Commonwealth: Superannuation Legislation Amendment Act 1990 (Cth)

Superannuation Legislation Amendment Act 1990 No. 40 of 1990 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title 2. Commencement PART 2—AMENDMENTS OF THE SUPERANNUATION ACT 1922 3. Principal Act 4. Repeal of section 55 5. Payment to person other than pensioner PART 3—AMENDMENTS OF THE SUPERANNUATION ACT 1976 6. Principal Act 7. Long title 8. Interpretation 9. Insertion of new sections: 4a. Definition of "approved authority"—declaration for purposes of paragraph (a) 4b. Meaning of "re-employed former contributor with preserved rights" 10. Retirement on ground of invalidity 11. Accumulated basic and supplementary contributions—additional amounts 12. Children of deceased retirement pensioners 13. Temporary employees likely to be continued in employment 14. Repeal of section 12 15. Temporary employees employed under contract 16. Insertion of new section: 13a. Sections 11 and 13 not applicable to certain persons employed on or after 1 July 1990 TABLE OF PROVISIONS continued Section 17. Statutory office holders 18. Persons to whom Division 2 or 3 of Part IV of the Public Service Act applies 19. Insertion of new section: 15a. Persons excluded from definition of "eligible employee" 20. Medical examination, and issue of benefit classification certificate, on becoming eligible employee 21. Insertion of new sections: 16aa. Benefit event happening before section 16 procedures completed 16ab. Condition coming into existence after person became eligible employee 16ac. Issue of benefit classification certificate where duty of disclosure breached 16ad. Service of certificates and of related notices 16ae. Application of certain provisions to the Commissioner 22. Commissioner for Superannuation 23. Insertion of new Part: PART IIa—COMMONWEALTH SUPERANNUATION BOARD Division 1—Establishment. Functions and Powers of Board 27a. Establishment of Board 27b. Incorporation etc. 27c. Functions 27d. Powers Division 2—Constitution, meetings and business of Board 27e. Definitions 27f. Membership of Board 27g. Chairperson of Board 27h. Acting appointments 27j. Remuneration 27k. Leave of absence 27l. Resignation of appointed members 27m. Termination of appointment of appointed members 27n. Meetings 27p. Disclosure of interests 27q. Delegation by Board 27r. Indemnification of members of the Board 27s. Vacancies not to invalidate actions of Board 27t. Defective appointment not invalid etc. 27u. Staffing 24. Objective and duties of Trust 25. Repeal of sections 30, 30a and 31 and insertion of new section: 30. Membership of Trust 26. Remuneration and allowances 27. Leave of absence 28. Resignation 29. Disclosure of interests 30. Termination of appointment 31. Acting appointments 32. Meetings of Trust 33. Repeal of section 39 34. Establishment of Fund 35. Insertion of new section. Division and heading 43. Certain documents not liable to stamp duty etc. Division 2a—Provisions relating to certain services provided by Trust 43a. Powers of Trust as investment manager, etc. 43b. Trust may charge 43c. Costs TABLE OF PROVISIONS continued Section Division 2b—Accounts and Records 36. Trust to keep accounts and records 37. Insertion of new Division: Division 2c—The Chief Executive Officer 44aa. Chief Executive Officer 44aab. Duties of Chief Executive Officer 44aac. Chief Executive Officer not to engage in other paid employment 44aad. Remuneration and allowances 44aae. Leave of absence 44aaf. Resignation 44aag. Termination of appointment 44aah. Acting Chief Executive Officer 44aaj. Delegations 38. Basic contributions 39. Decreases in salary 40. Repeal of section 51a and substitution of sections: 51a. Maternity and parental leave 51b. Election to cease making contributions 41. Insertion of new Part: PART IVa—RETIREMENT ON GROUND OF INVALIDITY 54a. Interpretation 54b. Meaning of "totally and permanently incapacitated" Division 2—Certification by Board 54c. Eligible employee not to be retired on ground of invalidity without certificate from Board Division 3—Assessment process 54d. Interpretation 54e. Request for approval of retirement 54f. Assessment panel 54g. Board to seek recommendations of Comcare 54h. Board to decide whether to approve retirement 54j. Eligible employee etc. to be informed of decision of Board Division 4—Pre-assessment payments and rehabilitation 54k. Determination of requests, payments and rehabilitation programs to be in accordance with the Rules for the administration of the Superannuation (1990) Scheme 54l. Making of payments Division 5—Reconsideration of Decisions Subdivision A—Preliminary 54m. Interpretation Subdivision B—Reconsideration Advisory Committees 54n. Establishment 54p. Membership of Committee 54q. Functions of Committee 54r. Proceedings of Committee TABLE OF PROVISIONS continued Section 241. Payments from Consolidated Revenue Fund 242. Exemption from tax etc. PART XIV—TRANSFERS TO SUPERANNUATION (1990) SCHEME 243. Interpretation 244. Election to join Superannuation (1990) Scheme 245. Effect of election 246. Loss of entitlement to benefits 247. Revocation of election in certain cases 248. Transfer of assets etc. to Superannuation (1990) Scheme 249. Advances in respect of assets to be transferred 250. Exemption from tax etc. 93. New Schedule PART 4—AMENDMENTS OF SUPERANNUATION BENEFIT (INTERIM ARRANGEMENT) ACT 1988 94. Principal Act 95. Long title 96. Short title 97. Interpretation 98. Insertion of new section: 3a. Only one benefit in respect of a day of employment 99. Insertion of new sections: 3b. Rates of salary 3c. Continuing contributions 