, in
relation to a contributor at any time, means—
(a)
where the contributor is a full-time employee at
that time—the salary of the contributor at that time,
or
(b)
where the contributor is a part-time employee at
that time—the salary that would be payable to the contributor at that
time if employed as a full-time employee.
benefit means a benefit payable
under this Act.
Board means the State Authorities
Superannuation Board referred to in section 4 of the Superannuation
Administration Act 1991.
Commonwealth taxation
law means a law of the Commonwealth that provides for the
levying and collection of a tax.
complying approved deposit
fund means a complying approved deposit fund for the
purposes of section 47 of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth.
complying superannuation
fund means a complying superannuation fund for the purposes
of section 45 of the Superannuation Industry (Supervision) Act
1993 of the Commonwealth.
contribution period
means a named month or such other period as may be prescribed.
contributor means an
employee whose election to contribute to the Fund has taken
effect.
contributor-financed
benefit, in relation to a benefit payable to, or in relation
to, a contributor, means the balance at credit in the contributor’s
account at the time the benefit is paid.
contributor’s
account means the account established and maintained under
section 12 in respect of the contributor.
deferred benefit, in
relation to a contributor, means a benefit deferred under section 42AA, 43 or
43AA.
discharge, in relation to a
contributor, means the cessation of the contributor’s employment
expressed by the employer to be on the ground that the period, or successive
periods, for which the contributor was employed has or have
ended.
dismissal means the
termination by an employer of the employment of a contributor with the
employer, but does not include retrenchment or discharge or a retirement on
the grounds of incapacity in circumstances which entitle the employee to a
benefit.
early retirement
age means the age of 59 years or, if some lower age (but not
lower than the age of 55) is prescribed, that lower age.
employee means a person who is
employed by an employer and who is the subject of a certificate by the
employer to the effect that—
(a)
if the regulations prescribe any class of persons
as not being employees—the person is not within any such class,
and
(b)
if the regulations prescribe any requirement with
which a person must comply in order to be an employee—the person
complies with the requirement (specifying the
requirement),
but does not include an excluded person referred to in
Schedule 2.
employee
contribution means a contribution made under Part 3, other
than a salary sacrifice contribution.
employer means—
(a)
the Crown, the Government or a Minister or other
member of Parliament, or
(b)
an authority specified in Schedule
1,
and a reference to employment with an employer includes
a reference to employment with successive employers.
employer-financed
benefit, in relation to a benefit payable to, or in relation
to, a contributor, means so much of the benefit as is paid from the reserve
for that employer.
employer reserve means
a reserve established and maintained under section 14.
entry date, in relation to a
contributor, means the date as at which the contributor’s election to
contribute to the Fund took effect, that election being—
(a)
the only such election made by the contributor,
or
(b)
where the contributor has made more than one such
election—the later or latest of those
elections.
executive officer
means a contributor who is—
(a)
a Public Service senior executive within the
meaning of the Government Sector Employment Act
2013, or
(b)
an employee (not being a Public Service senior
executive) of an employer specified in Schedule 1 and who holds an office
designated by the Secretary of the Treasury as the office of an executive
officer, or
(c)
a police executive officer,
or
(d)
an office holder nominated for the purposes of
section 11A of the Statutory and Other Offices
Remuneration Act 1975.
(e)
exit date, in relation to a
contributor, means the date on which the contributor ceases employment with an
employer, that cessation of employment being—
(a)
the only such cessation of employment of the
contributor, or
(b)
where there has been more than one such cessation
of employment of the contributor—the later or latest of those cessations
of employment.
family law
superannuation legislation has the same meaning as it has in
Part 5AA.
family law superannuation
payment has the same meaning as it has in Part
5AA.
First State Superannuation
Fund has the same meaning as Fund has in the First State Superannuation Act
1992.
FTC means the FSS Trustee
Corporation established under the Superannuation
Administration Act 1996.
full-time employee
means an employee whose salary ratio is equal to 1.
Fund means the State
Authorities Superannuation Fund established under this Act.
maximum benefit
points has the meaning given by section 36.
non-contributor
spouse has the same meaning as it has in Part
5AA.
part-time employee
means an employee whose salary ratio is less than 1 but at least
0.1.
penalty, in relation to a
Commonwealth taxation law, includes (but is not limited to)—
(a)
a penalty rate of taxation under that law,
and
(b)
the loss of a concessional rate of taxation under
that law.
police executive
officer means an executive officer within the meaning of
Part 5 of the Police Act
1990.
preserved benefit, in
relation to a contributor, means a benefit preserved under section
43AAA.
prospective benefit
points has the meaning given by section 36.
relevant
Commonwealth superannuation standard means a standard that
would be applicable under the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth if the Fund was a regulated
superannuation fund under that Act.
resign means cease to be
employed by an employer, but does not include—
(a)
retrenchment, discharge or dismissal,
or
(b)
ceasing to be employed because of death,
or
(c)
ceasing to be employed on the privatisation of an
employer, or
(d)
ceasing to be employed on the grounds of
incapacity in circumstances which entitle the employee to a
benefit.
retire means cease (otherwise
than by reason of death) in any manner to be employed by an employer on or
after reaching the early retirement age.
retirement savings
account has the same meaning as in the Retirement Savings
Accounts Act 1997 of the Commonwealth.
retrenchment, in relation
to a contributor, means the termination of the employment of the contributor
with an employer where the employment is expressed by the employer to
be—
(a)
compulsorily terminated by the employer on the
ground that—
(i)
the employer no longer requires the
contributor’s services and, on termination of the contributor’s
employment, does not propose to fill the contributor’s
position,
(ii)
the work that the contributor was engaged to
perform has been completed, or
(iii)
the amount of work that the employer requires to
be performed has diminished and, due to that fact, it has become necessary to
reduce the number of employees employed by the employer,
or
(b)
terminated as a result of the acceptance by the
contributor of an offer by the employer of terms of retrenchment made on a
ground specified in paragraph (a).
salary, in relation to a
contributor, means salary of the contributor, determined in accordance with
section 4 or 4A and expressed as an annual rate.
salary ratio, in relation
to a contributor at any time during a contribution period, means the number
ascertained by dividing the salary of the contributor at the commencement of
the contribution period by the attributed salary of the contributor at that
commencement.
salary sacrifice
contribution means a contribution paid to the Fund for
crediting in a contributor’s account by the contributor’s employer
in accordance with an agreement referred to in section 19A (1)
(b).
spouse of a deceased contributor
or deceased former contributor means the surviving spouse of the contributor
or former contributor.
STC means the SAS Trustee
Corporation established under the Superannuation
Administration Act 1996.
superannuation
contributions surcharge means the superannuation
contributions surcharge imposed under the Superannuation Contributions Tax
Imposition Act 1997 of the Commonwealth.
superannuation guarantee
shortfall has the same meaning as in the Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth.
superannuation
scheme means a scheme, fund or arrangement (whether or not
established by an Act) under which any superannuation or retirement benefits
are provided by an employer.
superannuation year
means the year commencing on 1 April 1988 and each subsequent year commencing
on 1 April.
this
Act includes the regulations.
Note—
The Interpretation
Act 1987 contains definitions and other provisions that
affect the interpretation and application of this Act.
(2)
In this Act—
(a)
a reference to a function includes a reference to
a power, authority and duty, and
(b)
a reference to the exercise of a function
includes, where the function is a duty, a reference to the performance of the
duty.
(3)
A reference in this Act to an authority where
used in or in connection with the definition of employer is a reference
to an authority, organisation, corporation, person or other
entity.
(4)
If the inclusion of an employer in Schedule 1 is
expressed to be limited in any respect, this Act has effect in relation to the
employer subject to the limitation.
(5)
Notes included in this Act do not form part of
this Act.
s 3: Am 1988 No 136,
Sch 1 (1); 1989 No 107, Sch 1; 1989 No 229, Sch 1; 1990 No 48, Sch 2; 1991 No
95, Sch 9 (1); 1991 No 96, Sch 6; 1992 No 102, Sch 5 (1); 1993 No 42, Sch 2;
1993 No 111, Sch 5 (1); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [1] [2]; 1997
No 149, Sch 1.6 [1]; 1998 No 144, Sch 2.4 [2] [3]; 1999 No 86, Sch 1.7
[1]–[4]; 2000 No 100, Sch 5 [1]; 2000 No 114, Sch 1.5 [1] [2]; 2003 No
77, Sch 11 [1] [2]; 2005 No 91, Sch 3.12 [1]; 2006 No 53, Sch 1.4 [1]; 2007 No
28, Sch 2 [1]; 2010 No 19, Sch 3.100 [1]; 2011 No 62, Sch 3.32 [1]; 2013 No
41, Sch 3.8; 2015 No 58, Sch 3.81 [1] [2]; 2018 No 28, Sch
1.34.
4Salary
(1)
For the purposes of this Act, salary, in relation to a
contributor (other than an executive officer) means the sum of—
(a)
the remuneration, salary or wages payable in
money to the contributor in the contributor’s capacity as a contributor,
as reported to STC from time to time by the contributor’s employer,
including—
(i)
a loading in respect of any shift allowance, as
determined in accordance with the regulations, and
(ii)
other allowances payable in money that are of a
kind included within the value of leave paid on termination of employment,
and
(iii)
weekly workers compensation paid to the
contributor as from a date determined by STC under subsection
(1B),
but not including the excluded amounts or allowances
referred to in subsection (2), and
(a1)
if salary sacrifice contributions are made in
respect of the contributor, the amounts payable for those contributions under
section 19B, and
(b)
if approved employment benefits are provided to
the contributor, the cost of providing the approved employment benefits, as
determined by the Minister, with the concurrence of the
Treasurer.
(1A)
The weekly workers compensation to be treated as
salary for the purposes of this Act does not include any amount by which the
aggregate of—
(a)
the weekly workers compensation paid to an
injured contributor, and
(b)
the salary actually paid to the contributor while
partially incapacitated,
exceeds the salary that the contributor would probably
have been earning but for the injury (assuming the contributor had continued
to be employed in the same or some comparable
employment).
(1B)
STC may determine a date as from which weekly
workers compensation paid to a contributor is to be treated as salary for the
purposes of this Act, being a date not earlier than—
(a)
1 April 1988 (the date of commencement of this
Act), or
(b)
if the liability to pay weekly workers
compensation in respect of the contributor first arose on a date later than 1
April 1988—that later date.
