Retirement Benefits (Miscellaneous Amendments) Act 2001

Retirement Benefits (Miscellaneous Amendments) Act 2001

An Act to amend the Retirement Benefits Act 1993 and the Retirement Benefits Regulations 1994

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Retirement Benefits (Miscellaneous Amendments) Act 2001 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

PART 2 - Retirement Benefits Act 1993 Amended

3.   Principal Act

In this Part, the Retirement Benefits Act 1993 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended as follows:

(a) by omitting the definition of member of a board from subsection (1) and substituting the following definition:

member of a board includes –

(a) in respect of a statutory authority, any chairman, president, deputy, member, or alternate, substitute or acting member, of the board or the governing body of the statutory authority; and

(b) a director of a State-owned company;

(b) by inserting the following definition after the definition of Scheme in subsection (1) :

State-owned company means a company incorporated under the Corporations Act which is controlled by –

(a) the Crown; or

(b) a Government Business Enterprise; or

(c) a statutory authority; or

(d) another company which is itself controlled by an entity referred to in paragraph (a) , (b) or (c) ;

(c) by omitting the definition of State authority from subsection (1) ;

(d) by inserting the following subsection after subsection (2) :

(3)  For the purposes of the definition of "State-owned company" in subsection (1) , the provisions of the Corporations Act relating to control are taken to apply as if the Crown, Government Business Enterprise or statutory authority, as the case may be, were a corporation under that Act.

5.    Section 13 amended (Appropriation and Minister's guarantee)

Section 13 of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(c) "State authority" and substituting "statutory authority";

(b) by omitting from subsection (4)(b) "State authority" and substituting "statutory authority".

6.    Section 28 amended (Power of Minister to approve transfer arrangements)

Section 28(a) of the Principal Act is amended by omitting "State authority" and substituting "statutory authority".

7.    Section 29 amended (Regulations)

Section 29 of the Principal Act is amended by inserting after subsection (10) the following subsections:

(11)  If any of the regulations made under this Act are amended by any other Act –

(a) those amendments have effect notwithstanding the provisions of this section; and

(b) those amendments do not prevent the amendment or rescission of any of those regulations by regulations subsequently made in accordance with this section.

(12)  The application of subsection (11) extends to the Retirement Benefits (Miscellaneous Amendments) Act 2001 and to any Act passed before the commencement of that Act.

8.    Section 29B amended (Members of boards of statutory authorities and State-owned companies)

Section 29B of the Principal Act is amended as follows:

(a) by omitting subsections (1) , (2) , (3) and (4) and substituting the following subsections:

(1)  A person who is, or has been, a member of a board is not, by virtue of that office, entitled to be a member of the contributory scheme and is taken to have had no such entitlement by virtue of that office at any relevant time.

(2)  This section does not apply to a chief executive officer, by whatever name called, of a statutory authority or State-owned company who, under the terms of his or her employment, is required to act as a member of the board of that statutory authority or State-owned company.

(3)  If a person referred to in subsection (1) had been admitted to, and had made contributions to, the contributory scheme before 13 December 2000 –

(a) that person is taken to have ceased to be a member of that scheme on that date; and

(b) the Board must refund to that person the total amount of those contributions together with interest on those contributions at the fund earning rate for the contributory scheme; and

(c) that person is to be placed in the same position as if he or she had been a member of the non-contributory scheme or the accumulation scheme, as the case may require, during the relevant period.

(4)  If a person is making contributions to the contributory scheme and has, at any time, also made contributions to that scheme in respect of any remuneration paid or payable as a member of a board, the Board must, as soon as practicable after the commencement of the Retirement Benefits (Miscellaneous Amendments) Act 2001  –

(a) transfer the amount of those contributions paid as a member of that board, together with interest on those contributions at the rate specified in section 29E , to an investment account in the accumulation scheme for that person; and

(b) place that person in the same position as if, during the period when he or she was a member of that board –

(i) his or her contributions had been determined without reference to that remuneration; and

(ii) he or she had, in respect of the remuneration paid or payable as a member of that board, been a member of the non-contributory scheme or the accumulation scheme, as the case may require; and

(c) notify that person, in writing, of the transfer mentioned in paragraph (a) stating the amount transferred and full particulars of the calculations made by the Board under this section.

(4A)  For the purposes of paragraph (c) of subsection (3) or paragraph (b)(ii) of subsection (4) , the relevant statutory authority or State-owned company must pay to the Board any amount required to give effect to that subsection for the relevant period.

(4B)  Where a person who is contributing to the contributory scheme is, or has been, a member of a board, his or her contributions to that scheme and benefit entitlements under that scheme are to be determined without regard to any remuneration paid or payable as a member of that board.