3d. Variation of Table 3e. Interest factors 3f. Qualified employees 100. Insertion of new sections: 4a. Arrangements for certain employees 4b. Nominated fund 4c. Approved funds 4d. Nominated and approved superannuation funds to comply with standards 4e. Payments of equivalent benefit to declared funds 4f. Payments of continuing contributions to declared funds 4g. Interest 4h. Certain employees to become members of nominated fund 101. When benefit payable 102. Amount of interim benefit before 1 July 1990 103. Insertion of new section: 8a. Amount of interim benefit from 1 July 1990 104. Insertion of new sections: 9a. Declarations 9b. Certain declarations disallowable etc. 9c. Delegation by Minister 9d. Minister to comply with Standards Act 9e. Source of payments 9f. Employers to ensure membership of funds 105. Schedule 106. Consequential amendments PART 5—AMENDMENTS OF THE PAPUA NEW GUINEA (STAFFING ASSISTANCE) ACT 1973 107. Principal Act 108. Interpretation 109. Commissioner to administer Part V TABLE OF PROVISIONS continued Section 110d. Variation of Table 110e. Exclusion of certain employees 110f. Inclusion of certain employees 110g. Declarations 110h. Payments of productivity contributions to Commissioner 110j. Source of productivity contributions 110k. Repayments of interim benefits 110l. Payments of certain benefits to Fund by new productivity employees 110m. Payments of certain benefits to Fund by productivity employees 110n. Commissioner to pay Fund 110p. Productivity benefit 110q. Accumulated employer contributions 110r. Payment of productivity benefit 110s. Productivity benefits payable to spouses etc. 65. Payment of accumulated contributions where no other benefit payable etc. 66. Payments into and out of Consolidated Revenue Fund 67. Payment of part of spouse's pension etc. attributable to children 68. Payment of orphan benefit 69. Persons to whom Part applies 70. Interpretation 71. Payment of transfer values to Commissioner 72. Exemption of certain eligible employees from medical examination 73. Interpretation 74. Transfer value 75. Deferred benefits 76. Election that Division apply 77. Circumstances in which person entitled to deferred benefits 78. Election for transfer value by persons in relation to whom deferred benefits are applicable 79. Person who is entitled to rights under Division not entitled to rights under other provisions of Act 80. Special provisions affecting certain former contributors under certain superannuation schemes 81. Insertion of new section: 154a. Determinations with respect to interest 82. Insertion of new section: 155b. Modification of Act in relation to persons who cease to be eligible employees in certain circumstances 83. General provisions applicable to elections under Act 84. Repeal of section 159 and substitution of section: 159. Payment by approved authorities etc. to the Commonwealth in respect of eligible employees 85. Cost of administration of, and of medical examinations under, Act etc. 86. Annual report of Trust 87. Insertion of new section: 161a. Annual report of Commonwealth Superannuation Board 88. Minister may request the supply of information 89. Making false statements to Commissioner etc. 90. Regulations 91. Medical examinations and benefit classification certificates 92. Insertion of new Parts: PART XIII—TRANSFERS TO APPROVED SUPERANNUATION SCHEMES 237. Interpretation 238. Loss of entitlement to benefits—eligible employee transferring to an approved superannuation scheme 239. Approval of superannuation schemes 240. Transfer of assets etc. to approved superannuation schemes TABLE OF PROVISIONS continued Section Subdivision C—Reconsideration of decision made by delegate 54s. Application to Board 54t. Decision to be referred to Committee 54u. Determination by Board Subdivision D—Reconsideration of decision made by Board 54v. Application to Board 54w. Payment of fees 54x. Decision to be reconsidered only on basis of new evidence 54y. Decision to be referred to Committee 54z. Determination by Board Division 6—Administrative Costs 54za. Costs to be paid from Consolidated Revenue Fund 42. Entitlement to age retirement benefit 43. Rate of standard age retirement pension 44. Early retirement—voluntary or involuntary retirement 45. Entitlement to early retirement benefit 46. Rate of standard early retirement pension 47. Election for lump sum benefit in case of involuntary retirement 48. Lump sum benefit payable on commutation 49. Entitlement to invalidity pension 50. Invalidity benefit where pension not reduced on medical grounds and election not made under section 68 or 69 51. Election where benefit not reduced on medical grounds 52. Invalidity benefit where benefit reduced on medical grounds, period of contributory service not less than 8 years and election not made under section 71 or 72 53. Election where benefit reduced on medical grounds, period of contributory service not less than 8 years 54. Rate of spouse's standard pension on death of age or early retirement pensioner 55. Rate of spouse's additional pension on death of age or early retirement pensioner 56. Rate of spouse's pension on death of invalidity pensioner 57. Insertion of new section: 96a. Set off against pension in certain circumstances 58. Insertion of new Division: Division 3a—Spouse's benefit attributable to partially dependent children 96b. Extra spouse's pension 59. Insertion of new section: 96c. Interpretation 60. Orphan benefit—death of eligible employee before attaining maximum retiring age where benefit not reduced on medical grounds, period of prospective service less than 8 