(1C)
Despite subsection (1), the regulations may
provide that the salary of an employee or
class of employees (other than an executive officer) for the purposes of this
Act is to be determined in the manner prescribed by the
regulations.
(1D)
A regulation may be made under subsection (1C)
only if the Minister and the Treasurer certify in writing that—
(a)
there has been a change in the basis on which the
remuneration of the employee or class of employees is determined,
and
(b)
the effect of that change is to change the basis
of remuneration to an annualised one, and
(c)
the effect of the regulation is not to reduce the
benefits that would have accrued under this Act to the employee or class of
employees, had there been no change in the basis of remuneration,
and
(d)
the making of the regulation and associated
arrangements will not result in a greater financial cost to the Government
than if the regulation and associated arrangements were not
made.
(2)
The excluded amounts or allowances
are—
(a)
an amount paid for overtime or as a bonus, or an
allowance instead of overtime,
(b)
except to the extent determined in accordance
with the regulations, as referred to in subsection (1) (a)—an amount
paid as shift allowance,
(c)
except to the extent that this section otherwise
provides—a relieving allowance,
(d)
an expense allowance or an allowance for
travelling, subsistence or other expenses,
(e)
an equipment allowance,
(e1)
in respect of any period during which the
contributor takes extended leave (or leave in the nature of extended leave)
otherwise than on full pay, such part of the remuneration received by the
contributor as exceeds the salary (within the meaning of subsection (1)) that
he or she would have received had he or she taken leave on full
pay,
(f)
an amount paid for rent or as a residence,
housing or quarters allowance, and
(g)
an amount of weekly workers compensation excluded
by subsection (1A).
(3)
If a contributor’s employer, or a person
authorised to do so on behalf of the employer, certifies in writing to STC
that a relieving allowance to be, or being, paid to the contributor in the
contributor’s capacity as an employee is likely to be paid for a
continuous period of 1 year (whether or not the period is partly before the
date of the certificate), the allowance is, as from—
(a)
the date on which the certificate is lodged with
STC, or
(b)
the date from which the allowance becomes
payable,
whichever is the later, salary for the purposes of this
Act.
(4)
If a relieving allowance has been paid to a
contributor in the contributor’s capacity as an employee for a
continuous period of 1 year that ends after the appointed day and, during that
period, the allowance has not been treated as part of the contributor’s
salary in accordance with subsection (3), the allowance shall, as from the
expiration of that period of 1 year, be treated as part of the
contributor’s salary while its payment to the contributor
continues.
(4A)
For the purposes of subsection (4), a reference
to a continuous period of 1 year in relation to a contributor who is employed
in an educational institution is to be read as a reference to the academic
year of the institution.
(5)
If a contributor is on secondment to another
employer, the salary of the contributor for the purposes of this Act is the
salary paid or payable to the contributor by the other
employer.
(6)
The Governor may, by order in writing, declare
unconditionally, or subject to conditions, that subsection (7)
applies—
(a)
to a contributor specified in the order who is on
secondment but not to another employer, and
(b)
generally during the period of that secondment,
or during such period as is specified in the order, being, in either case, a
period commencing before, on or after the date of the
order.
(7)
During the period in which this subsection is
declared pursuant to subsection (6) to apply to a contributor on secondment,
the contributor’s salary shall, for the purposes of this Act, be that
paid or payable in respect of the employment to which he or she is
seconded.
(8)
In this section—
academic year, in relation
to an educational institution, means a continuous period commencing on the
first day of any academic term of the institution and ending on the day before
the first day of the corresponding academic term in the following calendar
year.
approved employment
benefit means a benefit provided to a contributor at the
cost of the contributor’s employer (being a benefit of a private nature)
that is approved by the Minister, with the concurrence of the Treasurer, for
the purposes of this section in relation to the contributor or a class of
employees of which the contributor is a member.
shift allowance means an
allowance paid to an employee in respect of shift work performed by the
employee, and includes amounts paid as penalty rates.
weekly workers
compensation, in relation to a contributor, means weekly
payments of compensation under the Workers
Compensation Act 1987 (or the provisions of the Workers
Compensation Act 1926 as applied by that Act) payable to
the contributor because the contributor is partially incapacitated for work
through injury.
s 4: Am 1989 No 107,
Sch 1; 1991 No 17, Sch 1; 1991 No 94, Sch 1; 1993 No 42, Sch 2; 1996 No 39,
Sch 4; 2005 No 85, Sch 2.5 [1]; 2006 No 53, Sch 1.4 [2]; 2007 No 28, Sch 2
[2].
4ASalary of executive officers
(1)Definition of salary
For the purposes of this Act, the salary of an executive officer
is the salary as last nominated or changed in accordance with this
section.
(2)Nomination of salary on initial and subsequent
appointments
An amount of salary for the purposes of this Act
must be nominated to an executive officer’s employer by the officer, on,
or as soon as practicable after, being appointed as an executive officer. An
amount may also be nominated to the officer’s employer by the officer
on, or as soon as practicable after, being reappointed, or appointed to
another position, as an executive officer.
(3)Amount of salary
The amount nominated is to be not less than the
monetary remuneration payable to the executive officer at the date of
nomination and not more than the total value of the remuneration package paid
to the officer (less the cost of providing employer’s contributions to
superannuation, other than salary sacrifice contributions, under this Act and
the State Authorities Non-contributory Superannuation Act
1987 and any performance-related incentive
payment).
(4)Failure to nominate salary
If an executive officer fails to nominate an
amount of salary within 28 days of first being appointed as an executive
officer or within such further period as STC may allow, the officer is taken
to have nominated an amount of salary that is equal to the monetary
remuneration payable to the officer at the end of the applicable
period.
(5)Reduction in nominated salary
An executive officer may, from time to time, by
notice to the officer’s employer elect to reduce the amount of salary
nominated under this section, but not so that the amount is less than the
monetary remuneration payable to the officer at the date of the
election.
(6)Increase in nominated salary
An executive officer may, from time to time, by
notice to the officer’s employer elect to increase the amount of salary
nominated under this section, but not so as to increase the amount nominated
by a percentage of that amount that is more than the percentage by which the
remuneration package of the officer has increased since the amount of salary
was last nominated or changed.
(7)Nominations and elections
An employer must notify STC of a nomination or
election under this section. Any such nomination or election takes effect on
the date of notification to STC or on such other date as STC may determine
with the consent of the executive officer concerned.
(8)Effect of changes in packages
Nothing in this section requires the nominated
amount of salary to be increased if, because of a variation in the
remuneration package of an executive officer or in the proportions of the
remuneration package comprising monetary remuneration and employment benefits
of the officer, the amount of salary as last nominated or changed for the
purposes of this section is less than the monetary remuneration of the
officer.
(9)Transitional provision relating to nomination of
salary by executive officers
An executive officer may, within 3 months after
the commencement of this subsection, nominate a new amount of salary in
accordance with this section if, immediately before the commencement of this
subsection, the officer was an executive officer.
(10)Monetary remuneration
In this section, the monetary
remuneration payable to an executive officer
is—
(a)
if the officer is a Public Service senior
executive or a police executive officer, the monetary remuneration payable in
accordance with the Government Sector Employment Act
2013 or the Police Act
1990, as the case requires, or
(b)
if the officer is an office holder nominated for
the purposes of section 11A of the Statutory and
Other Offices Remuneration Act 1975, the remuneration
payable to the officer as reduced under that section by the cost of employment
benefits provided to the officer, or
(c)
in the case of any other executive officer, the
monetary remuneration payable to the officer.
s 4A: Ins 1989 No
107, Sch 1. Subst 1989 No 229, Sch 1. Am 1990 No 48, Sch 2. Subst 1993 No 42,
Sch 2. Am 1993 No 111, Sch 5 (2); 1996 No 39, Sch 4; 1999 No 86, Sch 1.7 [5];
2005 No 52, Sch 5 [2]; 2007 No 28, Sch 2 [3]; 2011 No 62, Sch 3.32 [1]; 2015
No 58, Sch 3.81 [3].
4B
s 4B: Ins 2006 No 53,
Sch 1.4 [3]. Rep 2007 No 28, Sch 2 [4].
5Secondment of employee otherwise than to
employer
(1)
The Governor may, by order in writing, declare
unconditionally or subject to conditions that subsection (2)
applies—
(a)
to a contributor specified in the order who is on
secondment but not to another employer, and
(b)
generally during the period of that secondment,
or during such period as is specified in the order being, in either case, a
period commencing before, on or after the date of the
order.
(2)
During the period in which this subsection is
declared under subsection (1) to apply to a contributor, the employer
specified in the declaration shall be deemed to be the employer from whose
employment the contributor is seconded.
6Part-time employment with more than one
employer
(1)
Where a contributor is in part-time employment
with more than one employer at the same time, this Act applies to the
contributor separately in relation to each such employment as if, in relation
to each such employment, the contributor were a different
person.
(2)
s 6: Am 1993 No 111,
Sch 5 (3).
7Employees of Crown etc
An employee of the Crown, the Government or a
Minister or other member of Parliament shall, for the purposes of this Act, be
deemed to be employed by such person or organisation as may be
prescribed.
s 7: Am 2013 No 41,
Sch 3.8.
8Provisions respecting certain employees
(1)
Members of the NSW Police Force are, for the
purposes of this Act, to be taken to be employed in the NSW Police Force by
the Crown.
(2)
s 8: Am 1990 No 48,
Sch 2; 2001 No 107, Sch 7.8; 2011 No 62, Sch 3.32 [2].
9Persons not subject to Act
Schedule 2 has effect.
10Savings and transitional provisions
Schedules 3 and 4 have
effect.
Part 2The State Authorities Superannuation
Fund
11Establishment of the Fund
(1)
The Board shall establish, and shall maintain and
administer, the State Authorities Superannuation Fund.
(2)
The Public Authorities Superannuation Fund
established under the Public Authorities Superannuation
Act 1985 is amalgamated with, and forms part of, the
Fund.
(3)
STC shall cause to be paid to the
Fund—
(a)
contributions or payments made by employers and
employees,
(b)
income derived from investment of the Fund, and
any profit made from realisation of any investment of the
Fund,
(c)
money borrowed for the purposes of the Fund,
and
(c1)
any fees paid to STC arising under the family law
superannuation legislation or Part 5AA, and
(d)
any other amounts payable to the
Fund.
