New South Wales: Parliamentary Contributory Superannuation Act 1971 (NSW)

Parliamentary Contributory Superannuation Act 1971 No 53 An Act to establish a contributory superannuation scheme for members of the Legislative Council and the Legislative Assembly in substitution for the scheme contained in the Legislative Assembly Members Superannuation Act 1946; to repeal that Act and certain other Acts; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act and commencement (1) This Act may be cited as the Parliamentary Contributory Superannuation Act 1971. (2) This Act shall commence upon a day to be appointed by the Governor and notified by proclamation published in the Gazette. 2 (Repealed) 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— actuary means a person who is a Fellow or Accredited Member of the Institute of Actuaries of Australia. Commonwealth taxation law means a law of the Commonwealth that provides for the levying and collection of a tax. contributions, in relation to a person, means amounts deducted from that person's salary pursuant to the provisions of this Act. designated employer has the same meaning as in the Parliamentary Remuneration Act 1989. family law superannuation legislation has the same meaning as it has in Part 4A. federal member means a member of either House of the Parliament of the Commonwealth. financial year means the period commencing on the first day of July in any year and ending on the thirtieth day of June in the next following year. general election means a general election of Members of the Legislative Assembly. Insurance and Superannuation Commissioner means the Insurance and Superannuation Commissioner holding office under the Insurance and Superannuation Commissioner Act 1987 of the Commonwealth, and includes a person acting in that office. member means member of the Legislative Council or the Legislative Assembly or a person who has ceased to be such a member but is in receipt of salary. other benefits includes a refund of contributions, and any interest payable thereon. Parliamentary Contributory Superannuation Scheme means the contributory superannuation scheme established by this Act. penalty, in relation to a Commonwealth taxation law, includes (but is not limited to)— (a) a penalty rate of taxation under that law, and (b) the loss of a concessional rate of taxation under that law. relevant Commonwealth superannuation standard means a standard that would be applicable under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth if the Fund was a regulated superannuation fund under that Act. salary, in relation to a member or a former member, means— (a) all moneys payable, whether before or after the commencement of this Act, by way of salary or special allowance to him or her under the Constitution Act 1902, the Parliamentary Allowances and Salaries Act 1956 or any corresponding previous enactment, and (b) all remuneration payable to him or her under the Parliamentary Remuneration Tribunal Act 1975, excluding any portion specified under section 7A of that Act as being in the nature of an allowance for electoral or other expenses, and (c) all remuneration payable to him or her under the Parliamentary Remuneration Act 1989 by way of basic salary or additional salary, and (d) the cost of any employment benefits (within the meaning of the Parliamentary Remuneration Act 1989) provided to the member or former member (as determined by the designated employer), and (e) if salary sacrifice contributions are made in respect of the member or former member under this Act, the amounts payable for those contributions under section 18AA, and (f) if salary sacrifice contributions are made in respect of the member or former member under section 14F of the Parliamentary Remuneration Act 1989, the amounts of those contributions, and includes any allowance (other than a living away from home allowance) payable to a member under section 17G or 28 of the Constitution Act 1902, as in force at any time before the commencement of the Parliamentary Allowances and Salaries (Amendment) Act 1966, but does not include any electoral allowance payable under section 28 of the Constitution Act 1902, as in force at any time before the commencement of section 15 of the Parliamentary Remuneration Tribunal Act 1975. salary sacrifice contribution—see section 18AA. spouse of a member, or former member, who has died means the widow or widower, as the case may be, of the member or former member. superannuation contributions surcharge means the superannuation contributions surcharge imposed under the Superannuation Contributions Tax Imposition Act 1997 of the Commonwealth. superannuation guarantee shortfall has the same meaning as it has in the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. the former Act means the Legislative Assembly Members Superannuation Act 1946. the Fund means the Parliamentary Contributory Superannuation Fund maintained under this Act. triennial actuarial investigation means an actuarial investigation under section 10 (1). trustees means the Trustees of the Parliamentary Contributory Superannuation Fund constituted by this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes included in this Act do not form part of this Act. 4 Amendments require certificate of approval It is not lawful for the Legislative Assembly to originate or pass any vote, resolution or Bill for the amendment of this Act unless a certificate approving the amendment made by the vote, resolution or Bill has been first issued by the Parliamentary Remuneration Tribunal, or any successor of the Tribunal, during the Session in which the vote, resolution or Bill is proposed to be passed. Part 1A Closure of Scheme from 2007 general election 4A Closure of Parliamentary Contributory Superannuation Scheme (1) The Parliamentary Contributory Superannuation Scheme is closed to members elected at or after the 2007 general election, other than continuing members. (2) Accordingly, a member elected at or after the 2007 general election who is not a continuing member is not entitled— (a) to have deductions made from the member's salary under this Act, or (b) to have any period of service during which the member is not a continuing member after that election taken into account in determining any benefit payable to or in respect of the member under this Act. (3) For the purposes of this Act, a person is a continuing member if— (a) the person was a member of either House of Parliament at any time within the period of 3 months before polling day at the 2007 general election, and (b) (Repealed) (c) since polling day at that election, the person has not ceased to be a member of either House of Parliament for a continuous period exceeding 3 months. (4) In this Part, 2007 general election means the first State general election held after the commencement of this section. Part 2 Administration Division 1 The Parliamentary Contributory Superannuation Fund 5 Parliamentary Contributory Superannuation Fund The trustees must maintain in the Treasury, or in such other place as the trustees determine, a fund to be called the Parliamentary Contributory Superannuation Fund. 6 Payments into and out of the Fund (1) The Fund shall consist of— (a) the moneys and investments that immediately before the commencement of this Act constituted the Legislative Assembly Members Provident Fund under the Legislative Assembly Members Superannuation Act 1946, (b) all deductions from the salaries of members and salary sacrifice contributions made pursuant to Part 3 and any payments made by members