years and direction given under this section 61. Orphan benefit—death of eligible employee before attaining maximum retiring age where benefit reduced on medical grounds and period of contributory service less than 8 years 62. Insertion of new section: 109a. Orphan pension—when there are partially dependent children 63. Eligible employee or retirement pensioner survived by more than one spouse 64. Insertion of new Part: PART VIa—PRODUCTIVITY SUPERANNUATION 110a. Interpretation 110b. Rate of salary 110c. Productivity contributions TABLE OF PROVISIONS continued Section 110. Annual reports 111. Repeal of Part VI 112. Arrangements for reimbursement of Commonwealth by certain authorities 113. No assignment of benefits Superannuation Legislation Amendment Act 1990 No. 40 of 1990 An Act to amend certain Acts relating to superannuation [Assented to 7 June 1990] BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Superannuation Legislation Amendment Act 1990. Commencement 2. (1) The following provisions: (a) Parts 1 and 2, sections 6, 69, 70, 71, 94 and 98 and Part 5, of this Act; (b) section 43 and Part XIII of the Superannuation Act 1976 inserted by this Act; commence on the day on which this Act receives the Royal Assent. (2) Section 48 of this Act is taken to have commenced on 1 May 1987. (3) The remaining provisions of this Act commence on 1 July 1990. PART 2—AMENDMENTS OF THE SUPERANNUATION ACT 1922 Principal Act 3. In this Part, "Principal Act" means the Superannuation Act 19221. Repeal of section 55 4. Section 55 of the Principal Act is repealed. Payment to person other than pensioner 5. Section 62 of the Principal Act is amended by inserting ", for any reason (including the reason that the pensioner or beneficiary is insane or undergoing imprisonment or is otherwise under a disability)," after "should". PART 3—AMENDMENTS OF THE SUPERANNUATION ACT 1976 Principal Act 6. In this Part, "Principal Act" means the Superannuation Act 1976². Long Title 7. The title of the Principal Act is amended by adding at the end ", and for other purposes". Interpretation 8. (1) Section 3 of the Principal Act is amended: (a) by omitting from the definition of "accumulated basic contributions" in subsection (1) ", in accordance with the regulations,"; (b) by omitting from the definition of "accumulated supplementary contributions" in subsection (1) ", in accordance with the regulations,"; (c) by omitting from paragraph (a) of the definition of "approved authority" in subsection (1) "specified in the regulations as an approved authority for the purposes of this Act, being—" and substituting "declared by the Minister to be an approved authority for the purposes of this Act and is:"; (d) by adding at the end of each of subparagraphs (a) (i) and (ii) of the definition of "approved authority" in subsection (1) "or"; (e) by adding at the end of paragraph (a) of the definition of "approved authority" in subsection (1) the following subparagraph: "(v) a company or other body corporate incorporated, whether before or after the commencement of this subparagraph, under an Act or a law of a State or Territory, being a company or body corporate in which: (a) an authority or body referred to in subparagraph, (ii), (iii) or (iv), has; or (b) the Commonwealth and one, or more than one, such authority or body together have; or (c) 2 or more such authorities or bodies together have; a controlling interest; or"; (f) by adding at the end of each of paragraphs (h) and 0) of the definition of "eligible employee" in subsection (1) "or"; (g) by adding at the end of the definition of "eligible employee" in subsection (1) the following word and paragraph: "or (m) a person who, under section 15a, is excluded from this definition."; (h) by omitting from the definition of "Fund" or "Superannuation Fund" in subsection (1) "Superannuation Fund" and substituting "Commonwealth Superannuation Fund No. 2"; (j) by omitting from the definition of "period of contributory service" in subsection (1) "(less any period during that period when the person was on leave of absence without pay and in respect of which sub-section 51 (1) applies or was absent from duty and in respect of which sub-section 51a (1) applies)" and substituting the following words and paragraphs: "(less any period during that period that is: (a) a period of leave of absence in respect of which subsection 51 (1) applies to the person; or (b) a period of absence from duty in respect of which subsection 51a (1) as in force before 1 July 1990 applies to the person; or (c) a period that is taken, under subsection 51a (5) as in force on and after 1 July 1990, to be a non-contributory period of service for the person;)"; (k) by inserting in subsection (1) the following definitions: " 'accumulated employer contributions' has the meaning given by section 110q; 'approved medical practitioner' means a medical practitioner approved by the Commissioner for the purposes of this Act; 'asking a question' includes making a request (whether oral or in writing) for information; 'Board' means the Commonwealth Superannuation Board established under section 27a; 'Chief Executive Officer' means the Chief Executive Officer of the Trust appointed under section 44aa; 'Fund accumulated employer contributions', in relation to a person, means the person's accumulated employer contributions less any part of them that is: (a) a notional interim benefit of the person within the meaning of Part VIa; or (b) interest on that benefit; 'partially dependent child', in relation to a person who has died and was, at the time of his or