(4)
STC shall cause to be paid from the
Fund—
(a)
by transfer from the Fund to the Administration
Account—administration costs incurred by STC under the Superannuation Administration Act 1996
and administration costs arising under the family law superannuation
legislation or Part 5AA,
(b)
such amounts as are necessary to satisfy any
liability of the Fund with respect to tax payable under any Commonwealth
taxation law or an amount of superannuation contributions surcharge
payable,
(c)
the benefits payable under this Act and any other
prescribed superannuation scheme, and
(c1)
other amounts payable by STC and arising under
the family law superannuation legislation or Part 5AA, and
(d)
any other amounts payable from the
Fund.
(5)
If a loss is incurred in realising any investment
forming part of the assets of the Fund, the Fund is accordingly reduced by the
amount of that loss.
s 11: Am 1988 No 136,
Sch 1 (2); 1991 No 96, Sch 6; 1996 No 39, Sch 4; 1997 No 149, Sch 1.6 [2] [3];
2003 No 77, Sch 11 [3]–[5].
12Contributors’ accounts
(1)
STC shall establish and maintain within the Fund
a separate account for each contributor.
(2)
There is to be credited to a contributor’s
account—
(a)
the contributions made by the contributor to the
Fund, and
(b)
any salary sacrifice contributions made by the
contributor’s employer under Part 3 in respect of the
contributor.
(3)
There shall be debited to a contributor’s
account—
(a)
where the contributor is covered for the
additional benefit—the amount of the additional benefit
levy,
(a1)
an amount equal to the tax payable by STC under
Commonwealth taxation law in respect of any salary sacrifice contribution
credited to a contributor’s account,
(b)
such part of the amount of any benefit paid to
the contributor as comprises the contributor-financed benefit,
and
(c)
administration costs incurred by STC under the
Superannuation Administration Act 1996
in relation to the contributor, and
(d)
the whole or part (as determined by STC) of an
amount that is payable by STC and arises under the family law superannuation
legislation or Part 5AA and that is payable to, or in respect of, a spouse or
former spouse of the contributor or a person whose superannuation interest
(within the meaning of Part 5AA) is derived from the
contributor.
s 12: Am 1991 No 96,
Sch 6; 1996 No 39, Sch 4; 2003 No 77, Sch 11 [6]; 2006 No 53, Sch 1.4 [4] [5];
2007 No 28, Sch 2 [5].
13Additional Benefit Reserve Fund
(1)
STC shall establish and maintain an Additional
Benefit Reserve Fund.
(2)
There shall be credited to the Reserve Fund the
amounts debited under section 12 (3) (a).
(3)
There shall be debited to the Reserve Fund
one-quarter of any payment of any additional benefits.
s 13: Am 1996 No 39,
Sch 4.
14Reserves for employers
(1)
STC shall, in relation to each employer specified
in Part 1 of Schedule 1, establish and maintain within the Fund a separate
employer reserve.
(2)
STC shall, in relation to each of Parts 2 and 3
of Schedule 1, establish and maintain within the Fund a separate employer
reserve.
(3)
There shall be credited to such an employer
reserve the contributions made by the employer or employers to whom the
reserve relates, other than salary sacrifice contributions made under Part
3.
(4)
There shall be debited to such an employer
reserve—
(a)
the amount of the employer-financed benefit
(including three-quarters of any payment of any additional benefits) included
in the amount of any benefit paid to, or in relation to, a contributor who,
immediately before the benefit became payable, was an employee of the employer
or an employer to whom the reserve relates, and
(b)
administration costs incurred by STC under the
Superannuation Administration Act 1996
or under the family law superannuation legislation or Part 5AA in relation to
the employer or an employer to whom the reserve relates,
and
(c)
the whole or part (as determined by STC) of an
amount that is payable by STC and that arises under the family law
superannuation legislation or Part 5AA and that is payable to, or in respect
of—
(i)
a spouse or former spouse of an employee or
former employee who, immediately before the payment, was an employee or former
employee of the employer or an employer to whom the reserve relates,
or
(ii)
a person whose superannuation interest (within
the meaning of Part 5AA) is derived from any such employee or former
employee.
(4A)
Despite any other provision of this Act, there is
to be debited to the Crown employer reserve such amount of the administration
costs incurred by STC in respect of the transfer of an eligible deferred
benefit under Part 5B as is approved by the Treasurer.
(5)
If the amount standing to the credit of the
employer reserve established for Part 3 of Schedule 1 is insufficient to meet
the amounts payable from the reserve, the deficiency shall be recouped from
the Consolidated Fund which is, to the necessary extent, appropriated
accordingly.
(6)
STC may, with the concurrence of the Treasurer
and after obtaining actuarial advice, adjust the amount credited to an
employer reserve by crediting or debiting an amount, if it appears to STC
appropriate to do so because of a change in the constitution or nature of an
employer.
(7)
Subsection (6) does not apply to a change in the
constitution or nature of an employer because of a Government privatisation
initiative or other Government initiative.
s 14: Am 1991 No 96,
Sch 6; 1993 No 111, Sch 5 (4); 1996 No 39, Sch 4; 2002 No 111, Sch 4 [1]; 2003
No 77, Sch 11 [7] [8]; 2005 No 52, Sch 5 [3]; 2006 No 53, Sch 1.4
[6].
14AAdditional payments by certain
employers
(1)
If the amount credited to an employer’s
reserve maintained for an employer specified in Part 1 of Schedule 1 is
insufficient to meet the amounts payable from the reserve in respect of the
employer, STC may require the employer to pay an amount into the Fund that is
equal to the deficiency.
(2)
Any amount that is not paid by an employer within
14 days of written notice of the requirement to pay the amount being given by
STC to the employer is a debt owed to STC and may be recovered by STC
accordingly.
(3)
This section does not apply to a change in the
constitution or nature of an employer because of a Government privatisation
initiative.
s 14A: Ins 1993 No
111, Sch 5 (5). Am 1996 No 39, Sch 4.
14BSource of administration costs
payments
(1)
The administration costs payable in respect of
the superannuation scheme established under this Act are to be paid from
employer reserves and contributors’ accounts established in accordance
with this Act.
(2)
The administration costs payable in respect of
deferred benefits or preserved benefits are to be paid from
contributors’ accounts established in accordance with this
Act.
(3)
The administration costs payable in respect of
pensions provided under this Act are to be paid from employer reserves
established in accordance with this Act.
s 14B: Ins 1996 No
39, Sch 4. Am 1996 No 121, Sch 1.19 (1)–(4); 1998 No 144, Sch 2.4
[4].
15Other accounts and reserves and assets
portfolios
(1)
STC may establish and maintain within the Fund
such other accounts and reserves as, in the opinion of STC, are necessary or
convenient for the administration of the Fund and this
Act.
(2)
Without limiting subsection (1), STC may
establish separate asset portfolios, comprising assets of the Fund allocated
by STC, for the purposes of the Fund.
(3)
A contributor or former contributor may at any
time lodge with STC an election to have the contributor or former
contributor’s account, or part of the account, treated, for the purpose
of allocating Fund earnings, as being invested as part of one or more
particular asset portfolios nominated by STC to the contributor or former
contributor. The contributor or former contributor may elect to revoke or vary
any such election.
(4)
STC may determine that a contributor’s or
former contributor’s account, or part of an account, is to be treated,
for the purpose only of allocating the income of the Fund, as being invested
as part of one or more particular asset portfolios if the contributor or
former contributor does not make an election or revokes an election without
making another election.
(5)
STC may treat an account (other than a
contributor’s or former contributor’s account) or a reserve, or
part of an account or reserve, for the purpose only of allocating Fund income,
as being invested as part of one or more particular asset
portfolios.
s 15: Am 1991 No 96,
Sch 6; 1996 No 39, Sch 4; 2002 No 111, Sch 4 [2].
16Adjustment of accounts and reserves for interest
etc
(1)
STC shall, from time to time, adjust each of the
accounts and reserves established under this Part at a rate fixed by STC,
having regard to the income of the Fund and the earnings, as determined by
STC, of any asset portfolio or portfolios in which the accounts or reserves or
parts of them are treated as being invested and such other matters as STC
considers relevant.
(2)
STC may, for the purpose of adjusting a
contributor’s or former contributor’s account before paying out
the balance at credit in the account, fix a rate for that purpose
only.
(3)
In adjusting accounts or reserves under this
section, STC may fix different rates for accounts or reserves, or parts of
accounts or reserves, that are treated as being invested in different asset
portfolios.
(4)
For the purpose of adjusting accounts and
reserves, STC may allocate any income of the Fund, or any losses, as being
attributable to a particular asset portfolio or portfolios, as it thinks
fit.
s 16: Am 1996 No 39,
Sch 4; 2002 No 111, Sch 4 [3]–[5].
16AAdjustment of employer reserves to take into account death
and disability payments
(1)
STC may obtain actuarial advice on or after 1
July in each year as to the appropriate adjustment to employer reserves in the
Fund to achieve an equitable pooling of liability for payment of employer
contributions to death and disability benefits among all employers in respect
of the preceding financial year.
(2)
STC may adjust the amount currently standing to
the credit or debit of an employer’s reserve in the Fund in accordance
with actuarial advice obtained under this section.
(3)
STC may adjust an employer reserve under this
section despite any other provision of this Act.
(4)
In this section—
death benefit means a
benefit payable under this Act on the death of a contributor or former
contributor.
disability benefit
means a benefit payable under this Act on the ground of permanent mental or
physical incapacity or infirmity of body or mind of a contributor or former
contributor.
s 16A: Ins 2005 No
52, Sch 5 [4].
17Funds, accounts and reserves generally
(1)
There may be credited to any fund, account or
reserve established by or under this Act any amount that is required or
permitted by or under this or any other Act to be credited to
it.
(2)
There may be debited to any fund, account or
reserve established by or under this Act any amount that is required or
permitted by or under this or any other Act to be debited to
it.
18Actuarial investigation
(1)
An investigation as to the state and sufficiency
of the funds established under this Act shall—
(a)
as at the appointed day, and
(b)
as at 30 June 1994 and at the end of each
succeeding period of 3 years,
be made by an actuary or actuaries appointed by
STC.
(2)
Actuaries appointed under this section shall
complete their investigation, and shall report the result to STC, not later
than 6 months after the date as at which the investigation is
made.
(2A)
The report referred to in subsection (2)
must—
(a)
include a statement of the value of the assets of
the Fund, and
(b)
include a statement of any liability for benefit
payments that are not expected to be covered by—
(i)
the assets of the Fund, or
(ii)
any future contributions to, or earnings of, the
Fund, or
(iii)
any guarantee by the Government or by any of its
agencies, or
(iv)
an appropriation in respect of the
Fund.
