Commonwealth: Superannuation Legislation Amendment Act 1991 (Cth)

Superannuation Legislation Amendment Act 1991 No. 130 of 1991 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title 2. Commencement PART 2—AMENDMENTS OF THE SUPERANNUATION ACT 1976 3. Principal Act 4. Interpretation 5. Meaning of "re-employed former contributor with preserved rights" 6. Retirement on ground of invalidity 7. Sections 11 and 13 not applicable to certain persons employed on or after 1 July 1990 8. Statutory office holders 9. Persons excluded from definition of "eligible employee" 10. Medical examination, and issue of benefit classification certificate, on becoming eligible employee 11. Benefit event happening before section 16 procedures completed 12. Commissioner for Superannuation 13. Functions 14. Indemnification of members of the Board 15. Decreases in salary 16. Leave of absence without pay 17. Interpretation 18. Repeal of section and substitution of new section: 54g. Board to seek recommendations 19. Board to decide whether to approve retirement 20. Determination of requests, payments and rehabilitation programs to be in accordance with the Rules for the administration of the Superannuation (1990) Scheme 21. Repeal of Division TABLE OF PROVISIONS—continued Section 22. Entitlement to age retirement benefit 23. Entitlement to early retirement benefit 24. Election for lump sum benefit in case of involuntary retirement 25. Election to commute 26. Reduction of invalidity pensions because of earnings 27. Insertion of new section: 73b. Reduction of invalidity pensions because of pre-assessment payments 28. Entitlement to spouse's benefit on death of pensioner 29. Repeal of Division and substitution of new Division: Division 5—Miscellaneous 109ab. Eligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse 110. Eligible employee or retirement pensioner survived by more than one spouse 110ab. Spouse's pension to be increased in certain circumstances 30. Insertion of new section: 110ea. Interest payable to employer in certain circumstances 31. Repayment of interim benefits 32. Payments of certain benefits to Fund by new productivity employees 33. Productivity benefit 34. Accumulated employer contributions 35. Payment of productivity benefit 36. Insertion of new Part: PART VIb—POSTPONEMENT OF BENEFITS OF RETIREMENT PENSIONERS 110t. Circumstances in which benefits may be postponed 110ta. Effect of election 110tb. Date on which postponed benefits become payable 110tc. Rates of pension after postponement of payment 110td. Application of Parts VI and VIa in relation to postponed benefits 110te. Election by spouse to commute 110tf. Payment of lump sum benefit to orphan 110tg. Effect of election on benefits already paid 37. Payment of accumulated contributions where no other benefit payable etc. 38. Payments into and out of Consolidated Revenue Fund 39. Instalments of pension 40. Payment of part of a spouse's pension etc. attributable to children 41. Payment of orphan benefit 42. Transfer value payable in respect of previous employment 43. Payment of transfer values to Commissioner 44. Insertion of new section: 128aa. Payment to Commissioner under section 6a of the Superannuation Act 1990 45. Interpretation 46. Public employment 47. Eligible superannuation schemes 48. Deferred benefits 49. Circumstances in which person entitled to deferred benefits 50. Election for transfer value by persons in relation to whom deferred benefits are applicable 51. Person who is entitled to rights under Division not entitled to rights under other provisions of Act 52. Certain former eligible employees not entitled to benefits under Division 53. Special provisions affecting certain contributors under certain superannuation schemes 54. Interpretation TABLE OF PROVISIONS—continued Section 55. Insertion of new Part: PART Xa—REVIEW OF DECISIONS MADE BY THE BOARD Division 1—Preliminary 153aa. Interpretation Division 2—Reconsideration Advisory Committees 153ab. Establishment 153ac. Membership of Committee 153ad. Functions of Committee 153ae. Proceedings of Committee 153af. Indemnification of members of Reconsideration Advisory Committees 153ag. Remuneration and allowances Division 3—Reconsideration of decision made by delegate 153ah. Application to Board 153aj. Decisions to be referred to panel in certain circumstances 153ak. Decision to be referred to Committee 153al. Determination by Board Division 4—Reconsideration of decision made by Board 153am. Application to Board 153an. Payment of fees 153ap. Decision to be reconsidered only on basis of new evidence 153aq. Decision to be referred to panel in certain circumstances 153ar. Decision to be referred to Committee 153as. Determination by Board 56. Review of decisions of the Commissioner 57. General provisions applicable to elections under Act 58. Repeal of section and substitution of new section: 165. Delegation 59. Regulations 60. Medical examinations and benefit classification certificates 61. Interpretation 62. Loss of entitlement to benefits—eligible employee transferring to an approved superannuation scheme 63. Insertion of new Part: PART XIIIa—TRANSFERS TO AUTHORISED SUPERANNUATION SCHEMES 242a. Holders of statutory offices 242b. Authorisation of superannuation schemes 242c. Deferred benefits—eligible employee transferring to an authorised superannuation scheme 242d. Deferred benefits under this Part 242e. Circumstances in which deferred benefits become payable 64. Election to join Superannuation (1990) Scheme 65. Loss of entitlement to benefits PART 3—AMENDMENTS OF THE SUPERANNUATION ACT 1990 66. Principal Act 67. Interpretation 68. Membership of Superannuation Scheme 69. Insertion of new section: 6a. Election by certain persons to join scheme under the Superannuation Act 1976 TABLE OF PROVISIONS—continued Section 70. Repeal of section and substitution of new section: 11. Director of company etc. 71. Member not to be retired on grounds of invalidity without certificate from Board 72. Payment by approved authorities etc. to the Commonwealth in respect of benefits payable to members employed etc. by authorities 73. Insertion of new section: 28a. Delegation by Board 74. Insertion of new Part: PART 8a—TRANSFERS TO APPROVED AND AUTHORISED SUPERANNUATION SCHEMES Division 1—Preliminary 33a. Statutory office holder Division 2—Approved superannuation schemes 33b. Interpretation 33c. Approval of superannuation schemes 33d. Transfer of assets etc. to approved superannuation schemes 33e. Payments from Consolidated Revenue Fund 33f. Exemption from tax etc. Division 3—Authorised superannuation schemes 33g. Authorisation of superannuation schemes for the purposes of Part 6 of the Rules 75. Certain authorities to pay part of costs of administration 76. Cost of medical examination on entry into Superannuation Scheme 77. Indemnification of trustees etc. 78. Disallowable instruments PART 4—AMENDMENT OF THE SUPERANNUATION BENEFITS (SUPERVISORY MECHANISMS) ACT 1990 79. Principal Act 80. Provision of superannuation in accordance with Ministerial