Sentencing (Superannuation Orders) Act 2004

Victorian Legislation and Parliamentary Documents i Sentencing (Superannuation Orders) Act 2004 Act No. 65/2004 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. New Part 3A inserted 2 PART 3A—SUPERANNUATION ORDERS 2 83B. Purpose of Part 2 83C. Application of Part 2 83D. Definitions 3 83E. Application for a superannuation order 11 83F. Court may make a superannuation order 13 83G. Effect of superannuation order 15 83H. Provisions applying to a superannuation order 16 83I. Powers of an authorised person to require information 16 83J. Protection of administrators providing information 17 83K. Disclosure of information 17 4. Consequential amendments 17 ═══════════════ ENDNOTES 18 -- 1 of 19 -- Victorian Legislation and Parliamentary Documents 1 Sentencing (Superannuation Orders) Act 2004† [Assented to 12 October 2004] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Sentencing Act 1991 to enable a court to make a superannuation order as a new sentencing option where a person who is or has been a public sector employee is convicted of an indictable offence involving abuse of office, corruption or perversion of the course of justice. Victoria No. 65 of 2004 -- 2 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 2 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3. New Part 3A inserted After Part 3 of the Sentencing Act 1991 insert— 'PART 3A—SUPERANNUATION ORDERS 83B. Purpose of Part The purpose of this Part is to enable a court to make a superannuation order as a new sentencing option where a person who is or has been a public sector employee is convicted of an indictable offence involving abuse of office, corruption or perversion of the course of justice. 83C. Application of Part (1) This Part applies in respect of an offender who is convicted of a relevant offence on or after 3 June 2004 irrespective of whether the relevant offence was committed before, on or after that date. (2) A court may make a superannuation order in addition to, or instead of, any other sentence that may be imposed under this or any other Act. (3) Despite section 50, the making of a superannuation order under this Part is not to be taken into account by a court in determining whether to impose a fine on the offender under section 49. s. 2 See: Act No. 49/1991. Reprint No. 7 as at 1 January 2004 and amending Act Nos 2/2002, 13/2003, 53/2003, 10/2004 and 20/2004. LawToday: www.dms. dpc.vic. gov.au -- 3 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 3 83D. Definitions (1) In this Part— "administrators" means the person or persons responsible for the administration of a relevant superannuation scheme; "authorised person" means— (a) the Director of Public Prosecutions; or (b) if the relevant offence is an indictable offence tried summarily, the Chief Commissioner of Police; "dependant", in relation to an offender, means— (a) a child of the offender; or (b) any other person who in the opinion of the court is dependent on the offender or has a legal right to look to the offender for financial support; "domestic partner", in relation to an offender, means a person to whom the offender is not married but with whom in the opinion of the court, the offender is living as a couple on a genuine domestic basis (irrespective of gender); "excluded public body" means— (a) a Council within the meaning of section 3(1) of the Local Government Act 1989; s. 3 -- 4 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 4 (b) an institution listed in Schedule 1 to the Tertiary Education Act 1993 that is a body politic and is governed by a council, some of the members of which are appointed by the Governor in Council or a Minister; "member contributions by way of salary sacrifice" does not include employer contributions for which the employer is or has been liable under the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, under an industrial award or agreement or under the provisions of the governing instrument of the relevant superannuation scheme and which are included in the total remuneration package of a public sector employee; "member financed component" means the amount of the superannuation benefit or superannuation benefits financed by member contributions (including member contributions by way of salary sacrifice, child contributions, spouse contributions or Government co-contributions) as at the relevant date as determined by the administrators of the relevant superannuation scheme after, where appropriate, obtaining advice from an actuary appointed by the administrators; "offender" means a person who has been convicted of a relevant offence; s. 3 -- 5 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 5 "public body" means— (a) a body, whether corporate or unincorporate, that is established by or under an Act for a public purpose; (b) a body whose members, or a majority of whose members, are appointed by the Governor in Council or a Minister; (c) a company all the shares or a majority of the shares in which are held by the State or another public body; (d) a TAFE college within the meaning of the Vocational Education and Training Act 1990; (e) a public hospital within the meaning of the Health Services Act 1988; (f) a State funded residential care service within the meaning of the Health Services Act 1988; (g) a contractor, or a sub-contractor, within the meaning of Part 3A of the Health Services Act 1988, but only in its capacity as a provider of health services to public hospital patients in accordance with an agreement under section 69B(1) of that Act— but does not include an excluded public body; s. 3 -- 6 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 6 "public sector employee" means a person who is, or was, at the time that he or she committed the relevant offence— (a) employed under Part 3 or 7 of the Public Sector Management and Employment Act 1998; (b) a Ministerial officer within the meaning of section 49 of the Public Sector Management and Employment Act 1998; (c) a Parliamentary adviser within the meaning of section 50 of the Public Sector Management and Employment Act 1998; (d) a judicial employee within the meaning of section 51 of the Public Sector Management and Employment Act 1998; (e) an officer of the Parliament or an employee within the meaning of the Parliamentary Officers Act 1975; (f) an electorate officer employed under section 26 of the Parliamentary Officers Act 1975; (g) a member of the teaching service within the meaning of the Teaching Service Act 1981; (h) employed under the Education Act 1958; (i) an officer or other member of