her death, an eligible employee or a retirement pensioner, means a person: (a) who is a child of the deceased person other than: (i) an eligible child; or (ii) (where the deceased person was a retirement pensioner at the time of his or her death) a child who, by virtue of section 9, is deemed not to be a partially dependent child for the purposes of this Act; and (b) who is a person the 16th anniversary of whose birth has not occurred or is a person: (i) the 16th anniversary of whose birth has occurred but the 25th anniversary of whose birth has not occurred; and (ii) who is receiving full-time education at a school, college or university; and (iii) who is not ordinarily in employment or engaged in work on his or her own account; and (c) to or in respect of whom, immediately before the deceased person's death, the deceased person was voluntarily making, or required by a court to make, regular maintenance payments; 're-employed former contributor with preserved rights' has the meaning given by section 4b; 'Rules for the administration of the Superannuation (1990) Scheme' means the rules for the administration of that scheme set out in the Schedule to the deed by which that scheme was established; 'Superannuation (1990) Scheme' means the Superannuation Scheme established by deed under the Superannuation Act 1990;". (2) Regulations made for the purposes of the definition of "approved authority" in subsection 3 (1) of the Principal Act and in force immediately before 1 July 1990: (a) remain in force on and after that date; and (b) are taken to be declarations made by the Minister for the purposes of that definition as in force on and after that date; and (c) may be amended or repealed by such declarations. (3) On and after 1 July 1990, an approval that, immediately before that date, was in force for the purposes of the definition of "approved medical practitioner" in subsection 16 (1) of the Principal Act has effect as if it were an approval under the definition of "approved medical practitioner" in subsection 3 (1) of the Principal Act as amended by this Act. 9. After section 4 of the Principal Act the following sections are inserted: Definition of "approved authority"—declaration for purposes of paragraph (a) "4a. (1) Subject to subsection (2), a declaration for the purposes of paragraph (a) of the definition of 'approved authority' in subsection 3 (1) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901. "(2) A declaration referred to in subsection (1) is a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903. "(3) A declaration referred to in subsection (1) may be expressed to have taken effect from and including a day not earlier than 12 months before the making of the declaration. Meaning of "re-employed former contributor with preserved rights" "4b. For the purposes of this Act, a person is a re-employed former contributor with preserved rights if: (a) the person: (i) ceased, or last ceased, to be a contributor under the superseded Act before 1 July 1976; or (ii) ceased, or last ceased, to be an eligible employee before 1 July 1990; and (b) after his or her so ceasing or last ceasing to be such a contributor or an eligible employee (as the case may be), a transfer value in respect of the person was paid to the person administering a superannuation scheme (other than the scheme established under the superseded Act or the scheme established under this Act); and (c) on or after 1 July 1990, the person becomes: (i) a permanent employee; or (ii) a temporary employee; or (iii) the holder of a statutory office (including the office of Commissioner); or (iv) a person to whom section 14a applies; and a transfer value that includes the transfer value referred to in paragraph (b) is payable, or will, on the person's becoming an eligible employee, be payable, to or in respect of the person under: (v) the superannuation scheme referred to in paragraph (b); or (vi) another superannuation scheme applicable in relation to any employment in which the person was employed after ceasing, or last ceasing, to be a contributor under the superseded Act or an eligible employee (as the case may be).". Retirement on ground of invalidity 10. Section 7 of the Principal Act is amended: (a) by omitting from subsection (2) "Commissioner" (wherever occurring) and substituting "Board"; (b) by inserting in subsection (2) "invalidity because of' after "on the ground of' (last occurring). Accumulated basic and supplementary contributions—additional amounts 11. Section 7a of the Principal Act is amended by omitting from subsections (1), (2), (3) and (4) ", in accordance with the regulations," (wherever occurring). Children of deceased retirement pensioners 12. Section 9 of the Principal Act is amended by inserting in each of subsections (1), (2), (3), (4) and (5) "or a partially dependent child" after "eligible child". Temporary employees likely to be continued in employment 13. Section 11 of the Principal Act is amended by omitting subsections (1), (2) and (3) and substituting the following subsection: "(1) Where a person who is a temporary employee requests the Commissioner to direct, under this section, that the person be treated as an eligible employee for the purposes of this Act, the Commissioner may direct that the person is, as from the day on which the direction is given, an eligible employee for the purposes of this Act.". Repeal of section 12 14. Section 12 of the Principal Act is repealed. Temporary employees employed under contract 15. Section 13 of the Principal Act is amended by omitting from paragraph (1) (a) "for a term of not less than 1 year". 