(3)
STC shall, not later than 1 month after it
receives a report under this section, forward the report to the Minister with
such comments as it thinks fit.
(4)
The Minister may, in relation to a particular
investigation, extend or further extend the period referred to in subsection
(2) if the Minister considers that special circumstances exist to justify an
extension or further extension.
(5)
The Minister may, in relation to a particular
investigation, extend or further extend the period referred to in subsection
(3) if the Minister considers that special circumstances exist to justify an
extension or further extension.
s 18: Am 1991 No 95,
Sch 9 (2); 1993 No 111, Sch 5 (6); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [3];
1999 No 86, Sch 2.5 [1] [2].
Part 5Benefits
36Definitions
For the purposes of this Act—
accrued benefit points,
in relation to a contributor at the contributor’s exit date,
means—
(a)
the maximum benefit points for the contributor,
or
(b)
if the number ascertained by adding together all
the contributed points figures for the contributor is less than the maximum
benefit points for the contributor—that lesser
number.
additional benefit, in
relation to a contributor, means the amount calculated in accordance with the
formula—
where—
L represents the amount to be
ascertained,
S represents the higher of the
contributor’s final salary or the contributor’s final average
salary, and
P represents the prospective benefit
points for the contributor at the contributor’s exit
date.
applicable contribution
period, in relation to a contributor, means a contribution
period that occurs during the period that commences on the contributor’s
entry date and ends on the contributor’s final contribution date, except
where the contributor was not liable to contribute to the Fund in respect of
that contribution period because it occurred during leave without
pay.
average contribution rate per
cent, in relation to a contributor at the
contributor’s exit date, means the lesser of—
(a)
6 per cent, and
(b)
the rate per cent calculated in accordance with
the formula—
where—
R represents the rate
per cent to be ascertained,
S represents the sum of
the rates per cent of salary at which the contributor was liable to pay a
contribution for each applicable contribution period for the contributor,
and
N represents the number
of those applicable contribution periods.
contributed points
figure, in relation to a contributor, means the figure that,
in relation to each applicable contribution period for the contributor, is
calculated in accordance with the formula—
where—
F represents the figure to be
ascertained,
P represents the rate per cent of
salary at which the contributor elected to pay the contribution to the Fund
for that contribution period,
R represents the salary ratio
applicable to the contributor on the first day of that contribution period,
and
N represents the number of
contribution periods in a year.
final average salary, in
relation to a contributor, means the average of the attributed salaries paid
or payable to the contributor at the rates applicable—
(a)
on the contributor’s exit
date,
(b)
on 31 December last preceding the
contributor’s exit date, and
(c)
on 31 December last preceding the 31 December
referred to in paragraph (b).
final contribution
date, in relation to a contributor, means the last day in
respect of which the contributor is liable to contribute to the
Fund.
final
salary, in relation to a contributor, means the rate of
attributed salary paid or payable to the contributor on the
contributor’s exit date.
maximum benefit points,
in relation to a contributor at the contributor’s exit date,
means—
(a)
180, or
(b)
if the number ascertained by the
formula—
where—
M represents the number
to be ascertained,
S represents the sum of
the salary ratios for the contributor in respect of each applicable
contribution period for the contributor, and
N represents the number
of contribution periods in a year,
is less than 180—the number so
ascertained.
prospective benefit
points, in relation to a contributor at the
contributor’s exit date, means—
(a)
the number calculated in accordance with the
formula—
where—
P represents the number
to be ascertained,
C represents the
contributor’s average contribution rate per cent,
R represents the salary
ratio applicable to the contributor’s exit date,
S represents the number
of applicable contribution periods for the contributor that would occur during
the period that commences immediately after the contributor’s final
contribution date and ends immediately before the early retirement age,
and
N represents the number
of contribution periods in a year, or
(b)
if it is a lesser number than that calculated
under paragraph (a)—the number of benefit points that, when added to the
number of the contributor’s accrued benefit points at the exit date,
would produce a number equal to the maximum benefit points that would have
been attributable to the contributor if contributions had continued at the
average contribution rate per cent, the salary ratio had remained constant
until the exit date and the exit date had immediately preceded the early
retirement age.
s 36: Am 1997 No 147,
Sch 1.23.
37Benefit at or after early retirement or on death at or after
early retirement age
(1)
The benefit provided by this section is payable
by STC when a contributor retires from employment with an employer on or after
reaching the early retirement age or dies during employment with an employer
on or after reaching that age and is so payable—
(a)
where the benefit becomes payable on the
contributor retiring—to the contributor,
(b)
where the benefit becomes payable on the death of
the contributor and the contributor is survived by a spouse or de facto
partner—to the contributor’s spouse or de facto partner,
or
(c)
where the benefit becomes payable on the death of
the contributor and the contributor is not survived by a spouse or de facto
partner—to the personal representatives of the contributor or, if
appropriate, in accordance with section 51 (Payment without grant of probate
etc).
Note—
“De facto partner” is defined in
section 21C of the Interpretation Act
1987.
(2)
The benefit provided by this section is an amount
equal to the sum of—
(a)
the amount of the contributor-financed benefit,
and
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
F represents the
contributor’s final average salary, and
A represents the
accrued benefit points for the contributor at the contributor’s exit
date.
(3)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
s 37: Am 1988 No 136,
Sch 1 (3); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [5]; 2010 No 19, Sch 3.100
[2].
38Benefit on death before early retirement
age
(1)
The benefit provided by this section is payable
by STC where a contributor dies before attaining the early retirement age
during employment with an employer and is so payable—
(a)
where the contributor is survived by a spouse or
de facto partner—to the contributor’s spouse or de facto partner,
or
(b)
where the contributor is not survived by a spouse
or de facto partner—to the personal representatives of the contributor
or, if appropriate, in accordance with section 51 (Payment without grant of
probate etc).
(2)
The benefit provided by this section in relation
to a contributor is an amount equal to the sum of—
(a)
the amount of the contributor-financed
benefit,
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
S represents the
higher of the contributor’s final salary or the contributor’s
final average salary, and
A represents the
accrued benefit points for the contributor at the contributor’s exit
date, and
(c)
where an approval under section 20 (Additional
benefit) is in force—the amount of the additional
benefit.
(3)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
s 38: Am 1988 No 136,
Sch 1 (4); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [6] [7].
39Benefit on total and permanent invalidity before early
retirement age
(1)
The benefit provided by this section is payable
by STC to a contributor where, before attaining the early retirement age, the
contributor ceases to be employed by an employer and STC is
satisfied—
(a)
that the contributor’s cessation of
employment was due, directly or indirectly, to the permanent physical or
mental incapacity of the contributor (not caused by any act or default of the
contributor intended to produce that incapacity), and
(b)
that the contributor is, when the contributor
ceases to be employed by the employer, permanently unable, by reason of that
incapacity, to be engaged, or to be employed, in any remunerative occupation
in which, in the opinion of STC, it would otherwise be reasonable to expect
the contributor to engage.
(2)
The benefit provided by this section is an amount
equal to the sum of—
(a)
the amount of the contributor-financed
benefit,
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
S represents the
higher of the contributor’s final salary or the contributor’s
final average salary, and
A represents the
accrued benefit points for the contributor at the contributor’s exit
date, and
(c)
where an approval under section 20 (Additional
benefit) is in force—the amount of the additional
benefit.
(3)
STC is entitled to rely on a certificate by an
employer as to any matter mentioned in subsection (1) (a) if it thinks
fit.
(4)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
s 39: Am 1988 No 136,
Sch 1 (5); 1993 No 111, Sch 5 (14); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [8]
[9].
40Benefit on partial and permanent invalidity before early
retirement age
(1)
The benefit provided by this section is payable
by STC to a contributor where, before attaining the early retirement age, the
contributor ceases to be employed by an employer and STC is
satisfied—
(a)
that the contributor’s cessation of
employment was due, directly or indirectly, to the permanent physical or
mental incapacity of the contributor (not caused by any act or default of the
contributor intended to produce that incapacity), and
(b)
that the contributor is, when the contributor
ceases to be employed by the employer, permanently unable, by reason of that
incapacity, to perform the duties that the contributor was required to perform
before the contributor suffered the incapacity.
(2)
The benefit provided by this section for a
contributor is an amount equal to the sum of—
(a)
the amount of the contributor-financed benefit,
and
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
S represents the
higher of the contributor’s final salary or the contributor’s
final average salary, and
A represents the
accrued benefit points for the contributor at the contributor’s exit
date.
(3)
STC is entitled to rely on a certificate by an
employer as to any matter mentioned in subsection (1) if it thinks
fit.
(4)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
s 40: Am 1988 No 136,
Sch 1 (6); 1993 No 111, Sch 5 (15); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7
[10] [11].
41Benefit on resignation, dismissal or discharge before early
retirement age
(1)
The benefit provided by this section is payable
by STC to a contributor—
(a)
if, before attaining the early retirement age,
the contributor, having resigned, or having been dismissed or discharged, from
employment with an employer, elects under section 43 (1) to take that benefit
and no other benefit is payable under this Act, or
(b)
if the amount of that benefit is less than the
prescribed amount referred to in section 43 (1).
(2)
The benefit provided by this section for a
contributor for whom the period commencing on entry date and ending on exit
date is 10 years or more is an amount equal to the sum of—
(a)
the amount of the contributor-financed benefit,
and
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
W represents the
amount to be ascertained,
V represents the
period (expressed in years with any fractional part of a year being calculated
on a basis of complete contribution periods) that commenced on the
contributor’s entry date and ended on the contributor’s exit
date,
R represents the
amount of the contributor-financed benefit,
A represents the
accrued benefit points for the contributor at the contributor’s exit
date, and
Y represents the
number ascertained by adding together all the contributor’s contributed
points figures calculated in relation to the contributor for the applicable
contribution periods for the contributor.
(2A)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
(3)
The benefit provided by this section for a
contributor for whom the period commencing on entry date and ending on exit
date is less than 10 years is the amount of the contributor-financed
benefit.
s 41: Am 1988 No 136,
Sch 1 (7); 1991 No 95, Sch 9 (9); 1996 No 39, Sch 4; 1997 No 42, Sch 1.7
[12].