under section 31A, (c) payments, advances and loans made by the Treasurer as provided for by this Act, and (d) all moneys howsoever arising by reason of investment of the Fund. (2) There shall be paid from the Fund all pensions and other benefits, lump sums, interest payable on preserved benefits, allowances and other payments provided for in this Act. (3) There is to be paid from the Fund fees payable to the trustees arising under the family law superannuation legislation or Part 4A, including administration costs arising under the family law superannuation legislation or Part 4A. 7 Financial arrangements (1) The trustees may, under and subject to Part 6 of the Government Sector Finance Act 2018, enter into financial arrangements within the meaning of that Part. (2) The trustees must invest money standing to the credit of the Fund that is available for investment through an investment manager or managers who undertake to invest and manage that money on behalf of the trustees. (3) The trustees may appoint one or more investment managers for the purposes of this section. (4) The trustees must not, from the assets of the Fund or in obtaining borrowings— (a) lend money to a contributor for, or to a person entitled to or receiving, a benefit under this Act, either by lending the money directly or by lending it under arrangements entered into in the exercise of a general power of investment of the assets of the Fund, or (b) borrow money or maintain an existing borrowing of money, whether by way of a secured or unsecured loan, otherwise than to obtain temporary finance, or (c) invest any of the assets of the Fund otherwise than on an arms-length basis, unless it is an investment in an in-house asset within the meaning of Part 8 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (5) The trustees are taken to have complied with subsection (4) from 1 July 1990 to the commencement of that subsection. 8 Investment strategy (1) The trustees must determine and give effect to an investment strategy for the Fund (the investment strategy) and a strategy for the prudential management of any reserves of the Fund (the reserves strategy). (2) The investment strategy must have regard to the circumstances of the Fund, including but not limited to the following— (a) the risk involved in making, holding and realising, and the likely return from, the investments having regard to the schemes' objectives and their cash flow requirements, (b) the composition of the investments as a whole, including the extent to which the investments are diverse or involve exposure to risks from inadequate diversification, (c) the liquidity of the investments having regard to the schemes' cash flow requirements, (d) the ability of the Fund to discharge its existing and prospective liabilities, (e) any other matter which a trustee is required to consider in determining an investment strategy under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (3) The reserves strategy must be consistent with the investment strategy and the ability to discharge the existing and prospective liabilities of the Fund (whether actual or contingent) as and when they fall due. (4) In determining the reserves strategy, the trustees must have regard to any other matter which a trustee is required to consider in determining a reserves strategy under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. 9 (Repealed) 10 Actuarial investigations (1) An investigation as to the state and sufficiency of the Fund shall be made as at the thirtieth day of June, one thousand nine hundred and seventy-two, and as at the expiration of each period of three years thereafter. (2) Any such investigation shall be made by an actuary appointed by the trustees. (2A) The actuary must complete the investigation, and report the result to the trustees, not later than 6 months after the date as at which the investigation is made. (2B) The Minister may, in relation to a particular investigation, extend or further extend the period referred to in subsection (2A) if the Minister considers that special circumstances exist to justify an extension or further extension. (2C) The trustees must, not later than 3 months (or such other period as is approved by the Minister) after receiving a report under this section, forward the report to the Minister with such comments as the trustees think fit. (3) The actuary must recommend to the trustees the amount that, in addition to any other money payable into the Fund, should, in the actuary's opinion, be paid into the Fund in respect of each financial year during the period of 3 years following the completion of the investigation to enable the Fund to meet its liabilities. (3A) In subsection (3), the reference to money payable into the Fund includes a reference to any interim advances— (a) that were paid into the Fund before completion of the investigation, or (b) that an actuary has recommended, under subsection (4), should be paid into the Fund. (3B) The report referred to in subsection (2A) must— (a) include a statement of the value of the assets of the Fund and its liabilities, and (b) include a statement of any liability for benefit payments that are not expected to be covered by— (i) the assets of the Fund, or (ii) any future contributions to, or earnings of, the Fund, or (iii) any guarantee by the Government or by any of its agencies, or (iv) an appropriation in respect of the Fund, and (c) state the number of members of the Parliamentary Contributory Superannuation Scheme, and (d) state the amount of benefit payments, investment earnings and administrative expenses since the last triennial actuarial investigation, and (e) summarise the major economic, demographic and legislative changes affecting the Fund since the last triennial actuarial investigation, and (f) include a statement on the impact of the matters referred to in paragraphs (b)–(e) on the assets and liabilities of the Fund, and (g) include such other matters as are referred to the actuary by the Minister or trustees. (4) If the trustees are of the opinion that investments may have to be realised to pay current liabilities of the Fund before any of the annual amounts recommended or to be recommended in accordance with subsection (3) are paid, the trustees may at any time appoint an actuary to make recommendations in relation to amounts that may need to be paid into the Fund by way of interim advances. 10A Interim actuarial investigation (1) The Minister may appoint an actuary to make an interim actuarial investigation between triennial actuarial investigations. (2) The Minister must not appoint an actuary to make an interim actuarial investigation within a period of 3 months after the completion of an actuarial investigation or within a period of 6 months before the next triennial actuarial investigation. (3) The actuary must complete the investigation, and report the result to the Minister, not later than on the date appointed by the Minister or such later date or dates as the Minister may appoint if the Minister considers that special circumstances exist to justify an extension or further extension. 11 Payments by Treasurer into the Fund (1) After considering any relevant recommendations of actuaries under section 10 (3) or (4), the trustees must give to the Treasurer advice in relation to the contributions and interim advances that may need to be paid into the Fund. (2) The Treasurer is to pay into the Fund annual contributions and interim advances as determined by the Treasurer after considering the advice of the trustees. (3) Payments to be made under this Act by the Treasurer into the Fund shall be paid from the Consolidated Fund which is hereby appropriated accordingly. 