guidelines PART 5—AMENDMENTS OF THE SUPERANNUATION (PRODUCTIVITY BENEFIT) ACT 1988 81. Principal Act 82. Interpretation 83. Insertion of new section: 4ea. Payments of equivalent benefit to Board 84. Interest Superannuation Legislation Amendment Act 1991 No. 130 of 1991 An Act to amend certain Acts relating to superannuation, and for related purposes [Assented to 2 September 1991] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title 1. This Act may be cited as the Superannuation Legislation Amendment Act 1991. Commencement 2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Section 26 is taken to have commenced on 18 December 1986. (3) Sections 82, 83 and 84 are taken to have commenced on 1 July 1990. (4) Sections 10, 11 and 60 are taken to have commenced on 1 April 1991. (5) Sections 13, 16, 21, 34, 46, 47, 50, 53 and 55 commence on the day on which this Act receives the Royal Assent or immediately after the commencement of section 53 of the Commonwealth Funds Management Limited Act 1990, whichever is the later. PART 2—AMENDMENTS OF THE SUPERANNUATION ACT 1976 Principal Act 3. In this Part, "Principal Act" means the Superannuation Act 19761. Interpretation 4. Section 3 of the Principal Act is amended: (a) by inserting after paragraph (ea) in the definition of "eligible employee" in subsection (1) the following paragraph: "(eb) a person who has made an election under section 6a of the Superannuation Act 1990;"; (b) by omitting paragraph (a) from the definition of "final annual rate of salary" in subsection (1) and substituting the following paragraph: "(a) if paragraph (b), (c) or (d) does not apply in relation to the person—the person's annual rate of salary on his or her last day of service; or"; (c) by adding at the end of the definition of "final annual rate of salary" in subsection (1) the following word and paragraph: "or (d) if the person on his or her last day of service had, or would have had if that last day of service were the anniversary of his or her birth, an imputed annual rate of salary within the meaning of paragraph 47(1)(b) that was higher than the rate mentioned in paragraph (a), (b) or (c) — that imputed annual rate of salary;"; (d) by omitting from subsection (1) the definition of "retirement pensioner" and substituting the following definition: " 'retirement pensioner' means: (a) a person to whom age retirement pension, early retirement pension or invalidity pension is payable; or (b) a person who has ceased to be an eligible employee and has made an election under section 110t;"; (e) by inserting in subsection (1) the following definitions: " 'deferred annuity' means an annuity that cannot be surrendered or assigned by the person in respect of whom it was purchased until that person attains the age of 55 years and under which benefits are payable to, or in respect of, the person only in one or more of the following circumstances: (a) the person retired from the workforce and attained an age of not less than 55 years; (b) the retirement of the person from the workforce before attaining the age of 55 years on the ground of permanent invalidity; (c) the death of the person; (d) the permanent departure of the person from Australia; (e) such other circumstances as the Insurance and Superannuation Commissioner within the meaning of the Occupational Superannuation Standards Act 1987 approves; (f) such circumstances as are prescribed; 'extra spouse's pension' means pension payable under Division 3a of Part VI; 'preservation fund' means a fund that preserves benefits paid into it in accordance with standards prescribed under the Occupational Superannuation Standards Act 1987;". Meaning of "re-employed former contributor with preserved rights" 5. Section 4b of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph: "(a) the person: (i) was a contributor under the superseded Act; or (ii) has ceased to be an eligible employee; and". Retirement on ground of invalidity 6. (1) Section 7 of the Principal Act is amended by omitting from subsection (2) "unfit to perform his duties" and substituting "totally and permanently incapacitated within the meaning of Part IVa". (2) Despite the amendment of the Principal Act made by subsection (1), subsection 7 (2) of the Principal Act as in force immediately before the commencement of this section continues to apply in respect of a person who ceased to be an eligible employee before that commencement. Sections 11 and 13 not applicable to certain persons employed on or after 1 July 1990 7. Section 13a of the Principal Act is amended: (a) by omitting "or the superseded Act" from subparagraph (a) (i); (b) by inserting in subparagraph (a) (ii) "or the superseded Act" after "this Act"; (c) by inserting after subparagraph (a) (ii) the following subparagraph: "(iii) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or". Statutory office holders 8. Section 14 of the Principal Act is amended: (a) by omitting "or the superseded Act" from subparagraph (5) (a) (i); (b) by inserting in subparagraph (5) (a) (ii) "or the superseded Act" after "this Act"; (c) by inserting after subparagraph (5) (a) (ii) the following subparagraph: "(iii) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or". Persons excluded from definition of "eligible employee" 9. Section 15a of the Principal Act is amended: (a) by omitting "or the superseded Act" from subparagraph (2) (c) (ii); (b) by inserting in subparagraph (2) (c) (iii) "or the superseded Act" after "this Act"; (c) by inserting after subparagraph (2) (c) (iii) the following subparagraph: "(iv) a pension of a kind mentioned in section 64a or 65 of the superseded Act as in force immediately before the repeal of that section was, or but for a suspension of payment would have been, payable to him or her; or". Medical examination, and issue of benefit classification certificate, on becoming eligible employee 10. Section 16 of the Principal Act is amended by inserting after subsection (4) the following subsections: "(4a) Subsection (4) does not apply after 31 March 1991 in relation to a person: (a) in respect of whom a benefit classification certificate was not in force on that date; and (b) who was on 30 June 1990, and continued to be until 31 March 1991, an eligible employee. "(4b) Despite subsection (4a), subsection (4) applies to a person mentioned in subsection (4a) who, after 31 March 1991, ceases to be an eligible employee and again becomes an eligible employee. "(4c) Nothing in subsection (4a) affects the operation of section 16ac or subsections 184 (5) to (5c) (inclusive).". Benefit event happening before section 16 procedures completed 11. Section 16aa of the Principal Act is amended by adding at the end the following subsection: "(10) Nothing in this section applies in relation to a person who on 30 June 1990 was, and until the time of the benefit event in relation to the person, being a benefit event that occurred after 31 March 1991, continued to be, an eligible employee.". Commissioner for Superannuation 12. Section 17 