the police force of Victoria or a police recruit under the Police Regulation Act 1958; s. 3 -- 7 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 7 (j) a police reservist appointed under section 103 of the Police Regulation Act 1958; (k) a protective services officer appointed under section 118B of the Police Regulation Act 1958; (l) a member of the Parliament; (m) employed by a public body; (n) the holder of an office established by or under an Act to which the right to appoint is vested in the Governor in Council or a Minister; "relevant date" means— (a) if the offender is a member of a relevant superannuation scheme as at the date on which the offender is convicted of the relevant offence, the date in relation to that relevant superannuation scheme on which the offender is convicted of the relevant offence; (b) if the offender has ceased to be a member of a relevant superannuation scheme before the date on which the offender is convicted of the relevant offence, the date in relation to that relevant superannuation scheme on which the offender ceased to be a member of the relevant superannuation scheme; s. 3 -- 8 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 8 "relevant interest amount" means, where the relevant date is not the same as the date of conviction for the relevant offence, the amount of interest for the period commencing on the relevant date and ending on the date of conviction on the amount calculated under paragraph (a) of the definition of "residual employer financed component" using the Treasury bond rate for the last working day of the previous financial year; "relevant offence" means an indictable offence committed by a person at the time when the person was a public sector employee; "relevant superannuation scheme" means any superannuation scheme of which an offender— (a) is a member at the date of the conviction for the relevant offence; or (b) has been a member at any time before that date; "residual employer financed component" means the total sum, as determined by the administrators of the relevant superannuation scheme after, where appropriate, obtaining advice from an actuary appointed by the administrators, of— (a) the value of the total superannuation benefit as at the relevant date after deducting— (i) the member financed component; and s. 3 -- 9 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 9 (ii) the SG component; and (iii) the amount of any adjustment to that superannuation benefit in respect of any surcharge recoverable under the governing instrument of the relevant superannuation scheme; and (iv) the amount (if any) of the superannuation benefit financed by an employer and attributable to service by the member otherwise than as a public sector employee; and (b) any relevant interest amount; "SG component" means the amount determined by the administrators of a relevant superannuation scheme after, where appropriate, obtaining the advice of an actuary appointed by the administrators to be the amount that would have been the minimum employer financed amount necessary to avoid a superannuation guarantee shortfall within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth in respect of the period during which the offender was a public sector employee which falls within the period commencing on 1 July 1992 and ending on the relevant date; "superannuation order" means an order made under section 83F; s. 3 -- 10 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 10 "superannuation scheme" means a scheme one of the purposes of which is to provide superannuation benefits or pensions; "Treasury bond rate" means the Treasury bond rate for the last working day of a financial year for bonds with a 10 year term being— (a) if any Treasury bonds with that term were issued on that day, the annual yield on those Treasury bonds; or (b) in any other case, the annual yield on Treasury bonds with that term as published by the Reserve Bank of Australia for that day; "value of the total superannuation benefit as at the relevant date" means— (a) if the offender is a member of a relevant superannuation scheme as at the date on which the offender is convicted of the relevant offence, the value of the superannuation benefit or superannuation benefits as at the date of the conviction for the relevant offence as if the offender had resigned or retired as at the date of conviction as determined by the administrators of the relevant superannuation scheme after, where appropriate, obtaining advice from an actuary appointed by the administrators; s. 3 -- 11 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 11 (b) if the offender has ceased to be a member of a relevant superannuation scheme before the date on which the offender is convicted of the relevant offence, the value of the superannuation benefit or superannuation benefits as at the date the offender ceased to be a member of the relevant superannuation scheme as determined by the administrators of the relevant superannuation scheme after, where appropriate, obtaining advice from an actuary appointed by the administrators. (2) For the purposes of the definition of "public body" in sub-section (1), a reference to a public body specified in that definition includes a reference to a public body merged, associated or affiliated with, amalgamated into, succeeding or succeeded by that public body. (3) For the purposes of the definitions of "public body" and "public sector employee" in sub- section (1), a reference to an Act specified in those definitions includes a reference to any corresponding previous enactment and to any corresponding subsequent enactment. 83E. Application for a superannuation order (1) If the authorised person is of the opinion that the relevant offence for which a court has convicted an offender— (a) involved an abuse by the person of his or her office as a public sector employee; or s. 3 -- 12 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 12 (b) having regard to the powers and duties of his or her office as a public sector employee was committed for a purpose that involved corruption; or (c) was committed for the purpose of perverting, or attempting to pervert, the course of justice— the authorised person may apply to the court for the court to make a superannuation order. (2) An application must be supported by a certificate given by the administrators of each relevant superannuation scheme specifying— (a) the value of the total superannuation benefit as at the relevant date; (b) the residual employer financed component as at the relevant date; (c) the assumptions made and factors taken into account in determining the amounts referred to in paragraphs (a) and (b); (d) whether or not the information provided is based on actuarial advice; (e) whether the administrators of the superannuation scheme have been served with— (i) a superannuation agreement which provides for a payment split; or (ii) a flag lifting agreement which provides for a payment split; or s. 3 -- 13 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 13 (iii) a splitting order— under Part VIIIB of the Family Law Act 1975 of the Commonwealth and the non-member spouse's entitlements in respect of the superannuation interest in the superannuation benefit of the offender have not been satisfied as at the relevant date. (3) A certificate referred to in sub-section (2) is for the purposes of this Part to be taken to be evidence of the information provided in the certificate. 