12 (Repealed) 13 Cheques Cheques drawn on any account containing moneys belonging to the Fund in any bank, building society or credit union shall be signed as prescribed by the regulations. Division 2 The Trustees of the Fund 14 Trustees of the Fund (1) The trustees of the Fund are— (a) 7 members of the Parliamentary Contributory Superannuation Scheme appointed by the trustees (an appointed trustee), and (b) the Secretary of the Treasury. (2) An appointed trustee vacates office on ceasing to be a member of the Parliamentary Contributory Superannuation Scheme. (3) On a vacancy occurring in the office of appointed trustee, for any reason, the trustees must appoint a member of the Parliamentary Contributory Superannuation Scheme to replace the vacating trustee. (4) An appointed trustee may be removed by— (a) the trustees, or (b) after consultation with the trustees, the Treasurer on reasonable grounds. (5) Subject to this section, an appointed trustee holds office for the period specified in the trustee's instrument of appointment, which must not exceed 4 years. (6) An appointed trustee is eligible for reappointment. 14A Trustees to be a body corporate (1) There is constituted by this Act a body corporate with the corporate name of the Trustees of the Parliamentary Contributory Superannuation Fund. (2) The body corporate is to consist of the trustees who are holding office under section 14. 15 Functions of trustees (1) The functions of the trustees are— (a) to administer the Parliamentary Contributory Superannuation Scheme, and (b) to ensure that the Fund is invested and managed in accordance with this Act, and (c) to pay benefits to or in respect of members and former members, and (d) to make such other payments as are provided for by this Act. (2) The trustees are trustees for the purposes of the Trustee Act 1925 and are required to hold in trust for the persons entitled to benefits under this Act all contributions and other money paid or payable to the trustees. (3) The trustees must use the assets of the Fund to pay benefits to or in respect of the members and former members and to pay the costs and expenses of the investment and management of the Fund. (4) The trustees have power in New South Wales and elsewhere to do all things necessary or convenient to be done for, or in connection with, the exercise of the functions specified in subsection (1) and, in particular, may— (a) engage investment advisers and other kinds of consultants, and (b) appoint agents and attorneys and act as agent for others, and (c) take action to control or manage, or to enhance or protect, the value of any investment made out of the Fund, or to enhance or protect the return on any such investment. (5) In exercising their functions, the trustees must— (a) have regard to the interests of members and other persons entitled to benefits under this Act, and (b) have regard to the Heads of Government Agreement, that commenced on 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and (c) have regard to the future liabilities of the fund. 15A Trustees may delegate their functions The trustees may delegate to— (a) a trustee, or (b) a committee that consists of or includes one or more trustees, or (c) a person whose services are made use of under section 15B, any of their functions, other than this power of delegation. 15B Staff of the trustees The trustees may, with the approval of the Minister or authority concerned, arrange for the use of the services of any staff, or the facilities, of a Government department, an administrative office or a public or local authority. 15C Trustees may establish committees (1) The trustees may establish committees to assist them in exercising their functions. (2) A person may be appointed as a member of such a committee even though he or she may not be a trustee. (3) The procedure for calling meetings of such a committee and for the conduct of business at those meetings may be decided by the trustees or, subject to any decision of the trustees, by the committee. 16 Meetings of trustees (1) There shall be a chairperson and a vice-chairperson of the trustees, each of whom shall be appointed by the trustees. (1A) (Repealed) (2) The chairperson, or in his or her absence from any meeting, the vice-chairperson, shall preside at any meetings of the trustees and in the absence from any meeting of both the chairperson and the vice-chairperson the trustees may elect one of their number to preside at that meeting. (3) The trustees may act by a majority of those present at any meeting of the trustees at which a quorum is present. (4) The procedure at any meeting of the trustees shall, subject to the provisions of the regulations, be such as the trustees may determine, and the quorum for any meeting of the trustees shall be 4 trustees. (5) A direction of the trustees shall continue in force until revoked by a subsequent direction of the trustees, notwithstanding any changes in the persons who are trustees and notwithstanding that, for any other reason, there are for a time no trustees. 17 Appointment of person to act in absence of Secretary of the Treasury The Minister may appoint the Deputy Secretary of the Treasury or some other officer of the Treasury to act in place of the Secretary of the Treasury as trustee during the illness or absence of the Secretary of the Treasury, and any person so appointed shall while so acting exercise and perform all the powers, authorities, duties, functions and obligations of a trustee. 17A Indemnification of trustees etc (1) Any matter or thing done, or omitted to be done, in good faith by— (a) a trustee in the exercise of the trustee's functions under this Act, or (b) a person acting in accordance with the directions of the trustees, does not subject the trustee or person personally to any action, liability, claim or demand. (2) Subsection (1) does not preclude the trustees from being subject to any action, liability, claim or demand. Part 3 Contributions, pensions and benefits 18 Deductions from salaries of members From each instalment of salary payable to a member, commencing with the first instalment paid after the commencement of the Parliamentary Contributory Superannuation (Amendment) Act 1979, there shall be deducted an amount equal to 12½ per cent of the gross amount of the instalment before any deductions. 