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection: "(2) Except as otherwise provided by this Act, the Commissioner is to have the general administration of this Act and the superseded Act.". Functions 13. Section 27c of the Principal Act is amended: (a) by omitting subsection (1) and substituting the following subsection: "(1) The functions of the Board are: (a) to manage and invest the Fund so as to maximise the return earned on the Fund, having regard to: (i) the need to make provision for payments out of the Fund under this Act; and (ii) the need for equity among eligible employees; and (iii) the need to exercise reasonable care and prudence in order to maintain the integrity of the Fund; and (b) to give directions under subsection 7 (2); and (c) to give directions for the purposes of subsection 51 (1); and (d) to give certificates for the purposes of section 54c; and (e) to make decisions relating to the retirement of eligible employees as provided by Part IVa including decisions relating to the making of pre-assessment payments; and (f) to make determinations in respect of income tax as provided by subsection 110q (1a); and (g) to make declarations under subsection 133 (1); and (h) to make declarations under subsection 134 (1); and (i) to give directions under subsection 139a (1a); and (j) to make declarations under subsection 145 (11); and (k) to reconsider decisions in accordance with Part Xa; and (l) to make determinations in respect of interest as provided by section 154a."; (b) by omitting from subsection (2) "paragraph (1) (aa)" (wherever occurring) and substituting "paragraph (1) (a)". Indemnification of members of the Board 14. Section 27r of the Principal Act is amended by adding at the end the following subsection: "(3) Any money becoming payable by the Board in respect of an action, liability, claim or demand is to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.". Decreases in salary 15. Section 47 of the Principal Act is amended: (a) by inserting in subsection (1) "such rate as is relevant to the eligible employee under the regulations or if there is no such rate" after "of this subsection, to be"; (b) by omitting from paragraph (1) (a) "that highest rate" and substituting "that highest annual rate of salary"; (c) by inserting in subsection (3) "such rate as is relevant to the eligible employee under the regulations or if there is no such rate" after "be deemed to be"; (d) by omitting from paragraph (3) (c) "that highest rate" and substituting "that highest annual rate of salary". Leave of absence without pay 16. (1) Section 51 of the Principal Act is amended: (a) by omitting from subsection (1) "Minister" and substituting "Board"; (b) by omitting from subsection (1a) "Minister" and substituting "Board"; (c) by omitting from subsection (2) "Minister" and substituting "Board"; (d) by inserting after subsection (2) the following subsections: "(2a) The Minister may, in writing, formulate principles with respect to the giving by the Board of directions for the purposes of subsection (1). "(2b) The Minister must give to the Chairperson of the Board a copy of any principles formulated under subsection (2a). "(2c) In considering whether to give a direction for the purposes of subsection (1) and whether to give a direction subject to conditions, the Board must have regard to any such principles that are in force."; (e) by omitting subsection (6) and substituting the following subsection: "(6) A person who is on leave of absence without pay for reasons related to: (a) the birth of a child of the person or of the spouse of the person; or (b) the termination (otherwise than by child-birth) of a pregnancy of the person; or (c) the adoption of a child by the person; is taken, for the purposes of this section, not to be absent during that period on leave of absence without pay.". (2) A direction given by the Minister for the purposes of subsection 51 (1) of the Principal Act that was in force immediately before the commencement of this section is taken, after that commencement, to have been made by the Commonwealth Superannuation Board of Trustees No. 2 for the purposes of subsection 51 (1) of the Principal Act as amended by this Act. Interpretation 17. Section 54d of the Principal Act is amended by inserting the following definitions: " 'administering authority' has the same meaning as in the Commonwealth Employees' Rehabilitation and Compensation Act 1988; 'employee', in relation to an administering authority, means a person who under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 is an employee of the administering authority;". 18. Section 54g of the Principal Act is repealed and the following section is substituted: Board to seek recommendations "54g. If the request to the Board was made in relation to a condition in respect of which the eligible employee is entitled to receive compensation under the Commonwealth Employees' Rehabilitation and Compensation Act 1988, the Board must, subject to subsection 54h (1): (a) if the eligible employee is an employee of an administering authority—also ascertain whether or not the administering authority recommends that the eligible employee be retired because he or she is totally and permanently incapacitated; or (b) if the eligible employee is not an employee of an administering authority—also ascertain whether or not Comcare recommends that the eligible employee be retired because he or she is totally and permanently incapacitated.". Board to decide whether to approve retirement 19. Section 54h of the Principal Act is amended by inserting in subsection (1) "or an administering authority, as the case may be," after "Comcare". Determination of requests, payments and rehabilitation programs to be in accordance with the Rules for the administration of the Superannuation (1990) Scheme 20. Section 54k of the Principal Act is amended by inserting after paragraph (a) the following paragraph: "(aa) any reference in those Divisions to an approved medical practitioner were a reference to an approved medical practitioner within the meaning of this Act; and". Repeal of Division 21. (1) Division 5 of Part IVa of the Principal Act is repealed. (2) A person who, immediately before the commencement of this section, was entitled to make an application under a provision of Division 5 of Part IVa of the Principal Act for reconsideration of a decision may, after that commencement, make an application for reconsideration of that decision under the corresponding provision of Part Xa of that Act as amended by this Act. (3) Where, immediately before the commencement of this section, the Board mentioned in Part IVa of the Principal Act had not determined: (a) an application made under Division 5 of that Part; or (b) a matter that it had, of its own motion, referred to a Reconsideration Advisory Committee under that Division; the application is taken to have been made or the matter referred, as the case may be, under the corresponding provision of Part Xa of that Act as amended by this Act and