16. After section 13 of the Principal Act the following section is inserted: Sections 11 and 13 not applicable to certain persons employed on or after 1 July 1990 "13a. Sections 11 and 13 do not apply in relation to a person who is on 1 July 1990, or becomes after that date, a temporary employee unless: (a) immediately before the person became or becomes so employed: (i) invalidity pension was, or would, but for a suspension of payment, have been, payable to him or her under this Act or the superseded Act; or (ii) deferred benefits were applicable to him or her under this Act; or (b) the person became or becomes, by virtue of his or her being so employed, a re-employed former contributor with preserved rights.". Statutory office holders 17. Section 14 of the Principal Act is amended: (a) by omitting from paragraph (1) (a) "to which he has been appointed for a term of not less than 1 year"; (b) by adding at the end the following subsection: "(5) This section does not apply in relation to a person who is on 1 July 1990, or becomes after that date, the holder of a statutory office unless: (a) immediately before the person became or becomes the holder of the statutory office: (i) invalidity pension was, or would, but for a suspension of payment, have been, payable to him or her under this Act or the superseded Act; or (ii) deferred benefits were applicable to him or her under this Act; or (b) the person became or becomes, by virtue of his or her becoming the holder of the statutory office, a re-employed former contributor with preserved rights.". Persons to whom Division 2 or 3 of Part IV of the Public Service Act applies 18. Section 14a of the Principal Act is amended: (a) by omitting from subsection (1) "This" and substituting "Subject to subsection (1a), this"; (b) by omitting from paragraph (1) (c) "section 87q" and substituting "section 87m or 87q"; (c) by omitting from paragraph (1) (d) "section 87q" and substituting "section 87m or 87q"; (d) by inserting after subsection (1) the following subsections: "(1a) This section does not apply to a person who becomes, on or after 1 July 1990, a person referred to in paragraph (1) (a), (b), (c) or (d) unless the person had been an eligible employee: (a) in the case of a person referred to in paragraph (1) (a) or—immediately before becoming such a person; or (b) in the case of a person referred to in paragraph (1) (c) or—immediately before the person ceased to be employed in his or her previous relevant employment. "(1b) In subsection (1a): 'previous relevant employment', in relation to a person referred to in paragraph (1) (c) or (d), means: (a) if the person: (i) after being dismissed or deemed to have been retired from the Australian Public Service, was re­appointed to that Service under section 63f, 63g or 66b of the Public Service Act (as the case may be); or (ii) after being dismissed or retired from employment other than employment in the Australian Public Service, was re-appointed or re-employed in circumstances similar to circumstances in which a person could have been re-appointed to that Service under section 63f, 63g or 66b of the Public Service Act; the office held by the person, or the employment in which the person was employed, immediately before his or her dismissal or retirement; or (b) if the person: (i) is deemed to have been re-appointed to the Australian Public Service under section 87m or 87q of the Public Service Act; or (ii) not being a person to whom subparagraph (i) applies, is re-appointed, or re-employed, by a previous employer in circumstances similar to the circumstances in which a person could have been deemed to have been re-appointed to the Australian Public Service under section 87m or 87q of the Public Service Act; the office last held by the person, or the employment in which the person was last employed, in the Australian Public Service, or the employment in which the person was last employed by that employer, before his or her re­appointment or re-employment."; (e) by omitting from paragraph (6) (a) "section 87q" (wherever occurring) and substituting "section 87m or 87q". 19. After section 15 of the Principal Act the following section is inserted: Persons excluded from definition of "eligible employee" "15a. (1) A person who, on or after 1 July 1990, becomes a permanent employee because he or she is employed in a permanent capacity by an approved authority declared by the Minister to be an exempt authority for the purposes of this subsection is excluded from the definition of 'eligible employee' in subsection 3(1). "(2) Where, on or after 1 July 1990: (a) a person (other than a person to whom subsection (1) applies) becomes a permanent employee; or (b) a person is appointed as Commissioner; that person is excluded from the definition of 'eligible employee" in subsection 3 (1) unless: (c) immediately before the person becomes so employed or is so appointed: (i) the person was an eligible employee; or (ii) invalidity pension was, or would, but for a suspension of payment, have been, payable to him or her under this Act or the superseded Act; or (iii) deferred benefits were applicable to him or her under this Act; or (d) the person becomes, by virtue of his or her employment or appointment, a re-employed former contributor with preserved rights.". Medical examination, and issue of benefit classification certificate, on becoming eligible employee 20. (1) Section 16 of the Principal Act is amended: (a) by omitting subsection (1); (b) by omitting subsections (9) to (14), inclusive, and substituting