18AA Salary sacrifice contributions (1) The whole or part of the amount required to be deducted from the salary of a member under this Act may be paid by salary sacrifice contributions, if the member elects to make salary sacrifice contributions and the designated employer and the trustees approve of the election. (2) A salary sacrifice contribution is a contribution paid in accordance with an approval by the designated employer under which the member elects to forgo remuneration yet to be earned and the remuneration foregone is to be applied by the designated employer to the amount required to be deducted from the salary of a member under this Act. (3) The amount payable for a salary sacrifice contribution to meet the requirement for a salary deduction under this Act is to comprise the following— (a) the amount necessary (taking into account any deductions not made on a salary sacrifice basis) to meet the required deductions under this Act (the contribution element), (b) the amount necessary to meet any tax payable under Commonwealth taxation law in respect of the amount paid under paragraph (a). (4) A salary sacrifice contribution is to be paid within the same period as a deduction from salary under section 18. (5) An election under this section— (a) may be made only in respect of future salary instalments, and (b) is to be in writing to the designated employer, and (c) is to be accompanied by any information required by the trustees and the designated employer, and (d) takes effect when it is approved by the designated employer and the trustees, and (e) may be varied or revoked by notice in writing to the designated employer and the trustees. (6) In this Act and the regulations, a reference (however expressed) to any of the following is taken to include a reference to the contribution element of a salary sacrifice contribution in accordance with an election under this section— (a) a deduction from salary, (b) a contribution by or in respect of a member. (7) In this Act and the regulations, a reference (however expressed) to— (a) an employer-financed component of a benefit does not include a reference to a salary sacrifice contribution or any part of a benefit financed by a salary sacrifice contribution, and (b) an employee-financed component of a benefit includes a reference to a contribution element of a salary sacrifice contribution and any part of a benefit financed by the contribution element of a salary sacrifice contribution. (8) This section has effect despite any other provision of this Act. 18A Acceptance of contributions (1) Despite any other provision of this Act, deductions from a member's salary are not required to be made during any period specified by the trustees for which the trustees determine that they must not accept contributions in respect of the member. (2) The trustees may make such a determination only if they are of the opinion that it is necessary to do so in order to be consistent with a relevant Commonwealth superannuation standard. (3) A period in respect of which deductions are not made under this section is not to be taken into account when determining the member's superannuation benefit under section 19. 18B Election to cease salary deductions on reaching age 65 (1) A member may elect, by notice in writing served on the trustees, to cease to have deductions from salary instalments made under section 18 if— (a) the member is 65 years or more of age, and (b) the member has been entitled to salary in respect of an aggregate period of 20 years or more (including any period before the commencement of this section). (2) A member may not revoke an election made under this section. (3) An election made under this section takes effect when it is approved by the trustees. (4) On the election taking effect, deductions from the member's salary are not required to be made under this Act. (5) An election under this section continues to have effect if, after ceasing to be a member, the person again becomes a member. (6) A benefit payable under this Act to or in respect of a member who makes an election under this section is to be calculated as if the member ceased to be entitled to receive salary on the day the election took effect. (7) A benefit is not payable under this Act to or in respect of a member who makes an election under this section until it is payable under another provision of this Act. 19 Members' superannuation benefit (1) Subject to this Act, a person who has been entitled to salary (either after or partly before and partly after the commencement of this Act) in respect of an aggregate period of 7 years or more shall, on ceasing to be a member and to be entitled to salary, be entitled to be paid out of the Fund until death an annual pension at the rate ascertained in accordance with the formula— where— A is an amount calculated at the rate equal to the aggregate of 48.8 per cent of current basic salary and, in respect of each month during which the person was entitled to receive salary as a member exceeding in the aggregate 7 years, 0.2 per cent of current basic salary, or the rate of 80 per cent of current basic salary, whichever is the lesser, B is the total salary received by that person, and C is the total basic salary in respect of that person. (1A), (1B) (Repealed) (2) For the purpose of calculating any instalment of pension payable under subsection (1) at any particular time, current basic salary means— (a) where the person entitled to the instalment last served as a member in the Legislative Council—the salary payable at that particular time to a member of the Legislative Council (other than a Minister of the Crown or a recognised office holder within the meaning of the Parliamentary Remuneration Tribunal Act 1975 and other than a recognised office holder within the meaning of the Parliamentary Remuneration Act 1989) and expressed at an annual rate, or (b) where the person entitled to the instalment last served as a member in the Legislative Assembly—the salary payable at that particular time to a member of the Legislative Assembly (other than a Minister of the Crown or a recognised office holder within the meaning of the Parliamentary Remuneration Tribunal Act 1975 and other than a recognised office holder within the meaning of the Parliamentary Remuneration Act 1989) and expressed at an annual rate. (3) For the purpose of subsection (1), the total salary received by a person shall not include any salary which that person received in respect of any period before the first day of January, one thousand nine hundred and fifty-two. (4) For the purpose of subsection (1), the total basic salary of a person who is entitled to a pension and who last served in the Legislative Council is the sum of the following amounts— (a) the total amount (if any) that, during any period (not being a period before 1 January 1952) during which that person was entitled to salary, was payable from time to time as salary or allowances to a member of the Legislative Council under section 17G of the Constitution Act 1902 other than— (i) any expense allowance or living away from home allowance, or (ii) any amount payable as an allowance to that member only in his or her capacity as the person recognised as the principal representative of the members of the Legislative Council not being supporters of the Government or as salary to that member only in his or her capacity as the President, or Chair of Committees, of the Legislative Council, and (b) the total amount (if any) that, during any period during which that person was entitled to salary, was payable from time to time as remuneration under the Parliamentary Remuneration Tribunal Act 1975 to a member of the Legislative Council (other than a Minister of the Crown or a recognised office holder within the meaning of that Act), excluding any portion thereof specified under section 7A of that Act as being in the nature of an allowance for expenses, and (c) the total amount (if any) that, during any period during which that person was entitled to salary, was payable from time to time as remuneration by way of basic salary or additional salary under the Parliamentary Remuneration Act 1989 to a member of the Legislative Council (other than a recognised office holder within the meaning of that Act). (4A) For the purpose of subsection (1), the total basic salary of a person who is entitled to a pension and who last served in the Legislative Assembly is the sum of the following amounts— (a) the total amount (if any) that, during any period (not being a period before 1 January 1952) during which that person was entitled to salary, was payable from time to time as salary or allowances to a member