anything done in relation to the application or matter under that Division is taken to have been done under Part Xa. (4) A Reconsideration Advisory Committee established before the commencement of this section under section 54n of the Principal Act that was in existence immediately before that commencement continues in existence after that time as if it had been established under section 153ab of that Act as amended by this Act. Entitlement to age retirement benefit 22. Section 55 of the Principal Act is amended by adding at the end the following subsection: "(4) Payment of benefit to which a person becomes entitled under this section may be postponed under Part VIb.". Entitlement to early retirement benefit 23. Section 59 of the Principal Act is amended by adding at the end the following subsection: "(2) Payment of benefit to which a person becomes entitled under this section may be postponed under Part VIb.". Election for lump sum benefit in case of involuntary retirement 24. Section 62 of the Principal Act is amended: (a) by omitting from subsection (1) "a lump sum"; (b) by inserting in subsection (2) "being a person who ceases to be an eligible employee before 1 July 2000," after "under subsection (1),"; (c) by inserting after subsection (2) the following subsection: "(2a) Where a person makes an election under subsection (1), being a person who ceases to be an eligible employee on or after 1 July 2000, the person is entitled, instead of pension and lump sum benefit to which, but for the election, the person would be entitled under section 55 or 59: (a) if the person has attained the age of 55 years at the time he or she ceases to be an eligible employee and provides the Commissioner with a statement to the effect that he or she has retired from the workforce upon so ceasing—to payment of a lump sum benefit equal to the sum of: (i) 3½ times the amount of the person's accumulated basic contributions; and (ii) the amount of the person's accumulated supplementary contributions (if any); or (b) if the person has not attained that age or provided the Commissioner with such a statement—to have either of the following subparagraphs apply as specified in his or her election under subsection (1): (i) to have an amount equal to the lump sum benefit mentioned in paragraph (a) paid into a preservation fund nominated by the person or applied to the purchase of a deferred annuity selected by the person; or (ii) to payment of an amount equal to the amount of the person's accumulated contributions and to have an amount equal to the balance of the lump sum benefit mentioned in paragraph (a) paid into a preservation fund nominated by the person or applied to the purchase of a deferred annuity selected by the person.". Election to commute 25. Section 64 of the Principal Act is amended by adding at the end the following subsection: "(2) If a pension to which this Division applies becomes, or is about to become, payable on a date worked out under section 110tb to a person who elected to postpone payment of that pension under Part VIb, the person may, not later than 3 months after but not earlier than 3 months before, the pension becomes so payable, make, by notice in writing to the Commissioner, an election to commute that pension into a lump sum benefit payable to him or her.". Reduction of invalidity pensions because of earnings 26. Section 73a of the Principal Act is amended by omitting "annual rate of salary" from paragraph (b) of the definition of "relevant maximum rate" in subsection (1) and substituting "final annual rate of salary". 27. After section 73a of the Principal Act the following section is inserted: Reduction of invalidity pensions because of pre-assessment payments "73b. Where: (a) a person is entitled to receive payments of a kind mentioned in section 54l (in this section called 'pre-assessment payments'); and (b) the person is retired on the ground of invalidity with effect from a day occurring during the period of the person's entitlement to pre-assessment payments; the person is entitled to invalidity pension in respect of a pension pay day immediately preceding a contribution day occurring during that period only to the extent (if any) by which the amount of pension that, but for this section, would be payable exceeds the amount of pre-assessment payment payable on that contribution day.". Entitlement to spouse's benefit on death of pensioner 28. Section 93 of the Principal Act is amended by omitting paragraph (1) (b) and substituting the following paragraph: "(b) if the pensioner: (i) did not make an election under section 64; or (ii) made an election under subsection 64 (2) but died before a lump sum benefit became payable; to spouse's additional pension under section 95.". 29. Division 5 of Part VI of the Principal Act is repealed and the following Division is substituted: "Division 5—Miscellaneous Eligible employee or retirement pensioner survived by one spouse and child not in the custody, care and control of the spouse "109ab. (1) Where a person (in this section called the 'deceased person') who is an eligible employee or a retirement pensioner dies and is survived by one spouse and by an eligible child or eligible children, or a partially dependent child or partially dependent children, not in the custody, care and control of the spouse, benefit is only payable under Division 1, 2, 3 or 3a in accordance with this section. "(2) The amount of spouse's pension payable to the spouse must not exceed: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. "(3) The applicable percentage mentioned in subsection (2) is: (a) if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or (b) if there is one such eligible child—78%; or (c) if there are 2 such eligible children—89%; or (d) if there are 3 or more such eligible children—100%. "(4) The Commissioner must, having regard to: (a) the needs of the spouse; and (b) the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and (c) such other matters as the Commissioner considers relevant; subject to the limitations set out in subsections (5) and (7), determine the part of a benefit to which the spouse is entitled under Division 1, 2, 3 or 3a that is attributable to each such child. "(5) Benefit attributed under subsection (4) to an eligible child or eligible children of the deceased person not in the custody, care and control of the spouse must not exceed in the aggregate: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. "(6) The applicable percentage mentioned in subsection (5) is: (a) if there is one eligible child not in the custody, care and control of the spouse—45%; or (b) if there are 2 such eligible children—80%; or (c) if there are 3 such eligible children—90%; or (d) if there are 4 or more such eligible children—100%. "(7) Benefit attributed under subsection (4) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of: (a) the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or (b) the maximum benefit that, under subsection (5), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of