83F. Court may make a superannuation order (1) If a court receives an application under section 83E and is satisfied that section 83E(1)(a), 83E(1)(b) or 83E(1)(c) applies in respect of the relevant offence, the court may make a superannuation order if the court considers that having regard, as far as is practicable, to the matters specified in sub- section (2) it is appropriate to do so. (2) The matters are— (a) the financial circumstances of the offender, including any other order that the court or any other court has made or proposes to make— (i) providing for the forfeiture of the offender's property or the automatic forfeiture of the offender's property by operation of law; or (ii) requiring the offender to make restitution or pay compensation; s. 3 -- 14 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 14 (b) the nature of the burden that the making of the superannuation order will impose and the degree of hardship likely to result from the making of the superannuation order on the offender or his or her spouse, domestic partner or dependants; (c) whether the administrators of a relevant superannuation scheme have been served with— (i) a superannuation agreement which provides for a payment split; or (ii) a flag lifting agreement which provides for a payment split; or (iii) a splitting order— under Part VIIIB of the Family Law Act 1975 of the Commonwealth and the non-member spouse's entitlements in respect of the superannuation interest in the superannuation benefit of the offender have not been satisfied as at the relevant date; (d) the length of the period of service by the offender as a public sector employee before the offender committed the relevant offence; (e) the length of any period of membership of a relevant superannuation scheme during which the offender was not a public sector employee; (f) the nature and gravity of the relevant offence. s. 3 -- 15 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 15 (3) If the court imposes a superannuation order, the court in determining the amount to be paid by the offender under the superannuation order— (a) must have regard to the matters referred to in sub-section (2); and (b) must not determine an amount which exceeds the total of the residual employer financed components of the superannuation benefits under the relevant superannuation schemes. 83G. Effect of superannuation order (1) A superannuation order takes effect— (a) at the end of the appeal period in respect of the conviction for the relevant offence or the sentence; or (b) if the offender appeals against the conviction or sentence, subject to sub- section (2), upon the determination of the appeal. (2) If the conviction is quashed on appeal, the superannuation order has no effect. (3) If as the result of the determination of an appeal, the court determining the appeal considers that the superannuation order requires variation, the court may vary the superannuation order. (4) A superannuation order varied under sub- section (3) takes effect as if it had been made under section 83F. s. 3 -- 16 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 16 83H. Provisions applying to a superannuation order Sections 53, 54, 55, 56, 59, 62, 63, 64 and 65 apply to and in respect of a superannuation order as if the amount specified in the superannuation order were a fine imposed under section 49. 83I. Powers of an authorised person to require information (1) If the authorised person proposes to make an application in respect of an offender under section 83E, the authorised person may request the administrators of the relevant superannuation scheme to provide any information that the authorised person considers is necessary for the purposes of making the application and which is information the administrators have or ought to have access to. (2) The administrators of the relevant superannuation scheme must comply with a request under sub-section (1). Penalty: 10 penalty units. (3) It is sufficient compliance with a request under sub-section (1) if the administrators of the relevant superannuation scheme provide information in response to the request and certify in writing that they have used their best endeavours to provide that information or are relying on the advice of, or information provided by, a specified third party. s. 3 -- 17 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 17 83J. Protection of administrators providing information The administrators of a relevant superannuation scheme are not to be taken to be in breach of trust or to have failed to comply with any provision of the governing instrument of the superannuation scheme only by virtue of complying with section 83I. 83K. Disclosure of information Except to the extent necessary to comply with section 83E, an authorised person or any person employed or engaged by an authorised person must not make any use of, or disclose to any person, any information obtained under section 83I. Penalty: 5 penalty units.'. 4. Consequential amendments (1) In section 566 of the Crimes Act 1958, in paragraph (a) of the definition of "sentence", after "3," insert "3A,". (2) In section 3(1) of the Magistrates' Court Act 1989, in paragraph (a) of the definition of "sentencing order", after "3," insert "3A,". ═══════════════ s. 4 -- 18 of 19 -- Victorian Legislation and Parliamentary Documents Act No. 65/2004 Sentencing (Superannuation Orders) Act 2004 18 ENDNOTES † Minister's second reading speech— Legislative Assembly: 3 June 2004 Legislative Council: 15 September 2004 The long title for the Bill for this Act was "to amend the Sentencing Act 1991 to provide for the making of a superannuation order as a new sentencing option and for other purposes." Endnotes -- 19 of 19 --