(b) by inserting in subsection (8) "or State-owned company" after "authority".

9.    Sections 29C , 29D and 29E inserted

After section 29B of the Principal Act , the following sections are inserted in Part 4:

29C.   Membership of contributory scheme by reason of 2 or more positions or capacities

(1)  This section applies to a person who makes contributions to the contributory scheme by virtue of employment in 2 or more positions or capacities in one or more Agencies if the employment in at least one but not all of those positions or capacities qualifies him or her to be a member of that scheme.

(2)  If, before the commencement of the Retirement Benefits (Miscellaneous Amendments) Act 2001 , an account had been established in the non-contributory scheme or the accumulation scheme for a person to whom this section applies, that account is taken to have been validly established.

(3)  Where, in respect of a person to whom this section applies, contributions have been made to the contributory scheme by virtue of employment that does not qualify that person to contribute to that scheme, the Board must, as soon as practicable after the commencement of the Retirement Benefits (Miscellaneous Amendments) Act 2001  –

(a) transfer the amount of those contributions, together with interest on those contributions at the rate specified in section 29E , to an investment account in the accumulation scheme for that person; and

(b) place that person in the same position as if –

(i) his or her contributions had been determined without reference to any employment that did not qualify him or her to contribute to that scheme; and

(ii) he or she had, in respect of that employment, been a member of the non-contributory scheme or the accumulation scheme, as the case may require; and

(c) notify that person, in writing, of the transfer mentioned in paragraph (a) stating the amount transferred and full particulars of the calculations made by the Board under this section.

(4)  For the purposes of subparagraph (ii) of subsection (3)(b) , the relevant Agency must pay to the Board any amount required to give effect to that subsection for the relevant period.

(5)  The contributions of a person to whom this section applies and benefit entitlements under the contributory scheme are to be determined without regard to any employment that does not qualify him or her to contribute to that scheme.

29D.   Indemnity for Crown, Board, &c.

An action does not lie against the Crown, the Board, any member of the Board, the chief executive officer of the Board or any other officer of the Board by reason of the operation of section 29B or 29C or in respect of any advice given, or statement made, in good faith by or on behalf of the Board arising from, or for the purposes of, either of those sections.

29E.   Payment of interest on contributions

For the purposes of sections 29B and 29C , interest is payable on contributions made –

(a) in respect of any part of the relevant period before 25 April 2000, at the rate credited to members of the non-contributory scheme; and

(b) in respect of any part of that period on or after that date, at the rate credited to members of the accumulation scheme in the absence of an election for investment choice under the Trust Deed.

PART 3 - Retirement Benefits Regulations 1994 Amended

10.   Principal Regulations

In this Part, the Retirement Benefits Regulations 1994 are referred to as the Principal Regulations.

11.    Regulation 3 amended (Interpretation)

Regulation 3(1) of the Principal Regulations is amended as follows:

(a) by inserting the following definition before the definition of accumulation scheme :

accumulated leave scheme means a plan or arrangement that allows a participating employee, by accepting a reduction in salary for a certain period, to be granted leave during which he or she will be paid salary at the same reduced rate and includes the State Service accumulated leave scheme and any other accumulated leave scheme approved by a Head of Agency or the chief executive officer, by whatever name called, of a statutory authority or State-owned company;

(b) by omitting "State authority" from paragraph (a) of the definition of Agency and substituting "statutory authority";

(c) by omitting the definition of State authority ;

(d) by omitting the definitions of State-owned company and State Service Act and substituting the following definitions:

State-owned company means a company incorporated under the Corporations Act which is controlled by –

(a) the Crown; or

(b) a Government Business Enterprise; or

(c) a statutory authority; or

(d) another company which is itself controlled by an entity referred to in paragraph (a) , (b) or (c) ;

State Service Act means the State Service Act 2000 ;

statutory authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the Royal Prerogative, where the body or authority, or the governing body of which, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another statutory authority and includes the governing body of any such statutory authority;

12.    Part 9, Division 1 inserted

Before regulation 95 of the Principal Regulations , the following Division is inserted in Part 9:

Division 1 - Reduction in salary

94B.   Interpretation: Division 1

In this Division,

relevant period means the period commencing on the day on which a reduction in a contributor's salary took effect and ending on –

(a) the day on which, by reason of a subsequent increase or increases of salary, his or her salary becomes equal to, or greater than, the salary payable immediately before the reduction took effect; or

(b) the day of resignation, retirement, redundancy or death –

whichever happens first.

94C.   Reduction in salary of certain contributors

(1)  If there is a reduction in the salary of a contributor who is not excluded from the application of this regulation under subregulation (2) , he or she may, in accordance with this regulation, continue to pay the same contributions to the Fund in respect of the relevant period as he or she was paying immediately before the reduction in salary took effect.