the spouse. "(8) The Commissioner must not determine that a part of spouse's additional pension, being such pension mentioned in sections 89 and 93, is attributable to a partially dependent child or partially dependent children. "(9) Where the Commissioner makes a determination under subsection (4), the spouse may make any election under this Act in relation to the part of a benefit that, under the determination, is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as if the part of the benefit were the whole of the benefit to which the spouse had become entitled. "(10) Where a determination is made under subsection (4), the Commissioner, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as the Commissioner considers relevant, may vary the determination from time to time. "(11) A reference in subsection (2) to spouse's pension does not include a reference to spouse's additional pension mentioned in sections 89 and 93. Eligible employee or retirement pensioner survived by more than one spouse "110. (1) Where a person (in this section called the 'deceased person') who is an eligible employee or a retirement pensioner dies and is survived by more than one spouse, benefit is only payable under Division 1, 2, 3 or 3a in accordance with this section. "(2) Subject to this section and section 110ab, benefit payable under Division 1, 2, 3 or 3a to those spouses is such benefit as would be payable in respect of the deceased person if the deceased person had had only one spouse who survived him or her. "(3) The Commissioner must, having regard to: (a) the respective needs of the surviving spouses; and (b) the respective needs of any eligible child or eligible children, or any partially dependent child or partially dependent children, of the deceased person; and (c) such other matters as the Commissioner considers relevant; allocate any benefit payable in respect of the deceased person under Division 1, 2, 3 or 3a (other than a benefit payable in accordance with section 91) among those spouses, subject to the limitations set out in subsections (4) and (5), and benefit is payable accordingly. "(4) The amount of spouse's pension payable to a spouse must not exceed: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. "(5) The applicable percentage mentioned in subsection (4) is: (a) if there are no eligible children of the deceased person in the custody, care and control of the spouse—67%; or (b) if there is one such eligible child—78%; or (c) if there are 2 such eligible children—89%; or (d) if there are 3 or more such eligible children—100%. "(6) Where, under subsection (3), the Commissioner allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children, or a partially dependent child or partially dependent children, of the deceased person, the Commissioner must determine the part of the benefit that is attributable to each such child other than, in the case of a benefit payable under section 91 or 95, a partially dependent child. "(7) Benefit attributed under subsection (6) to an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses must not exceed in the aggregate: (a) if the deceased person was, immediately before his or her death, an eligible employee who had not attained his or her maximum retiring age—the applicable percentage of the annual rate of the invalidity pension to which the deceased eligible employee would have been entitled under section 67 or 70 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to invalidity pension under that section; or (b) if the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age—the applicable percentage of the annual rate of the standard age retirement pension to which the deceased eligible employee would have been entitled under section 56 if he or she had not died, but had, on the day immediately following the date of his or her death, become entitled to standard age retirement pension under that section; or (c) if the deceased person was, immediately before his or her death, a retirement pensioner—the applicable percentage of the annual rate of pension payable to the retirement pensioner immediately before his or her death. "(8) The applicable percentage mentioned in subsection (7) is: (a) if there is one eligible child not in the custody, care and control of any of the surviving spouses—45%; or (b) if there are 2 such eligible children—80%; or (c) if there are 3 such eligible children—90%; or (d) if there are 4 or more such eligible children—100%. "(9) Benefit attributed under subsection (6) to a partially dependent child or partially dependent children of the deceased person must not exceed in the aggregate the lesser of: (a) the annual rate of the regular maintenance payments being made, or required to be made by order of a court, in relation to the child or children by the deceased person immediately before his or her death; or (b) the maximum benefit that, under subsection (7), could be attributed to the child or children if the child or children were an eligible child or eligible children, as the case may be, of the deceased person not in the custody, care and control of any of the surviving spouses. "(10) Where the deceased person was, immediately before his or her death, an eligible employee who had attained his or her maximum retiring age: (a) the Commissioner, having regard to: (i) the respective needs of the surviving spouses; and (ii) the respective needs of any eligible child or eligible children; and (iii) such other matters as the Commissioner considers relevant; must, for the purposes of ascertaining the benefit payable in accordance with section 91, allocate the accumulated contributions of the deceased person among such spouses; and (b) section 91 applies in relation to a spouse of the deceased person as if: (i) the deceased person had had only one spouse who survived him or her and that person were that spouse; and (ii) the accumulated contributions of the deceased person were the part of those contributions allocated to that spouse under paragraph (a); and (iii) each reference in that section to 13.4 per centum were a reference to such percentage as bears to 13.4 per centum the same proportion as the part of the accumulated contributions of the deceased person allocated to that spouse under paragraph (a) bears to the accumulated contributions of the deceased person. "(11) Where, under subsection (10), the Commissioner allocates a benefit payable in respect of a deceased person and there is an eligible child or eligible children of the deceased person not in the custody, care and control of any of the surviving spouses, the Commissioner must determine the part of the benefit that is attributable to each such child. "(12) Each of the surviving spouses of a deceased person may make such elections under this Act in relation to the part of a benefit allocated to the spouse that is not attributable to a child or children (being a child or children not in the custody, care and control of the spouse) as could be made by the spouse in relation to