the following subsection: "(9) Where, under subsection (8), the Commissioner revokes a benefit classification certificate on a particular day: (a) the revocation has effect on and from that day; and (b) the new certificate (if any) issued in substitution for the revoked certificate is to be taken to have been issued on that day.". (2) In spite of subsection (1), subsections 16 (11b) and (11c) of the Principal Act (as in force before the commencement of this section) continue to apply in relation to a certificate revoked or issued under subsection 16(11) of that Act. (3) Where, before the commencement of this section, the Administrative Appeals Tribunal or the Federal Court of Australia made a decision or order setting aside or varying a decision by the Commissioner to issue a benefit classification certificate in respect of a person under subsection 16 (11) of the Principal Act as then in force, then in spite of subsection (1) of this section and section 21: (a) subsections 16 (11) to (11c), inclusive, of the Principal Act (as in force before the commencement of this section) continue to apply in relation to: (i) a requirement on the basis of which; and (ii) information on the basis of the giving of which; the Commissioner decided to issue the certificate or to specify in it a particular physical or mental condition; and (b) section 16ac of the Principal Act as amended by this Act does not apply in relation to: (i) a question the asking of which constituted, or formed part of, such a requirement; or (ii) such information. (4) In subsection (3): "information" includes information allegedly given; "requirement" means a requirement, or an alleged requirement, to give information; "set aside" includes quash. 21. (1) After section 16 of the Principal Act the following sections are inserted: Benefit event happening before section 16 procedures completed "16aa. (1) In this section: 'benefit event', in relation to a person who is an eligible employee, means: (a) the person's death; or (b) the person ceasing to be an eligible employee because of retirement on the ground of invalidity; or (c) the annual rate of salary of the person decreasing under such circumstances that the Commissioner is satisfied that the decrease can properly be attributed to physical or mental incapacity; 'condition' means a physical or mental condition; 'examination' means a medical examination. "(2) Subsections (3) to (9), inclusive, apply where, as at the time of a benefit event in relation to a person who is an eligible employee: (a) the person has undergone no examination under subsection 16 (2); or (b) the person has undergone such an examination, or 2 or more such examinations, but the Commissioner has not yet decided that the person should not be required under subsection 16 (2) to undergo a further examination; or (c) the Commissioner has so decided but has not yet considered the report or reports of the result or results of the examination or examinations that the person has undergone under subsection 16 (2); or (d) the Commissioner has considered the report or reports but has not yet decided whether or not to issue a benefit classification certificate in respect of the person under subsection 16 (4); or (e) the Commissioner has decided so to issue such a certificate but has not yet issued it. "(3) If subparagraph (2) (a) or (b) applies, the Commissioner must, in relation to each examination (if any) that: (a) the Commissioner required the person under subsection 16 (2) to undergo; or (b) the Commissioner is satisfied he or she would, but for the benefit event, have so required the person to undergo; but that the person did not in fact undergo, determine what, in the Commissioner's opinion, the report of the result of the examination would have contained if the person: (c) had undergone the examination on the day when the person: (i) if paragraph (2) (a) applies—became an eligible employee; or (ii) if paragraph (2) (b) applies—underwent the examination, or the later or last of the examinations, referred to in that paragraph; and (d) at or in connection with the examination: (i) had answered properly, within the meaning of section 16ac, all the questions asked of the person; and (ii) had given no false or misleading information. "(4) For the purposes of subsection (3), the Commissioner must consider such information and other matters as he or she considers relevant. "(5) In subsection (6): 'report material' means: (a) if paragraph (2) (a) applies—the determination or determinations under subsection (3); or (b) if paragraph (2) (b) applies: (i) the report or reports of the result or results of the examination or examinations referred to in that paragraph; and (ii) the determination or determinations (if any) under subsection (3); or (c) if paragraph (2) (c) or (d) applies—the report or reports referred to in that paragraph. "(6) Unless paragraph (2) (e) applies, the Commissioner must consider the report material and any other matters (other than matters excluded by subsection (7)) that he or she considers relevant and, if satisfied on the basis of the matters set out in the report material and of those other matters that, had the benefit event not happened, he or she would have formed on that basis the opinion that there was a real risk that the person, by reason of, or for a reason connected with: (a) a condition that is referred to in the report material and that the Commissioner is satisfied is a condition of the person that existed at the time when the person became an eligible employee; or (b) 2 or more such conditions; would