of the Legislative Assembly under section 28 of the Constitution Act 1902, other than any electoral allowance, special expenses allowance or additional allowance, and (b) the total amount (if any) that, during any period during which that person was entitled to salary, was payable from time to time as remuneration under the Parliamentary Remuneration Tribunal Act 1975 to a member of the Legislative Assembly (other than a Minister of the Crown or a recognised office holder within the meaning of that Act), excluding any portion thereof specified under section 7A of that Act as being in the nature of an allowance for electoral or other expenses, and (c) the total amount (if any) that, during any period during which that person was entitled to salary, was payable from time to time as remuneration by way of basic salary or additional salary under the Parliamentary Remuneration Act 1989 to a member of the Legislative Assembly (other than a recognised office holder within the meaning of that Act). (5) Notwithstanding anything contained in this section, other than this subsection, where the annual pension of a former member who last served in the Legislative Council would, but for this subsection, be greater than his or her entitlement to the annual pension ascertained on the basis of this subsection, he or she shall be entitled to an annual pension at the rate to which he or she would have been entitled— (a) had he or she been a member of the Legislative Assembly during the whole of the period he or she was a member of the Legislative Council, (b) had he or she held an office in the Legislative Assembly of the like nature to that which he or she held in the Legislative Council (the office of Vice-President of the Executive Council being regarded for the purpose of this paragraph as the office of a Minister) for any period during which he or she held such an office in the Legislative Council, and (c) had his or her total salary included, if he or she held at any time the office of Leader or Deputy Leader of the Government in the Legislative Council, any salary which he or she was entitled to receive as the holder of that office. (6) If the trustees have made a determination under section 26D in relation to a benefit provided by this section, the amount of the benefit is reduced by the amount specified in the trustees' determination. (7) (Repealed) (8) Where by the operation of section 13A of the Constitution Act 1902 the seat of a member becomes vacant, the member shall not be entitled to a pension under this Act but shall be entitled to have refunded to him or her the amounts deducted under this Act or the former Act from salary paid to him or her less any amount previously refunded to him or her under this subsection or under the former Act and the amount of any reduction resulting from a determination under section 26D. (9) Notwithstanding anything contained in this Part, other than this subsection, where a former member has served in both the Legislative Council and the Legislative Assembly and the trustees are satisfied that the annual pension (in this subsection referred to as basic annual pension) of that former member is less than the annual pension to which he or she would have been entitled under this Part, other than this subsection, had that former member not served in the Legislative Council, the trustees may in their absolute discretion direct payment to that former member of an annual pension, additional to his or her basic annual pension, of such amount as the trustees think fit, but so that the aggregate of the amount of the basic annual pension and the amount of the additional annual pension under this subsection does not exceed the annual pension that would have been payable to him or her under this Part had that former member not served in the Legislative Council. 19AA Member or former member charged with or convicted of serious offence (1) This section applies in respect of a person— (a) who ceases to be a member while proceedings for a serious offence are pending against the person, or (b) who ceased to be a member if proceedings for a serious offence are instituted against the person for conduct that occurred when the person was a member. (2) Any entitlement of such a person as a former member to receive a pension under this Part is suspended while proceedings for the serious offence are pending against the former member. However, the trustees may lift the suspension and reinstate the person's entitlement to a pension pending the finalisation of the proceedings if satisfied that the suspension is not in the public interest. (3) If the finalisation of the proceedings results in the person not being convicted of any serious offence, the suspension of pension entitlement is lifted and the person's entitlement to a pension is reinstated. (4) If the finalisation of the proceedings results in the person being convicted of a serious offence— (a) the person ceases to have any entitlement to receive a pension or any further payment of a pension under this Part, and any pension already paid is to be repaid to the Fund, and (b) any election under section 20 (Right to convert pension to lump sum entitlement) in respect of the pension (since the person last became a member) is of no effect and is taken never to have been made, and any lump sum payment made under this Part pursuant to any such election is to be repaid to the Fund, and (c) the person's net contributions are to be refunded to the person, except as otherwise provided by this section. (4A) If the person, before being convicted of the serious offence, had been in receipt of a pension or had received a lump sum payment pursuant to an election under section 20, the trustees may refund net contributions by deducting the amount of the refund from any pension already paid, or any lump sum payment, that the person is required to repay to the Fund under subsection (4). (4B) If the conviction of the person is quashed by a court after the finalisation of the proceedings for the serious offence, the trustees must, on application by the person, reinstate the person's pension and repay to the person any amount of pension, or any part of the lump sum, that the person has repaid to the Fund. (5) If proceedings for a serious offence cease to be pending before the proceedings are finalised, the suspension of pension entitlement is lifted and the person's entitlement to a pension is reinstated. (6) If a person's entitlement to a pension is reinstated following the lifting of a suspension or following the quashing of the person's conviction— (a) the reinstatement has effect from immediately before the entitlement to pension was suspended or terminated and as if the entitlement had not been suspended or terminated, and (b) an election may be made under section 20 (2) within 3 months after the entitlement is reinstated. (7) While a former member's entitlement to a pension is suspended under this section, the trustees may authorise payment to the former member from the Fund of an advance on the refund of the former member's net contributions under subsection (4) (c). However, if the suspension of the former member's entitlement to a pension is lifted, any such advance is to be repaid or recouped by the trustees by deduction from any pension or other payment due to the former member on the lifting of the suspension. (8) Criminal proceedings are not considered finalised for the purposes of this section until the end of the appeal period and until any appeal against conviction or acquittal, lodged within the appeal period, has