the benefit if the deceased person had had only one spouse who survived him or her and that person were that spouse. "(13) Where a benefit is payable in accordance with an allocation made under subsection (3) or (10), the Commissioner, having regard to the respective needs of the persons mentioned in that subsection and to such other matters as the Commissioner considers relevant, may vary the allocation from time to time. "(14) Where: (a) benefit is payable to the surviving spouses of a deceased person under subsection 81 (1) or (2); and (b) the spouses are entitled under subsection (12) of this section to make an election under section 84 or 87; and (c) one or more, but not all, of the surviving spouses make such an election; then: (d) unless the Commissioner otherwise directs, orphan pension is not payable in respect of a child (including an adopted child, an ex-nuptial child, a foster child, a step-child or a ward) of a spouse who makes such an election; and (e) if orphan pension becomes payable in respect of a child or children of the deceased person, the rate of the pension is such rate as the Commissioner determines, being a rate equal to such rate as the Commissioner considers would have been the rate of pension payable to, or for the benefit of, that child or those children but for paragraph (d). "(15) Orphan benefit is not payable under section 102, 103, 104, 107 or 108 in respect of the children of a deceased person until the death of the last of the surviving spouses entitled to pension under this section. "(16) A reference in subsection (4) to spouse's pension does not include a reference to spouse's additional pension mentioned in sections 89 and 93. Spouse's pension to be increased in certain circumstances "110ab. (1) If, at any time: (a) spouse's pension is payable: (i) to the spouse of a deceased eligible employee under section 82, 83, 85, 86 or 90; or (ii) to the spouse of a deceased pensioner under section 94 or 96; and (b) the sum of the spouse's pension and extra spouse's pension (if any) is less than the annual rate of the pension by reference to which the rate of spouse's pension is calculated under whichever is applicable of section 82, 83, 85, 86, 90, 94 or 96 (in this section called the 'base amount'); and (c) there is more than one spouse of the deceased eligible employee or pensioner; the spouse's pension is increased under this section. "(2) The increase in the annual rate of spouse's pension is: (a) the applicable percentage of the base amount; or (b) the amount by which the base amount exceeds the sum of the spouse's pension and the extra spouse's pension; whichever is less. "(3) Where, at any time, the spouse's pension is increased under this section, the applicable percentage is: (a) if there are 2 spouses—11%; or (b) if there are 3 spouses—22%; or (c) if there are 4 or more spouses—33%.". 30. After section 110e of the Principal Act the following section is inserted: Interest payable to employer in certain circumstances "110ea. Where: (a) the Minister makes a declaration under section 110e with retrospective effect; and (b) as a result of the making of the declaration, productivity contributions are refunded to an employer; interest in respect of the amount refunded is payable to the employer at the time of refunding the productivity contributions or as soon as practicable afterwards.". Repayment of interim benefits 31. Section 110k of the Principal Act is, amended by inserting in paragraph (1) (b) "and the amount of any interest accruing on that benefit while preserved in the fund" after "benefit" (second occurring). Payments of certain benefits to Fund by new productivity employees 32. Section 110l of the Principal Act is amended by inserting in paragraph (1) (b) "and the amount of any interest accruing on that benefit while preserved in the fund" after "benefit" (second occurring). Productivity benefit 33. Section 110p of the Principal Act is amended by adding at the end the following subsection: "(2) Payment of a productivity benefit that becomes payable in respect of a person under this section may be postponed under Part VIb.". Accumulated employer contributions 34. Section 110q of the Principal Act is amended by omitting subsection (1) and substituting the following subsections: "(1) For the purposes of this Act, the accumulated employer contributions in respect of a person who ceases to be an eligible employee are the sum of: (a) an amount equal to the difference between the sum of the productivity contributions paid or payable in respect of the person and the sum of any amounts in the nature of income tax relevant to those contributions; and (b) interest on the amount mentioned in paragraph (a); and (c) where the person: (i) was an eligible employee on, and at all times after, 30 June 1990; and (ii) was a productivity employee on 1 July 1990; an amount equal to his or her notional interim benefit; and (d) interest on the amount mentioned in paragraph (c); and (e) where an amount has been paid or transferred to the Commissioner under section 110k, 110l or 110m in respect of the employee, other than an amount to which subsection 110n (2) applies—the amount paid or transferred less such amount (if any) in the nature of income tax that is relevant to that amount; and (f) interest on the paid or transferred amount mentioned in paragraph (e). "(1a) For the purposes of subsection (1), an amount in the nature of income tax relevant to a productivity contribution or to an amount paid or transferred to the Commissioner to which paragraph (1) (e) applies is such amount as is calculated in accordance with a determination made by the Board for the purposes of this section. "(1b) A determination by the Board under subsection (1) takes effect from: (a) a specified day; or (b) if no day is specified in the determination—the day of the making of the determination; and must be published in the Gazette". Payment of productivity benefit 35. Section 110r of the Principal Act is amended: (a) by omitting subsection (1) and substituting the following subsection: "(1) Subject to subsection (2), where a productivity benefit becomes payable in respect of a person: (a) because the person: (i) ceased to be an eligible employee on or after attaining the age of 60 years; or (ii) where the person has attained the age of 55 years—is deemed, under subsection 58 (2), to have retired voluntarily; or (iii) where the person has attained the age of 55 years and has not made an election under section 137—is deemed, under subsection 58 (3), to have retired involuntarily; or (b) because of the person's retirement on the ground of invalidity; then: (c) in the case of a person who ceased to be an eligible employee on or after attaining the age of 65 years or who retired on the ground of invalidity—the benefit is payable to the person; and (d) in the case of a person other than a person mentioned in paragraph (c)—the benefit is payable to the person if the person provides the Commissioner with a statement to the effect that he