42Benefit on retrenchment before early retirement
age
(1)
The benefit provided by this section is payable
by STC to a contributor if, before attaining the early retirement
age—
(a)
the contributor is retrenched,
and
(b)
no other benefit is payable under this Act,
and
(c)
STC is provided with a certificate from the
contributor’s employer confirming that the contributor has been
retrenched and specifying the ground for the
retrenchment.
(2)
The benefit provided by this section for a
contributor is an amount equal to the sum of—
(a)
the contributor-financed benefit,
and
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
S represents the
higher of the contributor’s final salary or the contributor’s
final average salary, and
A represents the
accrued benefit points for the contributor at the contributor’s exit
date.
(2A)
If STC makes a determination under section 45A in
relation to a benefit to be provided by this section, the amount of that
benefit is reduced by the amount specified in STC’s
determination.
(3)
s 42: Am 1988 No 136,
Sch 1 (8); 1989 No 107, Sch 1; 1991 No 94, Sch 1; 1991 No 95, Sch 9 (10); 1992
No 35, Sch 2; 1996 No 39, Sch 4; 1997 No 42, Sch 1.7 [13]
[14].
42ABenefit on attaining 65 or 70
(1)
A contributor who attains 70 years of age must be
paid any benefit to which the contributor would be entitled on retirement at
that age but may elect to preserve the whole of the
benefit.
(2)
(2A)
An employee may elect, at any time on or after
attaining 65 years and before attaining 70 years—
(a)
to be paid any benefit to which the employee is
entitled at the time of the election, or
(b)
to preserve the whole of the
benefit,
even though the employee is not
retired.
(3)
STC is to adjust the amount of a benefit payable
under this section, having regard to any adjustment of a contributor’s
account under section 16.
(4)
If an amount is preserved under this section, it
is payable in the same way as a benefit under section
43.
(5)
A person paid a benefit under this section is not
entitled—
(a)
to any further benefit under this Act in respect
of the same period of service, or
(b)
to contribute to the Fund or to accrue any
further benefits under this Act.
s 42A: Ins 1992 No
35, Sch 1. Am 1993 No 42, Sch 4; 1993 No 111, Sch 5 (16); 1996 No 39, Sch 4;
1997 No 149, Sch 1.6 [7]–[10].
42AADeferral of benefit on retrenchment before early
retirement age
(1)
A contributor who becomes entitled to be paid a
benefit under section 42 may elect—
(a)
to take the benefit as provided by that section,
or
(b)
to defer in the Fund a benefit calculated in the
same way as the benefit provided by that section.
(2)
The provisions of section 43 (except section 43
(6)) apply in relation to a benefit deferred under this section in the same
way as they apply in relation to a benefit deferred under that
section.
(3)
s 42AA: Ins 1992 No
35, Sch 2. Am 1993 No 111, Sch 5 (17); 1998 No 144, Sch 2.4 [7]
[8].
42ABCompulsory preservation of benefits after changeover
day
(1)
STC must, when a benefit becomes payable under
this Act (including a benefit provided by section 42AA, 43 or 43AA), preserve
all or so much of the benefit as is required to be preserved so as to be
consistent with a relevant Commonwealth superannuation
standard.
(2)
For the purpose of preserving a benefit under
this section, STC may convert to a lump sum so much of a superannuation
allowance as is required to be preserved. The remainder of the superannuation
allowance is to be dealt with as otherwise required or permitted by or under
this Act.
(3)
The amount of the benefit to be preserved in
respect of a former contributor for the purposes of subsection (1) is as
determined by STC, after obtaining actuarial advice.
(4)
The amount of a benefit that must be preserved
for the purposes of subsection (1) is to be preserved in the Fund and is to be
adjusted, having regard to any adjustment of the contributor’s account
under section 16 or is to be preserved under section
42AD.
ss 42AB–42AD:
Ins 1998 No 144, Sch 2.4 [9].
42ACPayment of compulsorily preserved
benefit
(1)
The whole or part of a benefit preserved under
section 42AB is payable by STC 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 42AB must be paid by STC, if it is required to be paid under a
relevant Commonwealth superannuation standard.
(3)
The benefit is payable—
(a)
unless the former contributor has died—to
the former contributor, or
(b)
if the former contributor 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 contributor has died and is not
survived by a spouse or de facto partner—to the personal representatives
of the former contributor or, if appropriate, in accordance with section 51
(Payment without grant of probate etc).
ss 42AB–42AD:
Ins 1998 No 144, Sch 2.4 [9].
42ADPreserved benefits
(1)
Any amounts preserved by STC under section 42AB
may be preserved in such funds, accounts or reserves as STC determines,
whether established under this Act or the Superannuation
Administration Act 1996 or for the purposes of any other
superannuation scheme administered by STC.
(2)
Any such preserved amounts payable by STC under
section 42AB are to be paid from the appropriate fund, account or reserve
referred to in this section.
ss 42AB–42AD:
Ins 1998 No 144, Sch 2.4 [9].
43Deferred benefit
(1)
A contributor who resigns, or is dismissed or
discharged, from employment with an employer before attaining the early
retirement age may elect to take the benefit provided by section 41 or (if
that benefit, including any interest paid by STC, is not less than the
prescribed amount) to make provision for a benefit provided by this
section.
(1A)
A contributor who is under 65 years of age may,
instead of taking the benefit payable under section 37, elect to make
provision for a benefit provided by this section (but only if that benefit,
including any interest paid by STC, is not less than the prescribed
amount).
(2)
Where an election to make provision for a benefit
provided by this section made by a contributor under subsection (1) or (1A)
takes effect, a benefit is not payable to, or in relation to, the contributor
under any provision of this Act other than this section.
(2A)
A contributor who, being entitled to make an
election under subsection (1) or (1A), does not make such an election before
the end of the prescribed period is taken to have elected to have made
provision for a benefit provided by this section.
(3)
The benefit provided by subsection (6) or section
42A must be paid by STC—
(a)
if the former member—
(i)
elected under subsection (1) or section 30A, or
is taken under subsection (2A) to have elected, to defer the benefit,
and
(ii)
attains the early retirement age,
and
(iii)
applies to STC in writing for payment of the
benefit, or
(b)
if the former member—
(i)
elected under subsection (1A) or section 42A to
defer the benefit, and
(ii)
applies to STC in writing for payment of the
benefit, or
(c)
if the former member dies without making an
application for payment of the benefit, or
(d)
except in the case of a benefit provided under
subsection (1A) or section 42A—on STC being satisfied that the former
member is incapable, from infirmity of body or mind, of being employed in any
remunerative occupation in which, in the opinion of STC, it would otherwise be
reasonable to expect the former member to engage, or
(e)
on STC being satisfied that the former member has
attained the age of 65 years and is employed for less than 10 hours a week,
or
(f)
on STC being satisfied that the former member has
attained the age of 70 years even though the former member is employed for
more than 10 but less than 30 hours a week,
(g)
on STC being satisfied that the former member has
retired from the work force.
(3A)
The benefit provided by subsection (6) is not
payable under subsection (3) to a person who elected to provide for the
benefit under section 30A unless the additional requirements of section 30A
(5) (d) are satisfied.
(4)
Subject to subsection (3), the benefit provided
by subsection (6) is payable—
(a)
except where the contributor has died, to the
contributor,
(b)
if the contributor has died and is survived by a
spouse or de facto partner, to the spouse or de facto partner,
or
(c)
if the contributor has died but is not survived
by a spouse or de facto partner—
(i)
to the contributor’s personal
representatives, or
(ii)
where section 51 (Payment without grant of
probate etc) applies and STC has made a decision under subsection (1) of that
section, in accordance with subsection (2) of that
section.
(5)
The benefit provided by subsection (7) is payable
to a contributor by STC if—
(a)
the contributor has elected to take that benefit,
and
(b)
the election takes effect before the benefit
provided by subsection (6) becomes payable to or in respect of the
contributor.
(6)
Subject to subsection (6A), the benefit provided
by this subsection is an amount equal to the sum of—
(a)
the contributor-financed benefit at exit date,
and
(b)
an amount of employer-financed benefit calculated
in accordance with the formula—
where—
E represents the
amount to be ascertained,
F represents the
contributor’s final average salary,
A represents the
accrued benefit points for the contributor at the contributor’s exit
date,
K represents a
discount factor determined by STC after seeking actuarial advice,
and
n represents the
period (expressed in years with any fractional part of a year being calculated
on the basis of complete contribution periods) between the contributor’s
age at exit date and the early retirement age,
as adjusted under subsection (7B).
(6A)
For the purposes of calculating the benefit
provided under subsection (6) in the case of a contributor who has attained
the early retirement age, K in the formula in subsection (6)
is to equal 1.
(7)
The benefit provided by this subsection is an
amount equal to the amount of the benefit under section 41 or 42 that would
have been payable to the contributor at the contributor’s exit date if
the contributor had not made the election under subsection (1), as adjusted
under subsection (7B).
(7A)
If STC makes a determination under section 43D or
45A in relation to a benefit to be provided by this section, the amount of
that benefit is reduced by the amount specified in STC’s
determination.
(7B)
STC is to adjust the amount of a benefit payable
under this section, having regard to any adjustment of a contributor’s
account under section 16.
(8)
A contributor (other than a contributor who is an
executive officer) who becomes a contributor to another superannuation scheme
while employed by the same employer—
(a)
is required to make provision for a benefit
provided by this section despite anything to the contrary in subsection
(1),
(b)
shall be deemed to have elected under subsection
(1) to make provision for that benefit on becoming a contributor to that other
superannuation scheme, and
(c)
is not entitled to elect to take the benefit
provided by subsection (7) while employed by that same
employer.
(9)
s 43: Am 1988 No 136,
Sch 1 (9); 1989 No 107, Sch 1; 1991 No 95, Sch 9 (11); 1992 No 35, Schs 1, 2;
1993 No 42, Schs 1, 4; 1993 No 111, Sch 5 (18); 1994 No 32, Sch 2; 1996 No 39,
Sch 4; 1996 No 92, Sch 1.8 (4) (5); 1997 No 42, Sch 1.7 [15]; 1997 No 149, Sch
1.6 [11] [12]; 1998 No 144, Sch 2.4 [10]; 1999 No 86, Sch 1.7 [13]; 2005 No
52, Sch 5 [5].
43AADeferral of benefit for contributors aged 55 years and
over in certain circumstances
Part 2 of Schedule 5 has effect with respect to
the deferral of the benefit of a contributor of or above the age of 55 years
in the circumstances specified in that Part.
s 43AA: Ins 1990 No
99, Sch 3. Am 1993 No 42, Sch 1; 1998 No 144, Sch 2.4 [11]; 2005 No 52, Sch 5
[1] (am 2005 No 98, Sch 2.58).