been determined or has lapsed or been withdrawn. The appeal period is— (a) the period within which an appeal may be lodged (but excluding any extension to that period that a court may grant), or (b) the period of 12 months after the conviction or acquittal, whichever is the earlier. (8A) Criminal proceedings that result in a person being convicted or acquitted are still pending for the purposes of this section until they are finalised for the purposes of this section. (9) This section extends to proceedings taken outside New South Wales. (10) In this section— cease to be a member means cease to be a member and to be entitled to salary. net contributions means the amounts deducted under this Act or the former Act from salary paid to the person less any amount previously refunded to him or her (under this section or otherwise) and less the amount of any reduction resulting from a determination under section 26D. serious offence means— (a) an offence committed in New South Wales that is punishable by imprisonment for life or for a term of 5 years or more or an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence so punishable, or (b) an infamous crime. 19A Variation of certain annual pensions (1) In this section— former member means a person who— (a) last served as a member of the Legislative Council, and (b) ceased to be such a member on or before 6 November 1978. prescribed time means— (a) 1 January 1980, and (b) any time after 1 January 1980 at which the salary payable to a member of the Legislative Assembly (other than a Minister of the Crown or a recognised office holder within the meaning of the Parliamentary Remuneration Tribunal Act 1975 and other than a recognised office holder within the meaning of the Parliamentary Remuneration Act 1989) is varied. (2) Notwithstanding anything in section 19 or 23, where— (a) a former member is entitled to an annual pension under section 19, or (b) the spouse or de facto partner of a former member is entitled to an annual pension under section 23, the amount of the annual pension payable from the Fund to that former member or to that spouse or de facto partner, as the case may be, immediately before a prescribed time is varied at and from that prescribed time in the same manner and by the same percentage as the variation at that prescribed time of the salary payable to a member of the Legislative Assembly other than a Minister of the Crown or a recognised office holder within the meaning of the Parliamentary Remuneration Tribunal Act 1975 and other than a recognised office holder within the meaning of the Parliamentary Remuneration Act 1989. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (3) The amount of the annual pension payable from the Fund to a person to whom subsection (2) applies may be varied only in accordance with that subsection. 19B Deferral of certain pensions (1) Despite any other provision of this Act, a pension, or part of a pension, payable under section 19 to a former member is payable by the trustees to the former member only if— (a) the former member has attained the age of 55 years, or (b) a pension is payable under section 19D or 19E. (2) (Repealed) (3) In this section, and sections 19C–19F, a pension, or part of a pension, that is not payable because of this section is a deferred pension. (4) This section applies to a former member who first becomes a member after the date of assent to the Parliamentary Contributory Superannuation Amendment Act 1999. 19C Calculation of deferred pension (1) The value of a deferred pension when it first becomes payable is to be calculated in accordance with section 19 as at the date the former member ceased to be a member, except that the current basic salary for the purpose of that section is to be calculated as at the date the deferred pension becomes payable under section 19B. (2) If a former member in respect of whom a pension has been deferred under section 19B dies— (a) section 23 (2) applies in respect of the spouse or de facto partner of the former member in the same way as it applies in respect of the spouse or de facto partner of a member who has been entitled to salary for an aggregate period of 7 years or more, and (b) section 23B applies in respect of a dependent child of the former member in the same way as it applies in respect of a dependent child of a deceased member or former member. 19D Payment of deferred pension in cases of hardship (1) The trustees may, on the written application of a former member, pay the former member the former member's deferred pension on the ground of the former member's financial hardship. (2) In determining whether a pension is payable to a former member under this section, the trustees must have regard to the following matters— (a) the financial circumstances of the former member and his or her capacity to meet reasonable and immediate financial commitments, (b) any other matters the trustees think relevant and appropriate. 19E Payment on grounds of ill-health or incapacity (1) The trustees may, on the written application of a former member, pay the former member the former member's deferred pension on the ground of the former member's ill-health or physical or mental incapacity. (2) The trustees must not determine that a pension is payable under this section unless the trustees are satisfied that the former member would, if still a member, be incapable of performing the duties of a member because of ill-health or physical or mental incapacity. (3) For the purposes of satisfying the trustees that a pension is payable under this section, the former member must provide such medical and other evidence or information as the trustees require. (4) In particular, the medical evidence must include a certificate or certificates acceptable to the trustees, signed by 2 medical practitioners, certifying that the former member would, if still a member, be incapable of performing the duties of a member due to ill-health or physical or mental incapacity. 19F Applications for payment of deferred pensions (1) A former member may, at any time, lodge with the trustees an application to vary or revoke an application under section 19D or 19E. (2) An application under section 19D or 19E is to be in a form approved by the trustees for the purposes of this section. 20 Right to convert pension to lump sum entitlement (1) In this section— entitled to a pension means that a pension is payable by the trustees under this Part. former member does not include a person who is entitled to a pension under section 22. (2) Despite anything in this Act, except subsection (2A), the following former members may elect, by notice in writing served on the trustees, to convert the whole or part of the former members' pension entitlements to lump sum entitlements determined in accordance with subsection (3)— (a) a former member who is entitled to a pension under this Part but who is not a former member referred to in paragraph (b) or (c), (b) a former member who becomes, on ceasing to be a person whose right to a pension is suspended under section 25 (2), entitled to a pension under this Part, (c) a former member who is entitled to a pension as a result of a direction given by the trustees under section 26 (2). (2A) Notwithstanding subsection (2), a former member referred to in subsection (2) (b) or (c) is not entitled to make an election under subsection (2) if he or she has in respect of any previous event had an opportunity to make an election under subsection (2) since he or she last ceased to be a member. (2B) For the purposes of subsection (2A), where any event has occurred which entitled a former member to make an election under subsection (2) within the period of three months after the occurrence of that event, as referred to in subsection (11), that former member shall be deemed to have had, in respect of that event, an opportunity to make an election under subsection (2) if— (a) his or her right to receive a pension under this Part was not suspended under section 25 (2) or section 26 (1) within the period of three months after the occurrence of that event, or (b) having made an election under subsection (2) within the period of three months after the occurrence of that event, that election was not, by subsection (9), deemed never to have been made. (3) A lump sum payment referred to in subsection (2) shall be the amount that is ten times the amount of the annual pension entitlement in respect of which the election is made. (3A) For the purposes of subsection (2), the maximum amount of pension entitlement that may be the subject of an election under that subsection by a former member referred to in subsection (2) (c), is the lesser of the following amounts— (a) the pension entitlement of the former member, if the entitlement had not been suspended under section 26 (1), (b) the annual pension entitlement directed to be paid to the former member under section 26 (2) as at the date from which a pension is first payable to the former member under section 26 (2), (c) the annual pension entitlement of the former member as at the date immediately before the election under this section is received by the trustees. (4) A former member who makes an election under subsection (2) shall be entitled to receive from the trustees a lump sum payment calculated under subsection (3) and any pension payable under this Part to that former member in respect of any period which commenced on or after the day on which the election is received by the trustees shall (except a pension payable pursuant to a pension entitlement arising by virtue of a direction given under section 26 (2) the amount of which has been reduced by reason of his or her having received that lump sum) be reduced in accordance with section 21B. (5) Notwithstanding any other provision of this section, any lump sum payment under this section shall first be applied by the trustees in or towards paying into the Fund the outstanding amount of any repayment under section 24 by the former member who made the election under this section in respect of that lump sum. (6) Notwithstanding anything in this section, where the trustees are of the opinion that a former member— (a) who has become entitled to a pension under this Part, and (b) who has, under subsection (2), made an election in respect of a prescribed part of his or her pension entitlement, would, within twelve months after his or her so becoming entitled, be likely to have his or her pension cease or suspended under section 25 or 19AA, the operation of that election shall, subject to subsection (7), be deferred for such period not exceeding twelve months as the trustees may determine. (7) The trustees may at any time reduce the period of deferment of an election under subsection (6). (8) During the period of deferment of his or her election, a former member is entitled to payment of his or her annual pension entitlement under this Part. (9) If, during the period of deferment of his or her election, the pension of a former member ceases or is suspended under section 25 or 19AA, that election shall be deemed never to have been made. (10) Where, during the period of deferment of his or her election, the pension of a former member does not cease or is not suspended under section 25 or 19AA, the lump sum that would have been payable under subsection (3) but for the deferment shall become payable to him or her less payments made to him or her pursuant to subsection (8) in respect of that part of his or her annual pension entitlement that was the subject of his or her election. (11) An election under subsection (2) must be made— (a) in the case of a former member referred to in subsection (2) (a)—not later than 3 months after the former member becomes entitled to a pension under this Part, (b) in the case of a former member referred to in subsection (2) (b)—not later than 3 months after the former member ceases to be a person whose right to a pension is suspended under section 25 (2), (c) in the case of a former member referred to in subsection (2) (c)—not later than 3 months after the giving of the direction under section 26 (2) that resulted in the former member first becoming entitled to a pension under section 26 (2) and that was given after the former member's pension was last suspended under section 26 (1). 21 Provisions applicable when the person becomes a member after receiving a pension as a former member Notwithstanding anything in this Act where a person who on ceasing to be a member converted part of his or her pension entitlement to a lump sum payment under section 20 and again becomes a member and that person again becomes entitled to a pension under this Part, the amount of the annual pension payable to him or her shall be reduced in accordance with section 21B. 21A Interpretation of annual pension entitlement for purposes of secs 20, 21 and 25 For the purposes of sections 20, 21 and 25— (a) the total annual pension to which a former member referred to in subsection (9) of section 19 is entitled, or (b) the annual pension for the time being directed to be paid to a person under subsection (2) of section 26, shall be deemed to be the annual pension entitlement of that former member or that person, as the case may be. 21B Calculation of pensions following conversion to lump sum (1) This section applies where the amount of pension payable to a person is to be reduced, under section 20 (4) or 21, because of an election under section 20 to convert part of a pension entitlement to a lump sum. (2) The annual pension is to be reduced— (a) in the case of a person who, immediately before the commencement of the Parliamentary Contributory Superannuation (Amendment) Act 1989, was a member or in receipt of a pension under this Part—by the amount of annual pension in respect of which the election was made, or (b) in any other case—by an amount calculated in accordance with the following formula— where— R represents the amount of the reduction. C represents the amount of annual pension in respect of which the election concerned was made. E represents the annual pension entitlement immediately before the election concerned was made. F represents the amount that would be the current annual pension entitlement of the former member if he or she had not made the election concerned. (3) In the event that any person— (a) by becoming a member on a second or subsequent occasion, has become for a second or subsequent time entitled to a pension under this Part, and (b) has made an election or elections under section 20, the person's pension is to be reduced in accordance with subsection (2) in respect of the first and any subsequent election made. (4) In the case of a person to whom subsection (3) applies who makes more than one election— (a) successive reductions of pension are to be calculated using the formula given in subsection (2) (a), in the case of a member referred to in subsection (2) (a), or subsection (2) (b), in the case of a member referred to in subsection (2) (b), and (b) for the purposes of any such calculation, the values to be assigned to the symbols E and F in that formula are to reflect any reduction of annual pension entitlement resulting from previous calculations. 