or she has retired from the workforce."; (b) by omitting from subsection (4) ", (7) and (9)" and substituting "and (7)"; (c) by inserting after subsection (4) the following subsection: "(4a) Subject to subsections (5), (6) and (7), where: (a) a productivity benefit becomes payable in respect of a person to whom paragraph (1) (d) applies; and (b) the person does not provide the Commissioner with a statement mentioned in that paragraph; the benefit: (c) if the amount of the benefit is less than $500—is payable to the person; or (d) if the amount of the benefit is $500 or more—must, in accordance with a nomination made by the person: (i) by preserved in a preservation fund nominated by the person; or (ii) be applied to the purchase of a deferred annuity nominated by the person."; (d) by inserting in subsection (5) "or (4a) (c)" after "paragraph (4) (c)"; (e) by inserting in subsection (6) "or (4a) (d)" after "paragraph (4) (d)"; (f) by inserting in subsection (7) "or (4a) (d)" after "paragraph (4) (d)"; (g) by omitting from subsection (8) "subsection (1) or (4)" and substituting "subsection (1), (4) or (4a)"; (h) by omitting subsection (9). 36. After section 110s of the Principal Act the following Part is inserted: "PART VIb—POSTPONEMENT OF BENEFITS OF RETIREMENT PENSIONERS Circumstances in which benefits may be postponed "110t. (1) A person who is, or is about to become, a person who: (a) has attained his or her minimum retiring age but has not attained the age of 65 years; and (b) has become entitled to benefits under section 55 or 59; may, not later than 3 months after but not earlier than 3 months before becoming such a person, by notice in writing given to the Commissioner, elect that this Part apply to him or her. "(2) An election under subsection (1) is only valid if the person provides the Commissioner, not later than 3 months after, but not earlier than, the day on which the person becomes a person mentioned in that subsection, with a statement to the effect that he or she has not retired from the workforce. Effect of election "110ta (1) If a person makes an election under section 110t, payment to the person of: (a) standard age retirement pension or standard early retirement pension, as the case may be, to which the person is, or is about to become, entitled; and (b) any productivity benefit which is, or is about to become, payable in respect of the person under section 110p; is postponed until a date worked out under section 110tb. "(2) If a person who makes an election under section 110t specifies in that election that payment of the additional age retirement pension or additional early retirement pension, as the case may be, to which the person is, or is about to become, entitled, is to be postponed, payment of that pension is postponed until a date worked out under section 110tb. Date on which postponed benefits become payable "110tb. A benefit, the payment of which has been postponed under this Part, becomes payable on the earlier of the following dates: (a) the date on which the person attains the age of 65 years; (b) if the person provides the Commissioner with a statement to the effect that he or she has retired from the workforce—the date on which the statement is so provided. Rates of pension after postponement of payment "110tc. (1) For the purposes of calculating the rate or amount of a benefit payable on a date worked out under section 110tb: (a) if the benefit became payable on the date on which the person attained the age of 65 years—the person is taken to be entitled to standard age retirement pension under subsection 55 (1); and (b) if the benefit did not become payable on the date mentioned in paragraph (a)—the person's age on the date on which the benefit became payable is substituted for the person's age on his or her last day of service; and (c) the person's period of contributory service at the date of ceasing to be an eligible employee continues to be the person's period of contributory service; and (d) the amount worked out under subsection (2) is taken to be the person's final annual rate of salary. "(2) The amount mentioned in paragraph (1) (d) is an amount equal to the amount per annum that the Commissioner determines would have been the final annual rate of salary of the person on the day immediately before the date on which the benefit became payable if: (a) the person had not ceased to be an eligible employee; and (b) the person had continued to occupy the office or position in respect of which the person's final annual rate of salary was calculated; and (c) account were taken of any increase in salary that would have been received had the person continued to be an eligible employee and continued to occupy that office or position, other than an increase resulting from the person progressing to a higher level of salary within a graduated range of salaries applicable to the office or position held by the person; and (d) there were excluded any allowance or part of a salary (other than an increase in salary mentioned in paragraph (c) that is to be taken into account) that would have been included in the person's final annual rate of salary had the person been an eligible employee on that day but was not included in the person's final annual rate of salary when the person ceased to be an eligible employee. Application of Parts VI and VIa in relation to postponed benefits "110td. Where a person who, under this Part, has postponed the payment of benefits dies before the benefits become payable: (a) Part VI applies in relation to those benefits as if the benefits became payable immediately before the person's death; and (b) Part VIa applies in relation to those benefits as if the benefits became payable because of the person's death. Election by spouse to commute "110te. (1) Where: (a) payment of a pension to a person is postponed under subsection 110ta (2); and (b) the person dies before the pension becomes payable; and (c) the person is survived by a spouse; then, whether or not the person made an election under subsection 64 (2), the spouse may make, not later than 3 months after the death of the person, by notice in writing to the Commissioner, an election to commute that pension into a lump sum benefit payable to him or her. "(2) If a spouse makes an election under subsection (1) to commute a pension, a lump sum benefit equal to the amount of the accumulated contributions of the deceased person is payable to the spouse and spouse's additional pension is not payable under paragraph 93 (1) (b) to the spouse. Payment of lump sum benefit to orphan "110tf. Where: (a) payment of a pension to a person is postponed under subsection 110ta (2); and (b) the person dies before the pension becomes payable; and (c) the person is not survived by a spouse but is survived by the person's child or children; then, whether or not the person made an election under subsection 64 (2), if the surviving child or one or more of the surviving children are, immediately after his or her death, an eligible child or eligible