43AAA
s 43AAA: Ins 1992 No
102, Sch 5 (2). Am 1993 No 111, Sch 5 (19); 1996 No 39, Sch 4; 1997 No 42, Sch
1.7 [16] [17]. Rep 1998 No 144, Sch 2.4 [12].
43APower of STC to purchase annuities etc out of benefit
payable under this Act
Whenever a benefit becomes payable to or in
respect of a contributor under this Act, STC must, if requested to do
so—
(a)
by the contributor, or
(b)
where the contributor has died, by the spouse or
de facto partner or personal representatives of the contributor, as the case
requires,
apply the benefit, or such part of it as is specified by
the contributor, spouse or de facto partner or personal representatives, in
purchasing for the contributor or, as the case may be, for the spouse or de
facto partner or the beneficiaries of the contributor’s estate, a right
to an annuity or other form of pension from a person nominated by the
contributor, spouse or de facto partner or personal
representatives.
s 43A: Ins 1989 No
229, Sch 1. Am 1996 No 39, Sch 4.
43ABCompeting claims for spouses’ or de facto
partners’ benefits
(1)
This section applies to a benefit which is
payable to the spouse or de facto partner of a deceased contributor or
deceased former contributor.
(2)
If a benefit would be payable to more than one
person because a deceased contributor or deceased former contributor has left
more than one spouse or de facto partner, then, despite any other provision of
this Act—
(a)
the benefit is payable in accordance with a
determination made by STC, and not otherwise, and
(b)
the total amount of benefit payable to those
persons at any time is not to exceed the amount of benefit that would be
payable if there were only one spouse or de facto
partner.
(3)
For the purposes of subsection (2) (a), STC may
determine in relation to a benefit—
(a)
that the benefit is not payable to such of the
persons concerned as it specifies, or
(b)
that the amount of the benefit is to be
apportioned between the persons concerned in such manner as it
specifies.
(4)
STC may withhold the payment of any part of a
benefit—
(a)
until after 30 days after the death of the
contributor or former contributor in respect of which the benefit is payable,
or
(b)
if an application has been made for the benefit
by more than one person, until it is satisfied that only one of those persons
is entitled to the benefit or until a determination is made in relation to the
matter by STC under this section.
(5)
If, after 30 days from the death of a contributor
or former contributor, the whole or part of a benefit is paid to a spouse or
de facto partner of the deceased contributor or deceased former
contributor—
(a)
a benefit is not payable to any other spouse or
de facto partner of the deceased contributor or deceased former contributor if
the whole of the benefit is paid, or
(b)
so much of a benefit as is equal to the amount of
the benefit so paid is not payable to any other spouse or de facto partner of
the deceased contributor or deceased former contributor if part of the benefit
is paid.
(6)
For the purposes of subsection (5), an amount
paid in good faith by STC to a person purporting to be the spouse or de facto
partner of a deceased contributor or deceased former contributor is taken to
have been paid to the spouse or de facto partner of the contributor or former
contributor.
(7)
If, after 30 days from the death of a contributor
or former contributor, any amount is paid under this Act to the
contributor’s personal representatives or to such other persons as STC
may determine, any benefit which is payable to the spouse or de facto partner
of the contributor or former contributor is to be reduced by the amount so
paid.
s 43AB: Ins 1993 No
111, Sch 5 (20). Am 1996 No 39, Sch 4.
43BRelease of benefit on grounds of severe financial
hardship
(1)
STC may, on the written election of a
contributor, or former contributor who has provided for a deferred benefit,
release to the contributor or former contributor a benefit on the grounds of
the contributor’s or former contributor’s severe financial
hardship.
(2)
STC may release the benefit only if STC is
satisfied that the circumstances are such that a benefit would be payable on
the grounds of severe financial hardship if the contributor or former
contributor were a member of a regulated superannuation fund within the
meaning of the Superannuation Industry (Supervision) Act
1993 of the Commonwealth.
(3)
The amount paid—
(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 accrued or
deferred benefit under this Act that would be payable to the contributor or
former contributor, if the contributor or former contributor were eligible to
be paid such a benefit.
(4)
A contributor or former contributor may, at any
time before the release of a benefit under this section, vary or revoke an
election under this section.
(5)
An amount may not be paid under this section
unless any applicable requirements of any regulations made under section 43D
have been complied with.
s 43B: Ins 1997 No
149, Sch 1.6 [13]. Am 2000 No 100, Sch 5 [2]–[8].
43CRelease of benefit on compassionate
grounds
(1)
STC may, on the written election of a
contributor, or former contributor who has provided for a deferred benefit,
release to the contributor or former contributor a benefit on compassionate
grounds.
(2)
STC may release the benefit only if STC is
satisfied that the circumstances are such that the Regulator (within the
meaning of the Superannuation Industry (Supervision) Act
1993 of the Commonwealth) would be entitled to determine
that the amount could be released on compassionate grounds if the contributor
or former contributor were a member of a regulated superannuation fund within
the meaning of the Superannuation Industry (Supervision) Act
1993 of the Commonwealth.
(3)
The amount paid—
(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 accrued or
deferred benefit under this Act that would be payable to the contributor or
former contributor, if the contributor or former contributor were eligible to
be paid such a benefit.
(4)
A contributor or former contributor may, at any
time before the release of a benefit under this section, vary or revoke an
election under this section.
(5)
An amount may not be paid under this section
unless any applicable requirements of any regulations made under section 43D
have been complied with.
s 43C: Ins 1997 No
149, Sch 1.6 [13]. Am 2000 No 100, Sch 5 [9]–[16].
43DEffect on benefits
(1)
Regulations may be made for or with respect to
the payment and calculation of future benefits where part of a benefit has
been released to a person under section 43B or 43C.
(2)
Without limiting subsection (1), regulations may
be made for or with respect to the following matters—
(a)
the adjustment by STC of a benefit that is paid
to a person to whom an amount has been previously released under section 43B
or 43C, including interest payable in respect of the amount
released,
(b)
the obtaining of consent to any such
adjustment,
(c)
the obtaining of actuarial advice by STC for the
purpose of any such adjustment,
(d)
enabling the payment to STC of amounts to set-off
amounts released under section 43B or 43C against benefits that would
otherwise accrue,
(e)
any matter ancillary to or consequential on the
matters set out in paragraphs (a)–(d).
s 43D: Ins 1997 No
149, Sch 1.6 [13]. Subst 2000 No 100, Sch 5 [17].
44Application for payment of benefit
(1)
An application for payment of a benefit to, or in
relation to, a contributor shall be made in writing in a form approved by STC
for the purpose, shall be signed by the applicant and shall be accompanied
by—
(a)
except in the case of a benefit payable under
section 42AC, 43, 43B or 43C—a certificate by the contributor’s
employer at the contributor’s exit date, specifying the exit date and
the manner of cessation of the contributor’s employment and such other
particulars as may be prescribed, and
(b)
such other documents as STC reasonably requires
in order to determine the application.
(2)
A benefit shall not be paid by STC before
subsection (1) has been complied with.
(3)
STC is entitled to act on the information
provided pursuant to subsection (1).
s 44: Am 1991 No 95,
Sch 9 (12); 1996 No 39, Sch 4; 1997 No 149, Sch 1.6 [14]; 1998 No 144, Sch 2.4
[13].
45Interest
(1)
STC may, when paying a benefit under this Act,
pay interest at such rates, for such periods and in such circumstances as in
its absolute discretion it thinks appropriate.
(2)
In paying interest under this section, STC may
have regard to the treatment under section 16 of an account or reserve, or any
part of an account or reserve, from which any part of the benefit is
paid.
s 45: Am 1996 No 39,
Sch 4; 2002 No 111, Sch 4 [6].
45APower of STC to reduce benefits to offset certain tax
liabilities
(1)
Whenever—
(a)
a right to a benefit under this Act accrues to or
in respect of a contributor or former contributor, and
(b)
STC has paid or is liable to pay income tax under
a Commonwealth taxation law in respect of employers’ contributions to
the Fund, and
(c)
a portion of that tax is referable to the
employer-financed portion of that benefit,
STC must, subject to subsection (2)—
(d)
calculate the amount necessary to offset
STC’s liability to pay tax so far as it is referable to the
employer-financed portion of that benefit, and
(e)
accordingly make a determination reducing the
employer-financed portion of that benefit by the amount so
calculated.
(1AA)
Subsection (1) does not apply to an income tax
liability if an amount equal to the liability was deducted under section 12
(3) (a1) in respect of the liability.
(1A)
Whenever—
(a)
a right to a benefit under this Act accrues to or
in respect of a contributor or former contributor, and
(b)
STC has paid or is liable to pay an amount of
superannuation contributions surcharge in respect of the employer
contributions paid or payable to the Fund, or in respect of contributions made
under the State Authorities
Non-contributory Superannuation Act 1987, on behalf of the
contributor or former contributor,
STC must determine in writing the surcharge deduction
amount that, in the opinion of STC, 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.
(1B)
In determining the surcharge deduction amount in
respect of a benefit payable to a contributor or former contributor, STC may
have regard to any or all of the following matters—
(a)
the amount of superannuation contributions
surcharge payable or paid by STC in respect of the contributor or former
contributor,
(b)
the amount by which the contributor’s or
former contributor’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 contributor
or former contributor, were assumed to be likely to be payable to the person
on his or her ceasing to be an employee,
(e)
whether the contributor or former contributor has
qualified for a benefit that includes an employer-financed
component,
(f)
the amount of any payments under section
52A,
(g)
any other matter STC considers
relevant.
(1C)
The surcharge deduction amount determined by STC
must not exceed—
(a)
an amount that is 15% of the employer-financed
portion of that part of the benefit payable to the contributor or former
contributor 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 contributor or former contributor
accrued.
(1D)
For the purpose of determining the surcharge
deduction amount, STC may obtain actuarial advice or advice from any other
persons, as STC thinks fit.
(1E)
The balance of any additional amount payable by
STC for superannuation contributions surcharge in respect of a contributor or
former contributor, after payment of the balance of the relevant surcharge
debt account, is to be paid by STC from the Fund under section 11 (4) and
debited to the appropriate employer reserve.