(2)  This regulation does not apply to –

(a) an amalgamated contributor; or

(b) a contributor whose hours of work have been reduced by his or her Agency; or

(c) a contributor who participates in an accumulated leave scheme; or

(d) a contributor whose salary is reduced by reason of becoming a part-time employee, whether permanent, fixed-term, temporary or otherwise; or

(e) a member of a board who, under section 29B of the Act, has no entitlement to contribute to the contributory scheme in respect of his or her membership of that board; or

(f) a member of the contributory scheme to whom section 29C of the Act applies.

(3)  The contributor may, within one year after the reduction in his or her salary, apply in writing to the Board for its approval to pay contributions in accordance with this regulation.

(4)  The Board may approve the application if satisfied that it is just and equitable to do so, having regard to the period during which the contributor's salary was higher than his or her salary at the time when the application was made and, if the Board so approves, the Board must accordingly determine –

(a) an amount to be regarded as the contributor's salary for the purposes of this regulation; and

(b) the rate at which contributions should be paid; and

(c) any arrears of contributions and interest required to be paid by the contributor.

(5)  For the purposes of subregulation (4)(a) , the amount determined by the Board must not exceed the contributor's salary immediately before the reduction took effect.

(6)  Where an approval is given under subregulation (4) and the contributor has paid –

(a) contributions in accordance with the Board's determination; and

(b) any arrears of contributions and interest as determined by the Board –

his or her entitlement to a pension or lump sum is to be calculated as if his or her salary had remained as determined by the Board during the relevant period.

94D.   Reduction in salary of amalgamated contributors

If the salary of an amalgamated contributor is reduced –

(a) the contributor must continue to pay the same contributions to the Fund as he or she was paying immediately before the reduction in salary took place; and

(b) the contributor's pension or lump sum benefit is to be calculated as if the salary had remained unaltered.

13.    Part 9, Division 2: Heading inserted

Part 9 of the Principal Regulations is amended by inserting the following heading before regulation 95 :

Miscellaneous powers of Board

14.    Regulation 96 amended (Power of Board to determine invalidity)

Regulation 96(6)(c) of the Principal Regulations is amended by omitting "State authority" and substituting "statutory authority".

15.    Regulation 99 rescinded

Regulation 99 of the Principal Regulations is rescinded.

16.    Regulations 106 and 107 substituted

Regulations 106 and 107 of the Principal Regulations are rescinded and the following regulations are substituted:

106.   Power to apply to Supreme Court for declaration as to validity

(1)  If the Board, after a hearing as provided in regulation 105 , has determined a question or an application adversely to an employee or pensioner, the employee or pensioner may require the Board to apply to the Supreme Court for a declaration in respect of that determination.

(2)  Subject to subregulation (3) , the Supreme Court may, on an application under subregulation (1) , make a declaration, having regard to facts existing and events that had occurred at the time when the declaration is made, as to the validity or otherwise of the determination in respect of which the application is made.

(3)  The Supreme Court must not make a declaration under subregulation (2) in respect of a determination the validity of which cannot be decided at the time when the Court is asked to make the declaration.

(4)  For the purpose of reviewing a determination by the Board, the Supreme Court has all the powers and discretions that are conferred on the Board by law or under the Act.

(5)  The Supreme Court may make a declaration –

(a) affirming the Board's decision; or

(b) remitting the matter to which the Board's determination relates to the Board for reconsideration in accordance with the directions of the Court; or

(c) varying the Board's determination; or

(d) setting aside the Board's determination and substituting a decision for the determination set aside.

(6)  Except as provided in subregulations (7) and (8) , the cost of making the application to the Supreme Court is to be met by the Board from the Fund.

(7)  If an employee or pensioner requires the Board to apply to the Supreme Court for a declaration, he or she must pay to the Board at the time of making that request an application fee of 200 fee units.

(8)  If the Supreme Court is of the view that the request made by the employee or pensioner is frivolous or not in good faith, the Court may award costs in full or part against that employee or pensioner.

(9)  This regulation extends to an application made by the Board to the Supreme Court before the commencement of the Retirement Benefits (Miscellaneous Amendments) Act 2001 which had not been determined before that commencement.

107.   Appeal against decision, determination or order of Board

(1)  Notwithstanding regulation 106 , a person may appeal to a judge against any decision, determination or order of the Board.

(2)  An appeal under this regulation is to be by way of rehearing and instituted, heard and determined in accordance with the Supreme Court Rules 2000 relating to appeals from statutory tribunals other than courts.

[Second reading presentation speech made in:

House of Assembly on 1 NOVEMBER 2001

Legislative Council on 21 NOVEMBER 2001]