children or, in the opinion of the Commissioner, are likely to become an eligible child or eligible children—a lump sum benefit equal to the sum of the amount of the accumulated contributions of the deceased person and the accumulated employer contributions in respect of the deceased person is payable in respect of that child or those children. Effect of election on benefits already paid "110tg. (1) Where a person has been paid: (a) an amount or amounts by way of pension or by way of pension and lump sum benefit to which the person has become entitled under section 55 or 59 or Part VIa or an amount by way of lump sum benefit to which the person has become entitled under section 62 or Part VIa; and (b) after that amount was, or those amounts were, paid, the person makes an election under section 110t; the election does not have effect unless an amount equal to that amount or to the aggregate of those amounts, as the case requires, is paid to the Commissioner within 7 days after the date of the election or within such further period as the Commissioner, in special circumstances, allows. "(2) Where an amount is paid to the Commissioner by a person under subsection (1), the Commissioner must pay that amount into the Consolidated Revenue Fund and there must be paid out of the Consolidated Revenue Fund (which is appropriated accordingly) into the Superannuation Fund an amount equal to so much of the amount paid to the Commissioner as is equal to the amount that was paid to the Consolidated Revenue Fund under section 112 at the time that the person ceased to be an eligible employee.". Payment of accumulated contributions where no other benefit payable etc. 37. Section 111 of the Principal Act is amended by omitting subsection (1) and substituting the following subsection: "(1) Where: (a) a person ceases to be an eligible employee because of death; or (b) payment of a pension to a person is postponed under subsection 110ta (2) and the person (including a person who made an election under subsection 64 (2)) dies before the pension becomes payable; being a person in respect of whom benefit is not payable under Part VI, a lump sum benefit of an amount equal to the person's accumulated contributions must be paid out of the Fund to his or her personal representatives or to such person or persons (if any) as the Commissioner determines.". Payments into and out of Consolidated Revenue Fund 38. Section 112 of the Principal Act is amended: (a) by omitting from subsection (1) "sub-section (3) and (4a)" and substituting "subsections (3), (4a) and (10a)"; (b) by inserting after subsection (10) the following subsections: "(10a) Where payment of a pension to a person is postponed under subsection 110ta (2), subsection (1) does not apply in relation to the person. "(10b) Subject to subsection (10c), where a pension, being a pension the payment of which has been postponed under subsection 110ta (2), becomes payable to or in respect of a person, the accumulated contributions of the person must be paid out of the Superannuation Fund into the Consolidated Revenue Fund. "(10c Where a person who has postponed payment of a pension under subsection 110ta (2) dies and a benefit by way of a lump sum benefit equal to the person's accumulated contributions becomes payable in respect of the person out of the Superannuation Fund, subsection (10b) does not apply in relation to the person.". Instalments of pension 39. (1) Section 113 of the Principal Act is amended: (a) by omitting from subsection (1) "Pensions" and substituting "Subject to subsection (1a), pensions"; (b) by inserting after subsection (1) the following subsection: "(1a) Partial invalidity pensions are to be paid in fortnightly instalments on contribution days."; (c) by adding at the end the following subsection: "(5) The Commissioner may enter into an arrangement with a person's employer in relation to the payment of an instalment of partial invalidity pension to the person on a contribution day.". (2) Despite the amendments made by this section, where, on the commencement of this section, a person is entitled to a partial invalidity pension, the following rules apply: (a) if that commencement is after a contribution day but on or before the next pension pay day, the person is entitled on that next pension pay day to the full amount of a fortnightly instalment and on the following contribution day to an amount equal to 6/14ths of a fortnightly instalment; or (b) if that commencement is after a pension pay day but on or before the next contribution day, the person is entitled on that next contribution day to an amount equal to 6/14ths of a fortnightly instalment. Payment of part of a spouse's pension etc. attributable to children 40. Section 114 of the Principal Act is amended: (a) by inserting after subsection (1) the following subsection: "(1a) If: (a) the Commissioner determines under Division 5 of Part VI that part of a lump sum benefit to which a spouse is entitled is attributable to an eligible child or eligible children or a partially dependent child or partially dependent children; and (b) because of the child or children not being in the custody, care and control of the spouse, or for any other reason that the Commissioner thinks proper, the Commissioner is of the opinion that payment of that part, or a portion of that part, of the lump sum benefit should be made to a person other than the spouse; the Commissioner may authorise payment of that part, or a portion of the part, to be made to the other person, and payment must be made to the other person accordingly."; (b) by omitting subsection (2) and substituting the following subsection: "(2) A payment of the part, and a payment of a portion of the part, of an instalment of pension or of a lump sum benefit that, under this section, is paid to a person other than the child to which that part or portion is attributable, must be applied for the maintenance, education or other benefit of the child.". Payment of orphan benefit 41. Section 115 of the Principal Act is amended by omitting from subsection (4) the definition of "orphan benefit" and substituting the following definition: " 'orphan benefit' means: (a) orphan pension or a lump sum benefit payable under Division 4 of Part VI; or (b) a lump sum benefit payable under section 110tf.". Transfer value payable in respect of previous employment 42. Section 127 of the Principal Act is amended by inserting after subsection (1) the following subsections: "(1aa) For the purposes of subsection (1), an amount that is a productivity related benefit within the meaning of Part VIa is not to be treated as a transfer value if the productivity related benefit would be the whole of the transfer value. "(1ab) If a transfer value, after becoming payable to or in respect of a person under a superannuation scheme, was paid into a preservation fund, the amount of the transfer value is taken, for the purposes of this Division, to be the sum of the amount of the transfer value and the amount of any interest ac