(2)
Subsection (1) does not authorise the reduction
of a benefit, unless—
(a)
the benefit is of a kind prescribed by the
regulations for the purpose of this section, and
(b)
the method of calculating the reduction is so
prescribed, and
(c)
the reduction is calculated according to that
method.
(3)
Subsection (1A) does not authorise the reduction
of a benefit as a result of a liability for superannuation contributions
surcharge unless the benefit is of a kind prescribed by the regulations for
the purposes of this subsection.
(3A)
If STC determines a surcharge deduction amount in
respect of a contributor or former contributor under this section, STC may, on
the application of the contributor or former contributor, apply the benefit
that accrues to or in respect of the contributor or former contributor under
the State Authorities Non-contributory Superannuation Act
1987 toward payment of the surcharge deduction amount, and
make a determination reducing the benefit payable under that Act accordingly.
In such a case, STC may make a determination reducing the benefit payable
under this Act to the extent necessary (if any) to pay the balance of the
surcharge deduction amount.
(4)
In this section—
surcharge debt
account, in relation to a contributor or former contributor,
means the surcharge debt account kept for the contributor or former
contributor (while an employee) under section 16 of the Superannuation
Contributions Tax (Assessment and Collection) Act 1997 of
the Commonwealth.
(5)
Despite subsection (1A), the benefit of a former
contributor who has commenced to be paid that benefit may be adjusted by STC
in accordance with the regulations if the former contributor 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 contributor.
(6)
The regulations may make provision for or with
respect to the following—
(a)
the circumstances in which STC may or may not pay
superannuation contributions surcharge on behalf of a former
contributor,
(b)
adjusting the amounts of benefits or paying
amounts in relation to a surcharge deduction amount or an assessment of
superannuation contributions surcharge received by a former contributor
before, on or after the commencement of this
subsection.
(7)
Without limiting subsection (6), the regulations
may make provision for the payment by STC of an amount of additional surcharge
payable by a former contributor above the amount determined under subsection
(1C).
s 45A: Ins 1988 No
136, Sch 1 (10). Am 1996 No 39, Sch 4; 1997 No 149, Sch 1.6 [15] [16]; 2000 No
100, Sch 5 [18]; 2002 No 110, Sch 6 [1] [2]; 2006 No 53, Sch 1.4
[27].
45AARestoration of death benefit previously reduced to offset
contribution tax liabilities
(1)
STC may, for the purposes of obtaining a
deduction from assessable income under section 295-485 of the Income Tax
Assessment Act 1997 of the Commonwealth, increase an
employer-financed portion of a benefit payable or paid under this Act on the
death of a contributor or former contributor previously reduced under section
45A (1).
(2)
The amount of the increase is to be the amount
determined by STC, after obtaining actuarial advice, as the amount of increase
required to obtain the deduction referred to in subsection
(1).
(3)
s 45AA: Ins 2005 No
52, Sch 5 [6]. Am 2010 No 60, Sch 3 [1] [2].
45BPower of STC to reduce benefits for no-TFN
tax
(1)
This section applies to a benefit
if—
(a)
a right to the benefit accrues under this Act to
or in respect of a contributor or former contributor, and
(b)
STC has paid or is liable to pay no-TFN tax in
respect of employer contributions to the Fund, and
(c)
a portion of that tax is referable to the
employer-financed portion of that benefit, and
(d)
the benefit is of a kind prescribed by the
regulations for the purposes of this section.
(2)
The amount of the benefit is reduced by the
amount necessary to offset STC’s liability to pay no-TFN tax so far as
it is referable to the employer-financed portion of that
benefit.
(3)
The amount of the reduced benefit is to be
determined by STC after obtaining actuarial advice.
(4)
A contributor or former contributor may elect to
have his or her SANCS benefit reduced instead of the benefit to which this
section applies if the SANCS benefit is payable to the contributor or former
contributor. On an election being made, the SANCS benefit is reduced
accordingly and the benefit to which this section applies is reduced only if
it is necessary to do so to meet any shortfall in the amount of
offset.
(5)
The regulations may provide for the establishment
of debt accounts in respect of contributors or former contributors for the
purposes of this section.
(6)
In this section—
employer
contribution includes a salary sacrifice
contribution.
employer-financed
portion of a benefit includes any part of the benefit
financed by a salary sacrifice contribution.
no-TFN tax means an amount
equal to the difference between the amount of—
(a)
income tax payable by STC under the Income Tax
Assessment Act 1997 of the Commonwealth on employer
contributions to the Fund for a contributor if there is a failure by the
contributor to provide information about his or her tax file number to STC,
and
(b)
income tax that would be so payable if the
information about the tax file number was provided.
SANCS benefit means a
benefit that accrues to or in respect of a contributor or former contributor
who is an employee or former employee under the State Authorities Non-contributory Superannuation Act
1987.
s 45B: Ins 1988 No
136, Sch 1 (11). Am 1991 No 95, Sch 9 (3); 1996 No 39, Sch 4. Rep 1997 No 42,
Sch 1.7 [18]. Ins 2010 No 60, Sch 3 [3].
45C
s 45C: Ins 1991 No
95, Sch 9 (4). Am 1996 No 39, Sch 4. Rep 1997 No 42, Sch 1.7
[19].
45DCompliance with superannuation guarantee
legislation
(1)Minimum benefits
STC must, after obtaining actuarial advice,
determine what the minimum employer-financed benefit would have to be to
ensure that there is no superannuation guarantee
shortfall.
(2)Increase in benefits
An employer-financed benefit provided by an
employer is, despite any other provision of this or any other Act, not to be
less than the minimum benefit determined under subsection (1). The benefit
that would otherwise be payable under this Act is increased to the extent
necessary for the purposes of complying with this
section.
(3)Increase in benefit to be paid from non-contributory
scheme
The amount of any increase in benefit is to be
debited by STC from the employer reserve of the employer concerned established
under the State Authorities
Non-contributory Superannuation Act
1987.
(4)Definition
In this section, employer-financed
benefit means the sum of the employer-financed benefit under
this Act, any basic benefit under the State Authorities
Non-contributory Superannuation Act 1987 and any
employer-financed benefit of a kind provided by the State Authorities Non-contributory Superannuation Act
1987.
s 45D: Ins 1992 No
102, Sch 5 (3). Am 1996 No 39, Sch 4.
45EApplication of section 45D to period from
1.7.1992
A benefit that is—
(a)
preserved under this Act after 1 July 1992 and
before the commencement of the First State Superannuation Act
1992, or that is paid after 1 July 1992 and before that
commencement, or
(b)
is preserved under section
2B,
is to be adjusted by STC in accordance with section
45D.
s 45E: Ins 1992 No
102, Sch 5 (3). Am 1996 No 39, Sch 4.
Part 6Miscellaneous
46Employers and employees
(1)
The Governor may, by order published on the NSW
legislation website—
(a)
amend Schedule 1 by inserting the name of an
organisation or corporation or a description of a class of organisations or
corporations, or by transferring such a name or description from one Part of
that Schedule to another Part,
(b)
amend Schedule 1 by omitting the name of an
employer that has changed its name and inserting instead the new name of the
employer,
(c)
amend Schedule 1 by omitting the name of an
employer that has ceased to exist but has been replaced as an employer by
another organisation or corporation and by inserting instead the name of that
other organisation or corporation,
(d)
amend Schedule 1 by omitting the name of an
employer that has ceased to exist and is not referred to in paragraph
(c),
(d1)
amend Schedule 1 by omitting the name of an
employer if the employer no longer employs any employees who are
contributors,
(e)
amend Schedule 1 by adding a Part for the
purposes of paragraph (a), or
(f)
amend Schedule 2.
(1A)
The Governor may, by order published on the NSW
legislation website, make an order amending Schedule 1 by inserting, in
relation to an employer listed in Schedule 1, such limitations as are
specified in the amendment.
(1B)
An order under subsection (1A) may not impose
limitations that operate to the prejudice of an existing
contributor.
(2)
An order under subsection (1), and any other
order revoking or varying such an order, may be made—
(a)
to take effect on and from a day specified in the
order, whether or not the day specified is earlier than the day of publication
of the order, and
(b)
to effect the amendment to which it relates with
such limitations as are specified in the amendment, being limitations that do
not operate to the prejudice of an existing
contributor.
s 46: Am 1997 No 149,
Sch 1.6 [17] [18]; 2009 No 56, Sch 4.65.
47Employer to provide information
(1)
An employer shall submit to STC such information
or evidence relating to employees of the employer who may elect to become, or
are, contributors as STC requires.
(2)
Where an employer fails to comply with subsection
(1) in relation to an employee or contributor, STC may—
(a)
refuse an application by an employee to
contribute for the additional benefit if the information sought is relevant to
such an application, or
(b)
defer payment of a benefit to, or in relation to,
a contributor where the information sought is relevant to the right to receive
the benefit.
s 47: Am 1996 No 39,
Sch 4.
48Employee or claimant to provide
information
(1)
STC may require an employee or a claimant for
payment of a benefit under this Act—
(a)
to provide STC with specified information or
evidence referred to in subsection (2),
(b)
to provide STC with an authority to obtain from a
third person any such information or evidence, or
(c)
in the case of a claimant for a benefit under
section 39 or 40—to undergo one or more medical
examinations.
(2)
A requirement under subsection (1) may be made
only—
(a)
in the case of an employee—in relation to
information or evidence that is relevant to the assessment of an application
by the employee to be covered for the additional benefit,
or
(b)
in the case of a claimant for payment of a
benefit—in relation to information, evidence or a medical examination
that is relevant to the assessment of an application made by the claimant for
payment of the benefit.
(3)
Where—
(a)
the employee or claimant to whom a requirement
under subsection (1) relates fails to comply with the requirement or, in
purported compliance with the requirement, makes or provides an untrue
statement, or
(b)
a person referred to in subsection (1) (b) fails
to provide information or evidence that STC has been authorised to obtain from
the person or, in purported compliance with the request by STC for the
information or evidence, makes or provides an untrue
statement,
STC may—
(c)
where the information or evidence is required in
relation to an application to contribute for the additional
benefit—refuse the application, or
(d)
where the information is required in relation to
a claim for a benefit—take such action in relation to the benefit as, in
the opinion of STC, would place the claimant as nearly as possible in the same
position as the claimant would be if the information or evidence had been
provided or the medical examination made or if the statement had not been
untrue.
(3A)
Nothing in this section prevents STC from
deferring, for such time as it thinks fit, consideration of an application to
contribute for a benefit or a claim for payment of a benefit if it has not
received the information or evidence required by STC under subsection
(1).
