Retirement Benefits Amendment Regulations 2006

Retirement Benefits Amendment Regulations 2006

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Retirement Benefits Act 1993 .

18 December 2006

W. J. E. COX

Governor

By His Excellency's Command,

MICHAEL AIRD

Treasurer

1.   Short title

These regulations may be cited as the Retirement Benefits Amendment Regulations 2006 .

2.   Commencement

These regulations take effect on the later of the following days:

(a) the day on which their making is notified in the Gazette;

(b) the day on which a notice is published in the Gazette under section 29 of the Retirement Benefits Act 1993 to the effect that a draft of the regulations has been approved by both Houses of Parliament.

3.   Principal Regulations

In these regulations, the Retirement Benefits Regulations 2005 are referred to as the Principal Regulations.

4.    Regulation 3 amended (Interpretation)

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

(a) by inserting the following definition after the definition of allocated pension account :

allot means debit an amount from one RBF member's investment account and credit the amount to another RBF member's –

(a) investment account; or

(b) account in the accumulation scheme;

(b) by inserting the following definitions after the definition of Consumer Price Index :

continued State Fire Commission superannuation scheme means the "continued scheme" as defined in section 3 of the Retirement Benefits (State Fire Commission Superannuation Scheme) Act 2005 ;

continued Tasmanian Ambulance Service superannuation scheme means the "continued scheme" as defined in section 3 of the Retirement Benefits (Tasmanian Ambulance Service Superannuation Scheme) Act 2006 ;

(c) by inserting the following definition after the definition of reversionary pension :

rolled over has the same meaning as in Part 5 of the SIS Regulations;

(d) by inserting the following definition after the definition of SIS Act :

SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth;

(e) by omitting the definition of spouse and substituting the following definition:

spouse, except in regulation 64A and Part 9 , includes the person with whom an RBF member is in a significant relationship, within the meaning of the Relationships Act 2003 ;

(f) by omitting the definition of surviving partner and substituting the following definition:

surviving partner means a person who is determined by the Board under regulation 129A to be the surviving partner of an RBF member;

5.    Regulation 9 amended (Constitution, membership and meetings of Board)

Regulation 9(2)(b) of the Principal Regulations is amended by omitting subparagraph (i) and substituting the following subparagraph:

(i) one is a person elected by –

(A) contributors; and

(B) Members of Parliament to whom the Retirement Benefits (Parliamentary Superannuation) Regulations 2002 apply; and

(C) members of the continued State Fire Commission superannuation scheme; and

(D) members of the continued Tasmanian Ambulance Service superannuation scheme; and

6.    Regulation 54 amended (Preservation of contributions)

Regulation 54(3)(d) of the Principal Regulations is amended by omitting "in the case of an existing contributor who has at any time contributed at a rate greater than 5% of salary,".

7.    Regulation 64A inserted

After regulation 64 of the Principal Regulations , the following regulation is inserted in Division 1:

64A.   Splitting of contributions

(1)  In this regulation –

maximum additional employer contribution amount means the amount that is the same as the maximum splittable amount for taxed splittable contributions as defined in regulation 6.40 of the SIS Regulations;

maximum voluntary and spouse contribution amount means the amount that is the same as the maximum splittable amount for untaxed splittable contributions as defined in regulation 6.40 of the SIS Regulations;

spouse has the same meaning as in section 10 of the SIS Act;

taxed splittable contributions has the same meaning as in regulation 6.41 of the SIS Regulations;

untaxed splittable contributions has the same meaning as in regulation 6.41 of the SIS Regulations.

(2)  A person to whom regulation 62 applies may apply in writing to the Board to roll over or transfer to a complying superannuation scheme, or allot, for the benefit of his or her spouse, an amount standing to the credit of the applicant's investment account.

(3)  An application is to specify –

(a) the amount of the additional employer contributions to be rolled over, transferred or allotted; and

(b) the amount of the voluntary contributions and spouse contributions to be rolled over, transferred or allotted.

(4)  The maximum amount that may be rolled over or transferred to a complying superannuation scheme, or allotted, on an application under subregulation (2) is an amount that consists of one or more of the following amounts:

(a) an amount that does not exceed the maximum additional employer contribution amount of the additional employer contributions made for or on behalf of the applicant –

(i) in the financial year in which the application is made if the whole balance of the applicant's investment account to which the application relates is to be rolled over or transferred at the time the application is processed by the Board; or

(ii) in the financial year immediately preceding the financial year in which the application is made if the whole balance of the applicant's investment account to which the application relates is not to be rolled over or transferred at the time the application is processed by the Board;

(b) an amount that does not exceed the maximum voluntary and spouse contribution amount of the voluntary contributions, and spouse contributions, for which a tax deduction is not claimed under section 82AAT of the Income Tax Assessment Act 1936 of the Commonwealth made for, by or on behalf of the applicant –

(i) in the financial year in which the application is made if the whole balance of the applicant's investment account to which the application relates is rolled over or transferred at the time the application is processed by the Board; or

(ii) in the financial year immediately preceding the financial year in which the application is made if the whole balance of the applicant's investment account to which the application relates is not to be rolled over or transferred at the time the application is processed by the Board.

(5)  The Board must, on receipt of an application –

(a) give effect to the application in accordance with this regulation; and

(b) reduce the balance of the applicant's investment account accordingly.

(6)  Notwithstanding subregulation (5)(a) , the Board must not give effect to an application unless a regulated superannuation fund would be permitted under the SIS Act to give effect to a similar application.