not continue to be an eligible employee until the person attained his or her maximum retiring age, must issue in respect of the person a benefit classification certificate specifying the condition or conditions. "(7) The matters excluded by this subsection are the following: (a) the fact that the benefit event has happened; (b) any information the Commissioner has about the causes of: (i) the death; or (ii) the incapacity that was the ground for the retirement; or (iii) the incapacity to which the Commissioner is satisfied that the decrease in the annual rate of salary of the person could properly be regarded as attributable; as the case may be; (c) any information the Commissioner has about the person's state of physical or mental health, or medical history, during a period beginning after: (i) if the person has undergone an examination or examinations under subsection 16 (2)—the person underwent the examination or the later or last of the examinations; or (ii) otherwise—the person became an eligible employee. "(8) If paragraph (2) (e) applies, the Commissioner must issue in respect of the person the benefit classification certificate that the Commissioner would have so issued but for the benefit event. "(9) For the purposes of this Act, a benefit classification certificate issued under this section is to be taken to have been issued under subsection 16 (4) on the day before the day of the benefit event. Condition coming into existence after person became eligible employee "16ab. (1) This section applies where a benefit classification certificate (whether issued before or after the commencement of this section): (a) is in force in respect of a person (in this section called the 'employee') who is an eligible employee; or (b) was in force in respect of a person (in this section also called the 'employee') immediately before: (i) the annual rate of salary of the employee decreased, at or after that commencement, under such circumstances that the Commissioner is satisfied that the decrease can properly be attributed to physical or mental incapacity; or (ii) the employee ceased, at or after that commencement, to be an eligible employee. "(2) A person, being: (a) the employee or a person acting on his or her behalf; or (b) if the employee is dead: (i) a spouse or child of the employee who is entitled to benefits under Part VI; or (ii) a person acting on behalf of such a spouse or child; may apply to the Commissioner for the certificate to be revoked under this section. "(3) If an application is made under subsection (2) and the employee is living, the Commissioner may, for the purposes of the application, require him or her to undergo within a specified period such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner determines. "(4) A report or reports of the result or results of a medical examination or medical examinations under subsection (3) is to be given to the Commissioner. "(5) On an application under subsection (2), the Commissioner must consider each report (if any) given to the Commissioner under subsection (4), and such other matters (if any) as he or she thinks relevant, and must: (a) if he or she is satisfied that a physical or mental condition or conditions specified in the certificate came into existence after the relevant time: (i) if the certificate specifies no other physical or mental condition—revoke the certificate; or (ii) otherwise—revoke the certificate and issue in substitution for it a new benefit classification certificate that does not specify the first-mentioned condition or conditions but specifies the other condition or conditions specified in the revoked certificate; or (b) otherwise—refuse the application. "(6) For the purposes of paragraph (5) (a), the relevant time is the time when the employee: (a) if he or she became an eligible employee because of paragraph (a) of the definition of 'eligible employee' in subsection 3 (1)— became an employee for the purposes of the superseded Act; or (b) otherwise—became an eligible employee. "(7) Except for the purposes of this section, a certificate revoked under subsection (5) is taken never to have been issued. "(8) A certificate issued under subsection (5) in substitution for a revoked certificate is taken to have been issued on the day on which, and under the provision under which, the revoked certificate was issued. "(9) Subsections (5), (7) and (8) have effect even if the certificate referred to in subsection (1) had previously been revoked, in which case: (a) a certificate issued under subsection (5) in substitution for the first-mentioned certificate is taken to have been revoked at the time of the previous revocation; and (b) a certificate that was previously issued in substitution for the first-mentioned certificate is taken to have been issued in substitution for the certificate (if any) issued under subsection (5). Issue of benefit classification certificate where duty of disclosure breached "16ac. (1) In this section: 'condition' means a physical or mental condition; 'relevant person' means: (a) a person: (i) who is an eligible employee; and (ii) who has not attained his or her maximum retiring age; and (iii) whose period of contributory service, if the person were to cease to be an eligible employee, would be less than 20 years; or (b) a person: (i) who is or was an eligible employee to whom partial invalidity pension is or was payable in accordance with section 78; and (ii) whose period of contributory service, if the person had ceased to be an eligible employee at the time when partial invalidity pension became