22 Pension on retirement on grounds of ill-health (1) Where a member produces to the trustees such medical and other evidence as satisfies them that he or she has ceased to be a member because he or she has been rendered incapable of performing the duties of a member by reason of ill-health or physical or mental incapacity, he or she shall if he or she is not entitled to a pension under this Part other than this section, be entitled to a pension calculated in accordance with the formula specified in subsection (1) of section 19. (1A) The medical evidence referred to in subsection (1) must include a certificate or certificates acceptable to the trustees, signed by 2 medical practitioners, certifying that the member is incapable of performing the duties of a member due to ill-health or physical or mental incapacity. (2) Notwithstanding the provisions of subsection (1), a person who, after the commencement of this Act, becomes, on any occasion, a member otherwise than by reason of his or her re-election at a general election immediately before which he or she was a member shall not be entitled to a pension under that subsection upon his or her next ceasing after that occasion to be a member unless between that occasion and his or her so next ceasing to be a member he or she has furnished to the trustees a certificate approved by the trustees of a medical practitioner so approved certifying that a medical practitioner authorised by the trustees for the purposes of this subsection has reported to the medical practitioner so approved that the medical practitioner so authorised has examined that person in accordance with the requirements of the trustees and that the medical practitioner so approved is satisfied that that person is not suffering from any physical or mental condition that is likely to render him or her incapable, before the expiration of 7 years from the date of the certificate, of performing the duties of a member. (3) If the trustees have made a determination under section 26D in relation to a benefit provided by this section, the amount of the benefit is reduced by the amount specified in the trustees' determination. 22A Contributors not entitled to pension (1) In this section— refund of contributions, in relation to a person who ceases to be a member, means a refund of that person's contributions and any contributions made by the person under the former Act less any amount (not being an amount which that person has contracted to repay to the Fund pursuant to section 24) previously paid to the person under this Act or under the former Act as a refund of contributions. supplementary benefit, in relation to a person who ceases to be a member, means the amount that is two and one-third times— (a) in the case of a person who has been entitled to salary for an aggregate period of less than 7 years—the amount of the refund of contributions in relation to that person, or (b) in any other case—the amount that would be the amount of the refund of contributions in relation to that person if the last 7 years during which the person was entitled to salary was the only period during which the person was entitled to salary. (2) A person who ceases to be a member after the date of assent to the Parliamentary Contributory Superannuation (Amendment) Act 1981, otherwise than by reason of death or by reason of the operation of section 13A of the Constitution Act 1902, and who is not entitled to a pension under this Part shall be entitled to a refund of contributions and— (a) where the person ceases to be a member involuntarily within the meaning of subsection (3)—payment of the supplementary benefit, or (b) in any other case—payment of one-half of the supplementary benefit. (3) For the purposes of subsection (2), a person ceases to be a member involuntarily if— (a) notwithstanding anything in this subsection, the person has attained the age of 60 years at the time when the person ceases to be a member, (b) the person ceases to be a member by reason of resignation for reasons which to the trustees appear to be good and sufficient, or (c) the person ceases to be a member by reason of the termination, either by dissolution or expiry, of a Legislative Assembly and the person— (i) does not become a candidate at the general election next following that termination by reason of not securing the support of the political party to which the person belonged immediately before so ceasing to be a member, (ii) becomes a candidate but is defeated at that general election, or (iii) does not stand for election at that general election for reasons which to the trustees appear to be good and sufficient. (4) Where— (a) a person ceases to be a member after the date of assent to the Parliamentary Contributory Superannuation (Amendment) Act 1981 by reason of death, (b) that person is not survived by a widow or widower or, if that person died on or after the commencement of Schedule 1.4 [3] to the Superannuation Legislation Amendment Act 1996, by a spouse or de facto partner, and (c) no pension is payable under section 23B in respect of a dependent child of that person, the personal representative of that person shall be entitled to the amount, if any, by which the aggregate of the refund of contributions and payment of the supplementary benefit in relation to that person exceeds the aggregate of any instalments of pension and any other benefit (except a refund of contributions and any interest thereon) paid or payable under this Part in relation to that person. (5) Notwithstanding any other provision of this section, any payment under this section shall first be applied by the trustees in or towards paying into the Fund the outstanding amount of any repayment under section 24 by the person to whom or in respect of whom that payment is required to be made. (6) If the trustees have made a determination under section 26D in relation to a benefit provided by this section, the amount of the benefit is reduced by the amount specified in the trustees' determination. 22B Compulsory preservation of benefits (1) The trustees must, when a lump sum becomes payable under this Act, preserve all or so much of the lump sum as is required to be preserved so as to be consistent with a relevant Commonwealth superannuation standard. (2) The amount of the lump sum that must be preserved under this section in respect of a former member is the amount determined by the trustees, after obtaining actuarial advice. (3) The amount of a benefit that must be preserved under this section is to be preserved in the Fund together with interest from the member's exit date to the date of payment at a rate determined by the trustees. (4) The trustees may establish and maintain within the Fund such accounts and reserves as, in the opinion of the trustees, are necessary or convenient for the administration of this section. (5) The trustees may, from time to time, adjust any account or reserve established under this section by— (a) deducting amounts for the trustees' administration costs in respect of the preserved benefit, and (b) adjusting it for interest at a rate determined by the trustees, having regard to the income of the Fund and such other matters as the trustees consider relevant. 22BA Payment of compulsorily preserved benefit (1) The whole or part of a benefit preserved under section 22B is payable by the trustees in the circumstances in which the whole or part of a benefit may be paid under a relevant Commonwealth superannuation standard. (2) The whole