8.    Regulation 65 amended (Inward portability)

Regulation 65 of the Principal Regulations is amended as follows:

(a) by omitting from subregulation (1) "under an employment redundancy programme";

(b) by omitting subregulation (2) and substituting the following subregulation:

(2)  An amount paid into the Fund under subregulation (1) is to be credited to an investment account, or an allocated pension account, in the name of the person, or spouse, referred to in that subregulation who is entitled to receive the benefit referred to in that subregulation.

9.    Regulation 77 amended (Overpayment of pensions or benefits)

Regulation 77 of the Principal Regulations is amended as follows:

(a) by omitting ", owing to a miscalculation or to a mistake of fact for which the person is not responsible,";

(b) by omitting paragraph (b) and substituting the following paragraph:

(b) the Board may write off the whole or any part of the excess amount so paid if it is satisfied that –

(i) forcing that person to repay the excess amount would impose on him or her undue financial hardship or would be inequitable; and

(ii) the payment of the excess amount was not due to the fault of the person.

10.    Regulation 79 amended (Conversion of lump sum benefits to pensions)

Regulation 79(8)(b) of the Principal Regulations is amended by omitting "date of death of the contributor" and substituting "Board's determination under regulation 129A that he or she is the surviving partner of the contributor".

11.    Regulation 86 amended (Right of certain pensioners to commute pensions to lump sum)

Regulation 86(4) of the Principal Regulations is amended by omitting "A person who becomes entitled to a pension under regulation 81(1) may, within 3 months of becoming entitled to that pension," and substituting "A surviving partner who becomes entitled to a pension under regulation 81(1) may, within a period of 3 months immediately following the Board's determination under regulation 129A that he or she is a surviving partner,".

12.    Regulation 129A inserted

After regulation 129 of the Principal Regulations , the following regulation is inserted in Part 13:

129A.   Determination of surviving partner

(1)  If the Board is satisfied that, at the time of an RBF member's death –

(a) a person –

(i) was the spouse of the RBF member who was living with the RBF member on a genuine domestic basis; and

(ii) was receiving significant financial support from the RBF member; or

(b) if there is no person referred to in paragraph (a) , a person was the spouse of the RBF member and was living with the RBF member on a genuine domestic basis; or

(c) if there is no person referred to in paragraph (a) or (b) , a person was the spouse of the RBF member who was not living with the RBF member on a genuine domestic basis but was receiving significant financial support from the RBF member –

the Board must determine that person to be the surviving partner of the RBF member.

(2)  The Board must not determine more than one person to be the surviving partner of an RBF member.

(3)  In determining whether a person is the surviving partner of an RBF member, the Board may have regard to such matters as it considers relevant.

13.    Schedule 1 amended (Election of Members of Board)

Schedule 1 to the Principal Regulations is amended as follows:

(a) by omitting paragraph (b) from subclause (1) of clause 4 and substituting the following paragraph:

(b) is to be signed by –

(i) in the case of the nomination of a person to be a member of the Board under regulation 9(2)(b)(i) , 2 persons, each of whom is –

(A) a contributor; or

(B) a Member of Parliament to whom the Retirement Benefits (Parliamentary Superannuation) Regulations 2002 apply; or

(C) a member of the continued State Fire Commission superannuation scheme; or

(D) a member of the continued Tasmanian Ambulance Service superannuation scheme; or

(ii) in the case of the nomination of a person to be a member of the Board under regulation 9(2)(b)(ii) , 2 persons, each of whom is –

(A) a member of the accumulation scheme; or

(B) a member whose entitlements under these regulations arise only from an account established under regulation 62 or 68 ; and

(b) by omitting paragraph (a) from subclause (1) of clause 7 and substituting the following paragraph:

(a) in the case of the election of a person to be a member of the Board under regulation 9(2)(b)(i) , he or she is –

(i) a contributor; or

(ii) a Member of Parliament to whom the Retirement Benefits (Parliamentary Superannuation) Regulations 2002 apply; or

(iii) a member of the continued State Fire Commission superannuation scheme; or

(iv) a member of the continued Tasmanian Ambulance Service superannuation scheme; or

14.    Schedule 3 amended (Calculation of Certain Pensions for Existing Contributors and Amalgamated Contributors)

Clause 2 of Schedule 3 to the Principal Regulations is amended by omitting subclause (3) and substituting the following subclause:

(3) If –

(a) the Board determines under regulation 118 that an existing contributor is suffering from total and permanent incapacity or partial and permanent incapacity; and

(b) the existing contributor was, on the last day of his or her employment, employed otherwise than on a full-time basis –

the prospective service for the existing contributor is to be calculated in accordance with the following formula:

where –

PS is the existing contributor’s prospective service expressed in years;

A is the period expressed in years commencing on the day immediately following the date of cessation of employment of the existing contributor and ending on the day on which he or she attained, or would have attained, the relevant age specified in subclause (1) or (2) , as appropriate;

B is the full-time equivalent of the existing contributor’s length of service expressed in years as at the date of cessation of employment;

C is the existing contributor’s length of service expressed in years as at the date of cessation of employment.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 27 December 2006

These regulations are administered in the Department of Treasury and Finance.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations amend the Retirement Benefits Regulations 2005 by –

(a) providing for the rollover, transfer or allotment from an investment account, for the benefit of a person's spouse, of a certain amount of the contributions made by, for or on behalf of the person; and

(b) updating and clarifying certain provisions.