(4)
For the purposes of this section, untrue, in relation to a
statement, includes—
(a)
misleading in the form and context in which the
statement appears, and
(b)
misleading by reason of the omission from the
statement of matter that is material.
s 48: Am 1991 No 95,
Sch 9 (13); 1993 No 42, Sch 4; 1996 No 39, Sch 4.
49Making of elections and applications
(1)
An election or application under this Act shall
be in writing signed by the person entitled to make the election or
application.
(2)
An election or application under this Act is not,
subject to this section, validly made unless it is received in the office of
STC—
(a)
where, by or under this Act (paragraph (b)
excepted), a day is specifically prescribed for the receipt in the office of
STC of an election or application of that class—not later than that day,
or
(b)
in any other case—not later than the
expiration of the period of 2 months that next succeeds the vesting of the
right to make the election or application.
(3)
An election or application under this Act takes
effect—
(a)
where, by or under this Act (paragraph (b)
excepted), a day is specifically prescribed for the taking effect of an
election of the same class—on that day, or
(b)
in any other case—on a day determined by
STC, being a day that is not earlier than the date of receipt of the election
or application in the office of STC.
(4)
An election or application under this Act may,
with the approval of STC, be amended or revoked subject to such conditions as
STC may impose, which may include—
(a)
in the case of an amendment of an
election—conditions as to the day or days on which, or the manner in
which, the election is to take effect, and
(b)
in the case of revocation of an
election—the day on which the revocation takes
effect.
(5)
Where—
(a)
an election or application is not received in the
office of STC within the time prescribed by subsection (2) for the receipt of
the election or application, and
(b)
STC is satisfied that, in all the circumstances
of the case, it is desirable that the election or application should be
accepted,
STC may, subject to such terms and conditions as it may
impose, accept the election or application and deal with it as if it had been
received within the time so prescribed.
(6)
Where STC is satisfied that, in all the
circumstances of the case, it is desirable that an election or application
should take effect on a day that is earlier than the date of receipt of the
election or application in the office of STC—
(a)
STC may, subject to such terms and conditions as
it may impose, determine that the election or application shall be deemed to
have taken effect on such an earlier day determined by STC,
and
(b)
the election or application takes effect
accordingly.
s 49: Am 1996 No 39,
Sch 4.
50Assignment etc of benefit
(1)
A purported assignment of, or purported charge
over, a benefit is void.
(2)
Where, but for this subsection, a benefit would
pass by operation of law to a person other than a person to whom the benefit
is payable under this Act, the benefit does not so pass.
(3)
A benefit payable on the death of a contributor
is not an asset in the contributor’s estate that is applicable in
payment of the debts and liabilities of the deceased.
(4)
Nothing in this section prevents STC from making,
at the request of a person to whom an amount by way of a benefit is payable, a
payment of the whole or a part of the amount on behalf of the
person.
(5)
Any payment made under subsection (4) shall be
deemed to have been made to the person entitled to the
benefit.
s 50: Am 1996 No 39,
Sch 4.
51Payment without grant of probate etc
(1)
Where a person dies and—
(a)
a benefit or family law superannuation payment is
or becomes payable from the Fund in relation to the
deceased,
(b)
production to STC of probate of the will, or
letters of administration of the estate, of the deceased has not been
arranged, and
(c)
STC has not, within the period of 3 months that
next succeeds the death of the deceased, received a notice of intention to
apply for a grant of probate of the will, or letters of administration of the
estate, of the deceased,
STC may, if it so decides, make a payment of the whole
or any part of the benefit or family law superannuation payment in accordance
with subsection (2), being a payment that does not exceed $50,000 or, where
some other amount is prescribed for the purposes of this section, that other
amount.
(2)
Where STC makes a decision under subsection (1),
STC may—
(a)
pay the whole or any part of the amount of the
benefit or family law superannuation payment to an eligible person within the
meaning of Chapter 3 of the Succession Act
2006,
(b)
after paying the funeral expenses of the deceased
or reimbursing a person who has paid those expenses—pay the whole or any
part of the balance to any person referred to in paragraph (a),
or
(c)
in special circumstances, pay the whole or any
part of the amount of the benefit or family law superannuation payment, or the
balance referred to in paragraph (b), to some other
person.
(3)
Where a contributor or former contributor or a
non-contributor spouse dies and STC is of the opinion that proceedings might
be instituted under Chapter 3 of the Succession Act
2006 in relation to the estate, or notional estate, of the
deceased, STC may, despite any other provision of this Act, pay to the
personal representatives of the deceased any benefit or family law
superannuation payment that, but for this subsection, would have been paid to
some other person.
s 51: Am 1996 No 39,
Sch 4; 2003 No 77, Sch 11 [10] [11]; 2008 No 75, Sch 2.12.
51ARestriction on manner of payment of
benefit
STC must not pay, in cash or by a cheque which
authorises payment in cash on presentation, a benefit or part of a benefit
payable under this Act.
s 51A: Ins 1993 No
42, Sch 4. Am 1996 No 39, Sch 4.
52Recovery of money owing to Fund
(1)
STC may recover any money owing to the Fund by a
contributor, employer or other person, together with interest thereon as
provided by subsection (3)—
(a)
except in the case of unpaid
contributions—as a debt in a court of competent
jurisdiction,
(b)
where any amount is, or becomes, payable from the
Fund to the contributor, employer or other person—by deduction from that
amount, or
(c)
in the case of a contributor who is an
employee—by deduction from the contributor’s salary in accordance
with subsection (2) by such instalments and at such times as STC
determines.
(2)
An employer shall, at the written request of STC,
make deductions from a contributor’s salary as referred to in subsection
(1) (c) and pay the amount thereof to STC, and an amount so deducted and paid
shall be deemed to have been paid to the Fund by the contributor from whose
salary the deduction was made.
(3)
Interest at a rate from time to time determined
by STC is payable on any amount owing to the Fund calculated from the date on
which the amount became due for payment until the date on which the amount is
recovered under subsection (1) or is otherwise paid.
s 52: Am 1996 No 39,
Sch 4.
52APayments to cover superannuation contributions
surcharge
(1)
A contributor may at any time lodge with STC an
election to pay amounts to the Fund in respect of the superannuation
contributions surcharge payable in respect of the
contributor.
(2)
Payments may be made on a periodic or a single
payment basis.
(3)
An election is to specify the amounts to be paid
and the manner in which the payments are to be made.
(4)
A contributor may, at any time, lodge with STC 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 STC for the purposes of this section.
(6)
An election under this section remains in force
until a subsequent election under this section takes
effect.
s 52A: Ins 1997 No
149, Sch 1.6 [19].
52BRepayment of excess payments
STC must refund to a contributor or former
contributor any excess amount of payments made under section 52A remaining
after payment of the debt (including accrued interest) owed for superannuation
contributions surcharge in respect of the contributor or former contributor,
together with interest on the excess amount at a rate determined by
STC.
s 52B: Ins 1997 No
149, Sch 1.6 [19].
53Restoration of lost right etc under
Act
(1)
Where a person is entitled to exercise a right or
enjoy a privilege or benefit under this Act and, without having exercised the
right or enjoyed the privilege or benefit, the person ceases to be entitled to
do so, the person may exercise the right or enjoy the privilege or benefit
if—
(a)
STC, being satisfied that it is just and
equitable that it should do so, gives its consent to the exercise by the
person of the right or the enjoyment by the person of the privilege or
benefit, and
(b)
the person fulfils any conditions imposed, and
complies with any requirements made, by STC in giving its
consent.
(2)
Where pursuant to subsection (1) STC consents to
an election, or an application to STC, being made after the time before which,
but for that consent, it should have been made, STC may, if it thinks fit,
deal with the election or application as if it had been made before that
time.
s 53: Am 1996 No 39,
Sch 4.
53APayment where beneficiary is missing
(1)
If STC is unable, after reasonable inquiry, to
find a person to whom a benefit is payable, STC may pay the benefit to someone
else to be applied wholly for the care, maintenance, benefit and support of
any person wholly or partly dependent on the person who would otherwise be
entitled to the benefit.
(2)
Any payment made under this section is taken to
have been made to the person who, but for this section, would be entitled to
the benefit.
s 53A: Ins 1993 No
111, Sch 5 (21). Am 1996 No 39, Sch 4.
54Payment where beneficiary incapable
(1)
Where a person to whom a benefit under this Act
is payable is, in the opinion of STC, incapable of administering his or her
own affairs by reason of illness, imprisonment or any other cause, STC may pay
the benefit to some other person to be applied wholly for the care,
maintenance, benefit and support of the person to whom, but for this section,
the benefit would be payable, or of any person wholly or partly dependent on
him or her.
(2)
Any payment made under this section shall be
deemed to have been made to the person entitled to the
benefit.
s 54: Am 1991 No 94,
Sch 1; 1993 No 111, Sch 5 (22); 1996 No 39, Sch 4.
54AInformation that must be disclosed to
contributors
(1)
STC must from time to time give to a contributor
or other person such information as STC determines under this
section.
(2)
STC must determine, having regard to the
information required to be provided by the trustee of a regulated
superannuation fund within the meaning of the Superannuation Industry (Supervision)
Act 1993 of the Commonwealth, the information to be
provided by STC to contributors and other persons and the circumstances in
which information must or may be provided.
s 54A: Ins 1991 No
95, Sch 9 (5). Am 1993 No 111, Sch 5 (23); 1996 No 39, Sch 4. Subst 1997 No
42, Sch 1.7 [20].
54BDisputes
(1)
If STC makes a decision under this Act in
relation to a contributor or other person, STC must give to the contributor or
other person notice in writing of—
(a)
the decision, and
(b)
the right to dispute the decision,
and
(c)
the time within which notice of a dispute must be
served on STC.
(2)
A contributor or other person who is aggrieved by
a decision made by STC has a right to dispute that decision and to have the
dispute determined under the Superannuation Administration Act
1996.
(3)
Notice of the dispute must be served on STC
within 2 years after the aggrieved person is notified in writing of the right
to dispute that decision.
(4)
This section applies to a decision made before,
on or after the commencement of this section, except a decision in respect of
which a dispute has been notified to STC before the commencement of this
section.
s 54B: Ins 2008 No
28, Sch 2.3.
55Regulations
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
56Savings and transitional provisions
Schedule 6 has effect.
s 56: Ins 1993 No
111, Sch 5 (24).