so payable, would have been less than 20 years; or (c) a person: (i) who has ceased, because of death or retirement on the ground of invalidity, to be an eligible employee before attaining his or her maximum retiring age; and (ii) whose period of contributory service is less than 20 years. "(2) Subsections (4) to (8), inclusive, apply where the Commissioner is satisfied, in respect of a person who is a relevant person: (a) that: (i) at or in connection with a medical examination that the person was required under subsection 16 (2) or (6) or 16ab (3) to undergo; or (ii) in connection with a request under subsection 16 (6) by the person; the person failed to answer properly a question asked of him or her or gave false or misleading information; and (b) that, if the person had answered the question properly or had not given that false or misleading information: (i) where there is in force, or there was in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person—a condition or conditions of the person not specified in the certificate would be or would have been so specified; or (ii) where subparagraph (i) does not apply—there would be in force, or there would have been in force immediately before the person's retirement or death, a benefit classification certificate in respect of the person specifying a condition or conditions of the person. "(3) Subsections (4) to (8), inclusive, also apply where the Commissioner is satisfied, in respect of a person who is a relevant person: (a) that, in connection with an application under subsection 16ab (2) for the revocation of a certificate issued in respect of the person, a person (in this section called the 'non-discloser'), being: (i) the relevant person; or (ii) the applicant; or (iii) a person acting on the applicant's behalf; or (iv) a person on whose behalf the applicant was acting; failed to answer properly a question asked of him or her or gave false or misleading information; and (b) that, if the non-discloser had answered the question properly or had not given that false or misleading information: (i) where there is in force, or there was in force immediately before the relevant person's retirement or death, a benefit classification certificate in respect of the relevant person— a condition or conditions of the relevant person not specified in the certificate would be or would have been so specified; or (ii) where subparagraph (i) does not apply—there would be in force, or there would have been in force immediately before the relevant person's retirement or death, a benefit classification certificate in respect of the relevant person specifying a condition or conditions of the relevant person. "(4) If subparagraph (2) (b) (i) or (3) (b) (i) applies, the Commissioner shall revoke the certificate and issue in substitution for it a new benefit classification certificate in which the condition or conditions referred to in that subparagraph is or are specified either in addition to, or instead of, the condition, or some or all of the conditions, specified in the revoked certificate. "(5) If subparagraph (2) (b) (ii) or (3) (b) (ii) applies, the Commissioner shall issue in respect of the relevant person a benefit classification certificate specifying the condition or conditions referred to in that subparagraph. "(6) Except for the purposes of this section, a certificate revoked under subsection (4) is taken never to have been issued. "(7) A certificate issued under subsection (4) in substitution for a revoked certificate is taken to have been issued on the day on which, and under the provision under which, the revoked certificate was issued. "(8) A certificate issued under subsection (5) shall be taken to have been issued on the day, and under the provision, that the Commissioner determines to be the day on which, and the provision under which, a benefit classification certificate would have been issued, or would have been taken to have been issued, as the case requires, in respect of the relevant person if the relevant person, or the non-discloser, as the case may be, had answered the question properly, or had not given the false or misleading information, as the case may be. "(9) For the purposes of this section, a person answers a question properly if, and only if, he or she gives in answer to the question all the information that he or she could reasonably be expected to give, on the basis of: (a) his or her knowledge about the relevant matters; and (b) the knowledge that, having regard to his or her knowledge about the relevant matters, he or she could reasonably be expected to have about those matters; if he or she answered the question fully and truthfully on the basis of the knowledge referred to in paragraphs (a) and (b). "(10) In subsection (9): 'relevant matters', in relation to a question asked of a person, means: (a) in any case—the matters that the person could reasonably be expected to regard as relevant to answering the question; and (b) if the question is asked of the person: (i) at or in connection with a medical examination that the person was required under subsection 16 (2) or (6) or 16ab (3) to undergo; or (ii) in connection with a request by the person under subsection 16 (6); or (iii) in connection with an application under subsection 16ab (2) for the revocation of a certificate issued in respect of the person; the person's medical history and past and present state of physical and mental health. Service of certificates and of related notices "16ad. (1) The Commissioner must serve: (a) a copy of a benefit classification certificate; or